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Forest Rights Act

• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006, is a key piece of forest legislation passed in India on 18 December 2006. It has also been
called the Forest Rights Act, the Tribal Rights Act, the Tribal Bill, and the Tribal Land Act. The
law concerns the rights of forest-dwelling communities to land and other resources, denied to
them over decades as a result of the continuance of colonial forest laws in India.
• Supporters of the Act claim that it will redress the "historical injustice" committed against forest
dwellers, while including provisions for making conservation more effective and more
transparent. The demand for the law has seen massive national demonstrations involving
hundreds of thousands of people.
• However, the law has also been the subject of considerable controversy in the English press in
India. Opponents of the law claim it will lead to massive forest destruction and should be
repealed (see below).

Provisions

The Act as passed in 2006 has the following basic points.

Types of rights

Forest Rights Act:

The legislation was passed on 18 December 2006.

It has also been called the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006,, the Tribal Rights Act, the Tribal Bill, and the Tribal Land Act.

The law concerns the rights of forest-dwelling communities to land and other resources, denied to
them over decades as a result of the continuance of colonial forest laws in India.

Rights under the Act:

The rights which are included in section 3(1) of the Act are:
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1. Right to hold and live in the forest land under the individual or common occupation for
habitation or for self-cultivation for livelihood by a member or members of a forest dwelling
Scheduled Tribe or other traditional forest dwellers;
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2. Community rights such as nistar, by whatever name called, including those used in erstwhile
Princely states, Zamindari or such intermediary regimes;
3. Right of ownership, access to collect, use, and dispose of minor forest produce( includes all non-
timber forest produce of plant origin) which has been traditionally collected within or outside
village boundaries;
4. Other community rights of uses of entitlements such as fish and other products of water bodies,
grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or
pastoralist communities;
5. Rights including community tenures of habitat and habitation for primitive tribal groups and
pre-agriculture communities;
6. Rights in or over disputed lands under any nomenclature in any State where claims are disputed;
7. Rights for conversion of Pattas or leases or grants issued by any local council or any State Govt.
on forest lands to titles;
8. Rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and
other villages in forest, whether recorded, notified or not into revenue villages;
9. Right to protect, regenerate or conserve or manage any community forest resource which they
have been traditionally protecting and conserving for sustainable use;
10. Rights which are recognised under any State law or laws of any Autonomous Dist. Council or
Autonomous Regional Council or which are accepted as rights of tribals under any traditional or
customary law of the concerned tribes of any State;
11. Right of access to biodiversity and community right to intellectual property and traditional
knowledge related to biodiversity and cultural diversity;
12. Any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other
traditional forest dwellers, as the case may be, which are not mentioned in clauses-1 to 11, but
excluding the traditional right of hunting or trapping extracting a part of the body of any species
of wild animal

These can be summarised as:

Title rights – i.e. ownership to land that is being farmed by tribals or forest dwellers subject to a
maximum of 4 hectares; ownership is only for land that is actually being cultivated by the concerned
family, meaning that no new lands are granted.

Use rights – to minor forest produce (also including ownership), to grazing areas, to pastoralist routes,
etc.

Relief and development rights – to rehabilitation in case of illegal eviction or forced displacement; and
to basic amenities, subject to restrictions for forest protection.

nForest management rights – to protect forests and wildlife.

The Act grants legal recognition to the rights of traditional forest dwelling communities, partially
correcting the injustice caused by the forest laws.
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Eligibility to get rights under the Act is confined to those who “primarily reside in forests” and who
depend on forests and forest land for a livelihood. Further, either the claimant must be a member of
the Scheduled Tribes scheduled in that area or must have been residing in the forest for 75 years.

Process of recognition of rights:

The Act provides that the gram sabha, or village assembly, will initially pass a resolution
recommending whose rights to which resources should be recognised. This resolution is then screened
and approved at the level of the sub-division (or taluka) and subsequently at the district level. The
screening committees consist of three government officials (Forest, Revenue and Tribal Welfare
departments) and three elected members of the local body at that level. These committees also hear
appeals.

Issue areas:

• The Union Ministry of Tribal Affairs says that there is no evidence that the process under the
Forest Rights Act (FRA) delays projects, even as there is pressure from the Ministry of
Environment to dilute the law and do away with the condition that gram sabhas should give
consent for projects.
• FRA does not provide any scope to any executive agency for any kind of relaxation of the
applicability of the Act. The responsibility is neither vested in the Environment Ministry nor in
the Tribal Affairs Ministry.
• Tribal Affairs Ministry says that an impression is being created that the
administration/implementation of the FRA is hindering or delaying clearance of the
developmental projects.
• For a long time, it was assumed that forest land was the easiest land to take over for companies,
industries and “development” projects. Now, under the Forest Rights Act, takeover of land
requires the consent of the local communities and the recognition of their rights. This is a huge
step forward for democracy. But the government is not complying with the law. Note: If you are
involved in fighting a project, or for more legal details, please see our note on Using the Forest
Rights Act Against Displacement and Projects. Under the Forest (Conservation) Act, the Central
government’s permission is required before forest land can be used for non-forest uses. In
practice the government has treated this provision as if only the Centre’s permission is required,
and proceeded to hand over huge areas of forest and forest lands to projects and private
companies without consulting or even informing those most affected – the local communities.
• Between 2001 and 2006 alone, more than five lakh hectares of forest land was “diverted” for
non-forest use by the Central government. Even for a year and a half after the Forest Rights Act
came into force, the government continued to grant permission for take over of forest lands,
even though the government was required to recognise people’s rights first. After repeated
mass protests, new orders were issued in August 2009, but these seem to have been ignored in
every case till date.
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Resettlement for wildlife conservation

Section 4(2) of the Act lays out a procedure by which people can be resettled from areas if it is found to
be necessary for wildlife conservation. The first step is to show that relocation is scientifically
necessary and no other alternative is available; this has to be done through a process of public
consultation. The second step is that the local community must consent to the resettlement. Finally,
the resettlement must provide not only compensation but a secure livelihood.

In case land has to be diverted for industrial purposes:

What are the minimum requirements necessary to demonstrate compliance with the FRA prior to
diversion of forest land under the Forest (Conservation) Act, 1980 or any other development activity in
forest areas?

At a minimum, compliance with the FRA requires that:

• The concerned Gram Sabha certifies that the rights recognition process under the FRA is
complete in the area being proposed for diversion, and
• The decision of Gram Sabha in support of diversion of forest land for the stated non-forest
purposes, by way of a resolution. This should be at a meeting convened for the purpose, and
having a quorum of 50%.

Misunderstanding the Act as a land distribution scheme

A great deal of the debate is fuelled by misunderstandings of the purpose of the Act. The most common
is that the purpose of the law is to distribute forest land to forest dwellers or tribals, often claimed to be
at the rate of 4 hectares per family (see for instance this article as an example) The Act is intended to
recognise lands that are already under cultivation as on 13 December 2005, not to grant title to any new
lands.

Criticism by forest rights supporters

While supporting the principles of the law, forest rights supporters are not entirely satisfied with the law
as finally passed. The recommendations of a Joint Parliamentary Committee on the law were partly
rejected, and supporters of forest rights have claimed that some of the rejected clauses were important.
In particular, the final form of the law is said to make it easier to exclude some categories of both tribal
and non-tribal forest dwellers, to have undermined the democratic nature of the processes in the Act
and to have placed additional hindrances and bureaucratic restrictions on people's rights. The Campaign
for Survival and Dignity described the final form of the law as "both a victory and a betrayal" in their
official statement on the occasion.
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Background and previous attempts:

The issue of forest rights in India can be interpreted from different perspectives depending on whether
one is a forest dweller, forest official, environmentalist, economist or social activist. The issue is of
crucial importance considering that forest landscapes cover over 23% of the country and affect the
livelihoods of around 200 million citizens, or 20% of the population in our democratic polity.

Forest-dwelling populations, mainly concentrated in a tribal belt that stretches across the central and
eastern areas of the country, are among the poorest of the poor. Their poverty re ects a history of
systematic marginalisation, with the state customarily expropriating forest land while overlooking, or
even totally negating, their user rights to forest resources. This process began in the late 19th century
during colonial rule and continued after independence under the democratically elected governments,
which also did not consider appropriate actions to resolve the issue.

The history of centralized control of forests can be traced to the enactment of the Forest Act of 1864,
which empowered the colonial government to declare any forest land as government forest; a process
strengthened in the 1878 Act, which classified forests into ‘protected forests’, ‘reserved forests’ and
‘village forests’; the National Forest Policy of 1894, which re-iterated the regulation of rights and
restriction of privileges of ‘users’ in forest areas for the public good; the Land Acquisition Act of 1894,
which permits compulsory acquisition of land for a ‘public purpose’; and the 1927 Act, which remains
the main legal basis for depriving forest dwellers of their user rights to forest resources.

Under the banner of scientific management of forests, the intended objective of these policy
formulations was to maximize profits, encourage conservation and discourage forest dwellers from
‘exploiting’ forest resources. The formal and ‘legal’ appropriation and enclosure of forests inevitably
led to the ‘criminalisation’ of normal livelihood activities of millions of forest-dependent people,
conferring on them the legal status of ‘encroachers’,

The post-colonial Indian state reinforced centralized control of forests with its National Forest Policy
of 1952, which focused on protecting forest resources while commercially exploiting minor forest
produce (MFP), and the Forest Conservation Act of 1980, which placed all forests under the control of
the central government. It also continued utilising other colonial land acquisition laws for the ‘public
good’ in the name of development.
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The displacement of forest dwellers thus continued, the most recent manifestation being their eviction
from their traditional homesteads by forest departments seeking to consolidate the enclosure process
under the Wild Life Protection Act of 1972 and its 1991 amendment, which severely restricted the
rights of forest dwellers in wildlife sanctuaries and curtailed their rights in national parks.

It was this enclosure process that nally united social movements working with forest users across the
country, mobilising them to raise their voice against the denial of democratic right to life and livelihoods
to the vast tribal population.

The strident opposition led to the formulation of a new Scheduled Tribes and Other Traditional Forest
Dwellers Act (or simply Forest Rights Act - FRA), which was passed in December 2006 and came into
force on January 1, 2008 with the notification of its administrative rules.

The FRA provides for restitution of traditional forest rights to forest dwellers across India, including
individual rights to cultivated land in forested landscapes and collective rights to control, manage and
use forests and its resources as common property. It also stipulates the conditions for relocation of
forest dwellers from ‘critical wildlife habitations’ with their ‘free informed consent’ and their
rehabilitation in alternative land. (Thus provision for relocation)

The introduction of the FRA represents a seminal moment in India’s highly contested forest politics,
recognising for the first time the ‘historical injustice’ perpetrated by the state on a significant segment
of its population when it states: ... the forest rights on ancestral lands and their habitat were not
adequately recognized in the consolidation of state forests during the colonial period as well as in
independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and other
traditional forest dwellers (FRA 2006).

The Act, which inherently recognises that a healthy ecosystem is compatible with social justice
technically holds precedence over all other forest and wildlife-related laws. Although its provisions for
restoring the rights of forest-dependent households may not cover all rights deprivations they hold the
promise of improving the lives and livelihoods of more than 100 million of India’s poorest citizens.

However, it is important to remember that the FRA is only an enabling legislation and the ‘prize’ - the
actual allocation of user rights at the local level – crucially depends on its implementation. This is
where it faces serious challenges, as do several other recent legislative reforms that await full
implementation.

(This act applies to all states whether fifth or sixth schedule. Central law, jurisdiction all over India)
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Recognising user rights involves shifting administrative and resource control away from forest
departments, who already exhibit a high degree of autonomy from democratic oversight and stand to
lose turf. But implementation of the FRA is happening, although gradually, as is implementation of the
Right to Information (RTI) Act, National Rural Employment Guarantee Scheme (NREGA) and Panchayat
Extension to Scheduled Areas (PESA) Act.

The FRA is a fundamental reform that represents a ‘critical juncture’ in the relationship between forest
dwellers and the state. But the depth and durability of this reform remains open for research and
exploration.

Blood in the woods

The forest is their home: “Only the recognition and legal protection of their rights can ensure that forest
dwellers get a fair deal.” Picture shows the bereaved family members of Palani, one of the 20 killed in
the Seshachalam forest on April 7. Photo: C. Venkatachalapathy

What drives tribal people to risk their lives, as they did in the Seshachalam forest?

On April 7, 20 woodcutters, mostly tribals from Tiruvannamalai and Dharmapuri districts of Tamil Nadu,
were shot dead by a special task force in the Seshachalam forests of Chittoor district in Andhra Pradesh.
The incident was another in a series of similar ones, symptomatic of the increasing conflict over
resources, stoked by crony capitalism and the rising violence of state and non-state actors. The law is
often mute, helpless to prevent the bloodletting.

Rights activists call such incidents, officially declared as ‘encounter’ killings, premeditated murder.
Highly expendable, this impoverished cannon fodder seems available in plenty from forests and the
fringe villages around them.

Two questions get lost in the cacophony of allegations and counter allegations: Why do forest-dwellers
risk their lives? And why are forests open freely to the forest mafia?

Rich mafia, poor tribals

Forests have always been an open resource for livelihood and cultural interaction for their tribal
inhabitants. When these vast areas were officially notified as ‘forests’, the traditional rights of the
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original inhabitants to access the forest for food, medicinal plants, fodder, fuel, water, cultural and
spiritual activities were mostly not recognised. The result: everything that they traditionally did in the
forests became criminal acts overnight.

Revenue maximisation was the stated goal of the government and the once open forests were now
locked in the tight grip of forest officials, whose job was to fell commercially valuable timber and
transport it out. However, since it was only the tribal people who knew the forest and had the skills to
extract its resources, they were used as labour. Forest settlements were established within forests,
initially for ‘coupe felling’ or indiscriminate clearing of forest land, later replaced by selective felling,
where forest officials marked old, diseased or other trees for felling.

However, with their main source of livelihood and life taken away, the forest dwellers became
vulnerable to the forest mafia, mostly powerful, armed and violent gangs from the hinterland whose
eye was on the protected timber and wildlife. Working through agents such as local shopkeepers or
money-lenders, the mafia preyed on the tribals’ poverty and bonded them into illegal work in the
forests. Forest department officials were no match for these gangs, often succumbing to their
pressure or just turning a blind eye.

Now exploited by both forest officials and the mafia, the forest-dwellers were involved in both legal
and illegal activities. But there was always the fear that the tribals would expose the illegal goings-on.
There was also the need to show that some degree of forest protection was underway. This led to
forest dwellers being routinely arrested for forest offences. The number of cases was notched up to
show efficient forest protection. The forest mafia remained well protected. The odd honest forest
officer faced the brunt of mafia anger if he dared to act; it was safer not to. The forest bureaucracy was
itself divided within.

In 1980, the Forest Conservation Act was enacted, privileging conservation over revenue
maximisation. Afforestation moved to the fore. Non-forestry activities were permitted only after
clearance by the Ministry of Environment and Forest (MoEF) and the Supreme Court (due to the
Godavarman Case continuing since the mid-1990s) and on the payment of Rs.5.8 lakh and Rs.9.2 lakh
per hectare as Net Present Value.

As forests became hotly contested assets for ‘development’ projects and its twin other, ‘conservation’
efforts, the forest-dwellers were pushed further down the hierarchy despite laws that granted them
recognition of their rights. Even the MoEF conceded that a ‘historical injustice’ had been committed on
the forest-dwellers in an affidavit filed in the Supreme Court in 2004 in the Godavarman case.

While becoming increasingly closed to their original inhabitants, forests opened up instead to powerful
economic interests, both legal and illegal. Illegal mining cases filed between 2010 and 2014 were a
whopping 330,512, most of them forest-related. The price of Red Sanders internationally is 10 times
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more than the Rs. 20 lakh per tonne it is here. The Seemandhra government anticipates a few thousand
crores in revenue from its export, which explains all the special operations carried out against Red
Sander smugglers.

The legitimate destruction of forests for the country’s ‘development’ runs parallel with the illegal looting
of forests. The forest-dwellers get no share in either but are used, abused, and evicted from their land
without proper compensation or rehabilitation. The 10 crore people living on forest land and the 27.5
crore forest-dependent people have been pushed to extreme poverty. Millions have migrated to far-
flung places in desperate search of work.

Outside the forests, their rights over revenue land remain largely unrecorded. Those that are recorded
fail to be protected by laws that can restore alienated land to the Scheduled Tribes. Without laws in
Tamil Nadu that recognise and protect their livelihood or lands, it is no wonder that tribal people were
driven to desperately risk their lives for money in the Seshachalam forests.

Looking for solutions

The ill-conceived drive ordered by the MoEF in 2002 resulted in the large-scale and violent eviction of
tribals. The resultant nationwide struggle forced the government to enact the Forest Rights Act of
2006. A new paradigm of forest governance began, from governance of a colonised land and people to
democratic governance with the law conceding the rights of forest-dwellers. Gram Sabhas were to
determine tribal rights and protect, conserve, and manage the forests.

Even sceptics now accept the Forest Rights Act as the only way forward for both forests and the forest
people. The Dongria Khondh used it to protect their revered Niyamgiri Hills in Odisha from being
hollowed out for mining. The Gonds of Gadchiroli in Maharashtra are now the affluent owners of forest
produces rather than mere wage earners.

But a powerful lobby within the forest department continues to resist it. The Act has been challenged
by a number of retired forest officials. For instance, in Andhra Pradesh, it was the J.V. Sharma and
Ors. vs. Union of India and Ors. case, while in Tamil Nadu, it was the V. Sambasivam vs. Union of India
and Ors. case. However, the courts have not stayed the Act, and the cases are now in the Supreme
Court.

Official reports too blame resistance from the Forest Department for the poor implementation of the
law. The Ministry of Tribal Affairs told the Andhra Pradesh government in November 2013 that the titles
issued to ‘forest protection committees’ controlled by the Forest Department contravenes the law, since
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they should be granted only to Gram Sabhas; but as of mid-2010, some 9.48 lakh acres were still titled to
1,669 Forest Protection Committees.

As of January this year, 29,92,853 hectares of forests have been recognised as belonging to forest-
dwelling communities and 15,57,424 titles have been issued across the country. But this is still only
3.8 per cent of the total forest land. And still only about 9 per cent of what is officially recorded as
forest land used by forest communities. Forest-dwellers continue to live in hope that the government
will abide by its own law.

In Tamil Nadu, not a single title has been issued to tribals till date, although 3,723 titles are ready.
Instead, the inhabitants of 2,968 sq. km of forest in four tiger reserves in the State are threatened
with eviction, and 7,935 sq. km of forest land have been drawn up as elephant reserves. The utter
desperation of the tribal people that makes them venture into forests for illegal work is a result of
such moves.

Recognition and legal protection of their rights can alone ensure that forest dwellers get a fair deal.
When forests become open, inclusive and come under the watchful eyes of the forest-dwellers
themselves, forest protection and conservation become possible.

The Seshachalam killing comes from the delusion of gun-toting commandos that they are protecting
forests. Rather than convert forests into conflict zones, conservation is best achieved by those who
know the forest. Guns only do what they do best: kill. Forests, however, are about life and coexistence.

Decisions of the people, by the people, for the people

Standing firm: “The protests of the Dongria Kondhs against Vedanta’s proposal to mine in the Niyamgiri
hills showed a community’s power to provide r withhold consent for a development project.” File photo
of the tribals. Photo: A. Manikanta Kumar

People’s objections, from Chhattisgarh to Odisha, against large development projects have brought
out the real power of the Forest Rights Act of 2006.
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Democracy is alive and kicking in India. No, I am not referring to the Assembly elections. It is unfortunate
that the term democracy has been reduced to the drama of periodic elections and the subsequent
reliance of the electorate on politicians and bureaucrats. When these powerful few do not perform, or,
worse, indulge in cynical manipulation of power, we grumble and curse and await the next elections for
redressal. This is not democracy.

A direct form of democracy

A series of events reported in the last couple of months provides a very different meaning to democracy,
one that harks back to its Greek origin (‘demos’ and ‘kratia’, or power of the people). Unlike the
representative form that most countries have adopted, these events point more to a direct form in
which people on the ground have the primary power of decision-making.

• On March 16, five Adivasi villages in Raigarh, Chhattisgarh, unanimously vetoed the plans of
South Eastern Coalfields Limited (SECL), a subsidiary of India’s public sector coal mining giant
Coal India Limited (CIL), to mine their forests. These villages were Pelma, Jarridih, Sakta, Urba
and Maduadumar.
• On March 23, the Kamanda gram sabha of Kalta G.P in Koida Tehsil of Sundargarh district in
Odisha unanimously decided not to give its land for the Rungta Mines proposed by the Industrial
Infrastructure Development Corporation of Odisha Limited (IDCO).
• On May 4, the National Green Tribunal directed that before clearance can be given the Kashang
hydroelectric project (to be built by the State-owned body Himachal Pradesh Power Corporation
Ltd. or HPPCL), the proposal be placed for approval before the Lippa village gram sabha in
Kinnaur district of Himachal Pradesh. The 1,200 residents of Lippa have been waging a seven-
year struggle against the project.

And then on May 6, the Supreme Court rejected a petition by the Odisha Mining Corporation seeking
the reconvening of gram sabhas in the Niyamgiri hills to consider a mining proposal that the sabhas had
rejected in 2013. The court observed that the conclusion of the gram sabhas at that time was to reject
the mining, and the petitioner would have to approach an appropriate forum if it wanted to challenge
this.

What is the implication of these decisions taken at various levels?

The spirit of the 73rd and 74th Amendments to the Constitution was to move towards more direct
deémocracy in villages and cities. However, though over two decades old, these have hardly been
implemented. Notable exceptions are where communities have taken power into their own hands —
some instances of tribal self-rule in central India; the partial measures of State governments like
Nagaland with its ‘communitisation’ law, providing greater powers over departmental budgets to village
councils; and Kerala with its experiment in peoples’ planning. Generally, the eminent domain status of
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the government has been used to override local objections. Development decisions are top-down, and
communities or citizens have no significant financial and legal powers.

Among the first instances when the power of a community to provide or withhold consent for a
development project was recognised was in the case of the Vedanta corporation proposal to mine in
the Niyamgiri hills. In its order of April 2013, the Supreme Court directed the government to hold
gram sabha meetings to ascertain the opinion of the Dongria Kondh Adivasis living there. All 12 gram
sabhas rejected the project, forcing the Union Ministry of Environment and Forests (MoEF) to withdraw
permission for mining. Loath to give up a lucrative deal, the State government launched a fresh bid to
overturn this by approaching the Supreme Court again in early 2016 (through its Odisha Mining
Corporation). It had, meanwhile, done everything possible to scare the Adivasis into submission through
regular harassment (including imprisonment and killing of tribal members) by armed police forces. The
Adivasis have stood firm in the face of this repression, and the Supreme Court’s recent decision is a
vindication of their campaign.

Community’s consent

• Some of these decisions have also belatedly brought out the real implications of the Forest
Rights Act of 2006, so far poorly implemented in most parts of India.
• The Act provides for recognition of the rights of communities to govern, use, and conserve
forests they have traditionally managed and used, reversing 200 years of colonial and
postcolonial history in which the state had taken over control of forests.
• Logically such a right should mean that any activity in a community-governed forest should be
subject to consent by the community, in recognition of which the MoEF issued a circular in 2009,
requiring such consent for diversion of forests for development projects.
• In one way or the other, most of the above assertions or decisions are linked to such powers
under the Forest Rights Act, coupled with constitutional guarantees and other laws such as the
Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA.
• The principle of ‘free and prior informed consent’ (FPIC), enshrined in international agreements
for some years, was reiterated most strongly in the recent UN Declaration on the Rights of
Indigenous Peoples.
• India has not yet brought this into its legislative framework, other than in partial forms such as
the circular under the Forest Rights Act and the long-forgotten PESA.
• The events of March to May provide an occasion for peoples’ movements to press for FPIC to be
incorporated as a central tenet of all development and welfare planning. Widespread
mobilisation on this is necessary because the Central government is otherwise on an overdrive
to dilute hard-fought rights of freedom of speech and dissent, access to information, and
decentralised decision-making.

Beyond FPIC, deeper democratic reforms would help ordinary people get political, economic, and legal
powers through grass-roots collectives that enable them to take decisions affecting their lives. Such
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direct or radical democracy needs to be the fulcrum on which more representative institutions at larger
scales would operate, downwardly accountable through various mechanisms. Accompanying it would be
alternative pathways of human well-being including forms of economic activity that are ecologically
sustainable, directly in the control of people rather than the state or corporations, more locally self-
reliant and less dependent on fragile global webs of exchange. Many initiatives in India are already
proving the viability of such pathways. Such a democracy will look very different from the partial, rather
lame, form we have today.

Arguments against the FRA:

Soon after daybreak, driving through the forests of Sonitpur district in Assam in late 2005 we made a
quick U-turn when a herd of around 15-20 elephants, young ones in tow, emerged from the forest to
forage right next to the road leading to the fishing camp at the Nameri Tiger Reserve. The night before,
we watched as elephants raided paddy stocks in a village near Balipara, unafraid of the mashaals (fire
torches), drums and yells of the distressed villagers. Even as we turned, the matriarch followed our
vehicle for 20 metres or so, trumpeting protectively from around 30 metres to make sure we got her
message loud and clear.

I know this part of India well and before my eyes, I have seen some of India’s most precious forests
sacrificed to satiate political expediency using mistaken notions of tribal rights as a fig leaf to exchange
land for votes. On a site visit to the same area 10 years later, I found myself speechless at the sheer
destruction. In a decade, virtually the entire standing forest on the right bank of the Jiya Bharoli river
had vanished. In its place were sparse mustard fields and scattered tree stumps that spoke of once-tall
hardwoods whose trunk girth would have been three or four metres at the very least.

Similar stories unfold across vast areas of Sonitpur. We had predicted such disaster when the Forest
Rights Bill was being debated way back in 2004-05. We asked, at the very least, a consensus be arrived
at that individual rights not be included. A leading NGO, Kalpavriksh, amongst the most vociferous
supporters of the flawed FRA, agreed with us in principle but went forward with other groups who
threw such suggestions to the wind. Today, much too late, Kalpavriksh agrees that a site-specific
amendment to Section 3 (1) of the Forest Rights Act (FRA), 2006, should have been made in Sonitpur to
roll back the 2005 cut-off date to 1980, “in consonance with the Forest Conservation Act.” Subsequent
to that admission, no further action was taken.

As we have seen happen time and again with urban slum rehabilitation and regularisation schemes, the
horse had bolted. The barn door was never shut. What ails the FRA?
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• To begin with, the Act was intended only for tribal communities, but this was later extended
to all forest “dwellers”.
• Second, individual rights trumped community rights which is evident from the statistics taken
from the website of the ministry of tribal affairs from the report on FRA implementation.
• According to these statistics, people are predictably keen to claim individual rights as this
enables them to encash real estate and other financial opportunities.
• Third, no time limit was definitively set. Had a cut-off date been effectively applied, we would
not be in a position where even today “deforest, encroach and claim rights” continue
unabated because gram sabhas would have finalised all rights within two years. And the date
was 1980 in the first version of the bill.

Here is what the learned Supreme Court judges had to say in an order passed in response to Writ
Petition(s)(Civil) No(s) 109/2008 and 50/2008.

(IMP)- “Mr Shyam Divan, learned senior counsel for the petitioner placed before us certain statistical
data which indicates that as on September 30, 2015, approximately 44 lakh claims for recognition of the
rights under the above-mentioned Act and grant of pattas came to be filed before the authorities
competent to deal with those claims in various states out of which some of the claims were accepted
and some were rejected. From the information placed before this court by the petitioners, it appears,
approximately 20.5 lakh claims were rejected in the above-mentioned 44 lakh claims. Obviously, a claim
in the context of the above-mentioned Act is based on an assertion that a claimant has been in
possession of a certain parcel of land located in the forest areas. If the claim is found to be not tenable
by the competent authority, the result would be that the claimant is not entitled for the grant of any
patta or any other right under the Act but such a claimant is also either required to be evicted from that
parcel of land or some other action is to be taken in accordance with law.”

• Nevertheless, encroachers are not being evicted even after their claims have been rejected.
• What is more, most lands allotted are unfit for agriculture, condemning claimants to work as
landless labour on the properties of richer landholders.
• The allotment of such lands means that the tribal families have to survive on sustenance
farming without access to water, sanitation, health, education and medical facilities.
• Even today, the cutting of trees continues. None of the cutting was or is legal. The tribals
never had and still do not have title to the land.

The elephant herds have vanished, but every once in a while, they return to raid crops. As many as 30
were poisoned in Sonitpur by angry farmers. Neither humans nor elephants are safe any longer. The
Kameng-Sonitpur Elephant Reserve (KSER) offers refuge to elephants, in a small measure, but almost
daily, as a direct result of human interventions, reports of “wild elephant herds creating havoc in
Sonitpur,” appear in the media.

The situation is equally distressful in states such as Maharashtra, Jharkhand, Chhattisgarh, Madhya
Pradesh, Bihar, Orissa and Andhra Pradesh. Here, too, in order to grow food on forestlands, locals were
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encouraged to deforest areas with political patronage. The objective is achieved by burning trees and
ground vegetation, then planting food crops on the ash-fertilised remains. But, because the vast bulk of
the forest nutrients are quickly washed or blown away, such farms are incapable of offering anything
more than borderline livelihoods to farmers. This is precisely what gave rise to “marginal farming”,
coined by economists to describe millions condemned to penury. Far from creating self-sufficiency, this
has ended up eroding India’s food security, in part because downstream farms find themselves deprived
of the flood, drought-control and nutrient-spread gifted by upstream forests.

As I write, the discussion seems Daliesque.

The FRA provides a 90-day limit for filing claims. The Act was passed in 2005 (Rules in 2007). Can we
seriously be discussing new claims even today? Surely we should collectively agree that no limits be
allowed or extended under any circumstances?

Remember, that our protected area network barely covers three per cent of our land and acts as an
insurance against climate change, floods and droughts.

Under no circumstances should such lands be open to the claim of any private rights whatsoever. In
fact, it is vital that the long-pending rules to define Critical Wildlife Habitats be framed without
further delay and that those deemed to be encroachers vacate such biodiverse lands.

Social activists and wildlife groups must both accept that no rights can be championed, nor wildlife
saved, if the forests at the centre of the tussle vanish. Social activists talk of “harmonious co-existence”.
But I ask — can 6,000 people live in harmony in 600 sq km with 60 tigers and over 600 elephants with
the nearest market for forest produce being six km away? Given that the FRA is a reality and without
going into the merits or demerits of the legislation itself, I wonder whether it might be possible for those
living next to forests to form cooperatives with the singular purpose of restoring eco-systems back to
health on their own lands. This may be easier said than done, but it is possible if a basket of benefits can
be channelled to communities that opt for eco-system farming, instead of bajra, wheat or paddy. If this
is achieved, the answer to the rhetorical question “Can the Forest Rights and Wildlife (Protection) Acts
be friends?” might well be “Yes!”. But I am not holding my breath.

The writer is editor, ‘Sanctuary’ magazine

New attempts at dilution

• First, it has brought a series of legislation that undermine the rights and protections given to
tribals in the FRA, including the condition of “free informed consent” from gram sabhas for any
government plans to remove tribals from the forests and for the resettlement or rehabilitation
package. The laws were pushed through by the Modi government without any consultation
with tribal communities. They include the amendments to the Mines and Minerals
(Development and Regulation) Act, the Compensatory Afforestation Fund Act and a host of
amendments to the Rules to the FRA which undermine the FRA. The requirement of public
hearings and gram sabha consent has been done away with for mid-sized coal mines. BJP State
governments and partners in the National Democratic Alliance such as the Telugu Desam Party
government in Andhra Pradesh have introduced government orders to subvert the FRA. In
Telangana, in total violation of the FRA, the government has illegalised traditional methods of
forest land cultivation. The Jharkhand government has brought amendments to the
Chotanagpur and also the Santhal Pargana Tenancy Acts which eliminate rights of gram
sabhas and permit tribal land to be taken over by corporates, real estate players, private
educational and medical institutions in the name of development, without tribal consent. In
Maharashtra the government has issued a notification of “Village Rules” which gives all rights of
forest management to government-promoted committees as opposed to the gram sabha. This is
the law-based offensive.

• Second, there is the policy-based war. The Modi government has declared its commitment to
ensuring “ease of business”, which translates into clearing all private sector-sponsored projects
in tribal-inhabited forest areas. The National Board for Wildlife, with the Prime Minister as
Chairperson, was reconstituted, slashing the number of independent experts from 15 members
to three, packing it with subservient officials. In the first three months of assuming office, the
Modi government cleared 33 out of 41 proposals diverting over 7,000 hectares of forest land.
Of this the major share was for Gujarat companies. In two years the clearances for projects
have included “diversion” — or more appropriately land grab — to the extent of 1.34 lakh
hectares of forest land. In many areas this will lead to massive displacement of tribal
communities. In the multipurpose Polavaram project in Andhra Pradesh alone, now given a
national status by the Central government, 2 lakh hectares of forest land will be submerged
affecting around 85,000 families, more than half tribals, including 100 habitations of particularly
vulnerable tribal communities. In almost all these projects, the affected tribal families have not
yet received their pattas (land ownership documents), one of the conditions set by the FRA. This
wilful disregard and blatant violation of the legal protections given to tribals has become the
cornerstone of the policy.

• Third, there is the deliberate freeze of the actual implementation of the FRA. Neither
individual pattas nor pattas for community forest resources are being given. During the UPA-II
government the implementation of the Act was virtually hijacked by the Ministry of
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Environment and Forests and rejections of claims increased. However, now the situation has
worsened, and the rate of rejections has gone up during the Modi regime. According to one
analysis, between May 2015 and April 2016, eight out of every 10 claims were rejected. This is
the ‘Gujarat model’ in operation. The State has one of the worst records in implementation of
the FRA. Although 98 per cent of the approximately 1.9 lakh tribal claims had been approved by
the gram sabhas, the bureaucrats in the sub-divisional committee and above brought the
acceptance down to just 38 per cent. This is in sharp contrast to a Left-led State such as Tripura,
where 98 per cent of tribal claims have been recorded and titles given.

Some other issues in a compact form I can think of are:

• Clash between forest dwellers and guards. Case of killing of people in Andhra. Need to
demarcate boundaries well.
• Rights nor recognised. The process is delayed. 8 out of 10 rights don't get recognised. Very few
pattas have been issued even though gram Sabha has passed it.
• The emphasis is on individual rights. Thus people are more keen to secure these instead of
community rights so as to benefit commercially.
• The consent from gram Sabha is not pre informed. The government and corporates try to
mislead people when getting consent.
• It gets diluted in other forms when it conflicts with other acts. Such as mines and minerals
development and regulation act has a provision for granting land without consent. As it
happens, many a times mineral rich land and forest land overlap.
• There's a perceived notion that this act is against development and against the policy of easy of
doing business. The government is keen on diluting it.

Critical Wildlife Habitats

The Critical Wildlife Habitats have been envisaged in Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006. This act defines the Critical Wildlife Habitats
(CWH) as the “areas of national parks and sanctuaries where it has been specifically and clearly
established, case by case, on the basis of scientific and objective criteria, that such areas are required to
be kept as inviolate for the purposes of wildlife conservation…”.

The above definition makes it very clear that the Critical Wildlife Habitats are absolutely free of
human presence. But the same act duly recognizes the traditional rights of the Forest dwellers.

How CWHs are designated?

The power to notify the rules to designate a CWH rests with Ministry of Environment and Forests. The
State Government are needed to initiate the process for notification of a critical wildlife habitat by
submitting an application on a case by case basis, to the Ministry of Environment and Forests, which is
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the nodal agency under the said Act. Critical Wildlife Habitats are thus, declared by Central Government
ONLY.

CWH and Rights of Forest Dwellers

The rights of the forest dwellers is a key issue related to the Critical Wildlife Habitats, mainly because
they are envisaged as totally inviolate areas. Before a critical wildlife area is notified, not only do the
rights of the tribals and forest dwellers have to be settled, but also scientific evidence has to be
provided to establish that people’s presence would adversely impact the wildlife in area. We note
here that consent of affected Gram Sabha is also required for creating these inviolate areas or critical
wildlife habitats. The free informed consent of the Gram Sabha must be given before any relocation of
the forest dwellers is carried out.
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