Mainstream, VOL LV No 21 New Delhi May 13, 2017
Forest Conservation, Tribals and a Decade of the Forest Rights Act in India
Sunday 14 May 2017
by Madhusudan Bandi
India has a repertoire of ‘environmental laws’, all of which are important. One among them is ‘The Forest (Conservation) Act (FCA) of 1980’. The original legislation was enacted in the colonial era in 1927 with an objective of controlling the transit of forest produce and levying duty on it besides rules to penalise the violators. It covered the four categories of forest, namely, reserved forests, protected forests, village forests and private forests. Promulgation of the FCA, 1980 was necessitated mainly to arrest the fast depleting condition of the forests in the country. A significant feature of this Act is that it is mandatory for the State governments to seek permission from the Union Government for using forestland for other purposes. This is because the ‘subject’ of forestry is now placed under the ‘concurrent list’ in the Constituion by removing it from the exclusive ‘State list’ after this Act. (GoI, 1980)
Though in 1977, direct reference to forest protection and improvement was made in the Constitution through the 42nd Constitutional Amendment Act when Article 48A was inserted into it, the scholars of forest policies and Acts in India would be aware that the framers of the Constitution were already committed to environmental protection and its improvement since its inception in 1950. There is also a mention in the Constitution about the funda-mental duty of every citizen ‘to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures’. [Article 51A (G), 1990]
In the context of forests, just as conservation is important, the rights of the tribals residing in and on the fringes of it are also equally vital for living a quality and dignified life. It is an established fact that tribals or indigenous people inhabited, cultivated, grazed their cattle and made a living out of forest resources freely without any restrictions until the advent of the colonial rule (Guha, 1983), because, by the start of the 19th century, vast tracts of forestland were already under the control of the British regime. (Gadgil and Guha, 1992) Thereafter it was all about hardships, exploitation and struggle for the tribals as they were declared illegal or encroachers in their own lands. (Bijoy, 2008) The resentment and rebellion by tribals occurred across the country at different times; these were put down by the colonial authorities. (Sinha, 2007)
However, respite appeared to be coming their way even when the British were reigning the country. The Madras Presidency Act of 1882 showed concern to settle the rights of the people living in forests. The 1894 National Forest Policy (NFP) considered regulating the forest users’ rights and privileges in the forest vicinity. (Springate and Blaike, 2007) Interestingly, The Forest Act of 1927 had provision for assigning any village with the community rights, and such habitations were called ‘village-forests’ as they were ‘provided with timber or other forest-produce or pasture, and their duties for the protection and improvement of such forest’. (GoI, 1951) Similarly, in the post-independence period too, the sympathetic shift towards issues concerning tribals was observed when the 1988 forest policy incorporated the clauses to protect the forest-dwellers’ rights (GoI, 1988) which ulti-mately resulted in the declaration by the Government of India (1990) of the September 18 guidelines to regularise encroachments and settling disputes on forest lands. (Prasad, 2003) In the midst of changing policies, legislations and Acts, as described above, the sufferings of the tribals continued perhaps with a slight variation in the degree and form during this period. (GoI, 1992) The Human Development Index (HDI) (GoI, 2011) further confirms this reality with the data.
A ray of hope dawned on the lives of the tribals only when the then government at the Centre made a radical departure from what was known as an approach of ‘forest bureaucracy’ and enacted The Scheduled Tribes and Other Traditional Forest Dwellers (Recog-nition of Forest Rights) Act, 2006. Thus, came into exis-tence the Forests Rights Act (FRA) (as it is popularly known) and became a reality amid serious debates and resentment from the conservationists, environmentalists and other stakeholders including the Ministry of Environ-ment and Forests. (Bhullar, 2008) Through this Act, the forest-dependent communities gained eligibility to claim community rights and individual rights on the forestlands under their occupation for cultivation. Besides, the claims over dwelling rights and total ownership rights on Non-Timber Forest Produce (NTFP)/ Minor Forest Produce (MFP). These rights are applicable in protected areas (sanctuaries and national parks) too.(The Gazette of India Extraordinary, 2007)
Currently, the FRA is in implementation and it has completed a decade of its existance since its legislation in December 2006. Yet, the success in meting out justice to tribals appears to be distant dream. In fact, a number of reports, academic studies and government statistics on the disposal of claims made by the tribals and other forest dwellers, and the proportion of rejections suggest a discouraging scenario. (Bandi, 2014; CSD, 2010; GoI, 2010; GoI, 2015; Kothari, 2011; Kothari and Meena, 2010; Saxena, 2010; Sharma, 2010; Writ Petition, 2011) In principle, the Ministry of Tribal Affairs (MoTA) is responsible and accountable for overseeing the implementation of the FRA, yet, the Forest Department (FD) receives blame for creating the hurdles in a major way in implementing the Act by the votaries of tribal rights. There is some truth to the allegation since the FD remains a deciding factor as the jurisdiction of the land claimed by the tribals falls under its authority, and by virtue of this, their role becomes crucial. Besides, the FCA, 1980 still in vogue, and they get a shield to defend their actions. In short, the FD wants to implement the FRA in accordance with the spirit of the Forest Conservation Act.
The FD’s indifference towards the FRA is not surprising for the followers of tribal issues and forest governance since the department always viewed this Act with suspicion and was against many of the clauses on which the entire legislation is based. The major issues that bother the FD about the FRA are: cutoff date, amount of maximum claimable land, extension of eligibility of ‘other forest dwellers’ alongside tribals, inclusion of lands for claim in wild life sanctuaries and national parks. (Bandi, 2016)
According to the arguments of those opposing the FRA, regularisation of ‘encroachments’ or ‘occupations’ in the forest land after October 25, 1980 technically becomes a contradiction of Section 2 of the FCA, 1980 and amounts to contempt of the orders of the Supreme Court of India because the clause is not repealed yet by Parliament. (Sunder and Parmeshwarappa, 2014) This disagreement appears to hold no ground because in the first clause of chapter 3; 4. (1) of the FRA. It is clarified that rights under the Act supersedes all existing laws. Here, Springate et al. (2009) provides a rebuttal to the FRA’s critics to understand its meaning in the liberal sense and see the Act as a vehicle of restoring the ‘pre-existing rights’ and not as state appropriation.
However, there appears to be an element of merit in the FD’s argument that conferring individual ownership rights on forestland under the FRA amounting to a ‘reward’ for the ‘illegal encroachment’ and a ‘travesty of the doctrine of law’ and ‘mockery of principles of equality before law and equanimity in administration of law enshrined in the Constitution’. Besides, apprehensions of sending wrong signals to a law-abiding citizen who may have refrained from encroaching the forestland out of fear or respect for law. Entertaining the applications without any deadline is also not going down well with the FD and environmentalists. They believe that this would only encourage the clearing of the forest for fresh encroachments. Further, a number of ‘executive’ interpretations that the MoTA has been giving in response to the clarifications sought with regard to the clauses in the FRA is seriously objected to by the FD because, according to their contestation, only Parliament is the competent authority to amend the clause and no Ministry has the authority to do so. (Sunder and Parmesh-warappa, 2014)
In the midst of allegations and counter allegations, it perplexes one to understand that if the FD is so concerned about biodiversity and conservation in the context of the FRA, how come new encroachments have been taking place everyday even after October 25, 1980 (the date they appear to be in agreement with to recognise the tribal’s occupation on the land in the forests). Between 1950 and 1980 when the forest was in the State list, 43 lakh ha of forestland (more than half for agriculture) was usurped by encroachers illegally or legally diverted for non-forestry purposes. (GoI, 1990) Even during the decades after 1980, the diversion of forestland for non-forest purposes under the guise of developmental projects has not ceased. However, the onus lies on the FD to express their constraints (threats/ pressures) if there are any on an appropriate forum and convince the policy-makers to plug the loopholes in the system with stringent legislations in the overall interest of the environment.
In lieu of Conclusion
Diversion of forests for other purposes often ignoring the environmental aspect has been the hallmark of the political parties in States and at the Centre alike in India. Setting up the most recent high level committee to review Acts administered by the Ministry of Environment, Forest and Climate Change (MoEF&CC) to recommend altering the current procedure for granting forest clearances does not appear to be in sync with the tenets of biodiversity conser-vation. Permitting activity where forest canopy is less than 70 per cent in the ‘protected areas’ (Ghose, 2014) is not a convincing justification in the name of development.
Recent reports of the Maharashtra Govern-ment passing certain regulations in 2014 allegedly overriding the FRA tenets to gain control over the forests in the State (Shrivastava, 2014) and the passing of an order by the Chhattisgarh Government cancelling the community land rights of the tribals given under the FRA in the Ghatbarra village of Surguja district to facilitate coal mining (Sethi, 2016), only mark the violation of the FRA. In the latter case, it also amounts to bypassing the National Green Tribunal’s (NGT) order that had earlier recommended for its termination citing the adverse impact of ‘mining on biodiversity in the region, including presence of protected species such as the elephant’. For reasons best known to it, the Ministry has not taken seriously to act on the objections raised by the NGT. Perhaps, this resulted in the Supreme Court removing the stay on the operation.
In this, one could only surmise that the approach towards environment in general and forest in particular and the rights of the people living in it appears to be too casual for those holding power in India. Through the FRA, certain political parties and non-government organisations, in order to take credit for getting the Act legislated in favour of tribals ended up doing more harm to them. It is because the way the whole legislation was handled in Parliament and outside it has ended up in projecting the tribals as usurpers of forestland when a majority of them were only claiming their rights on the lands on which they were cultivating for decades/generations. Actions by the vested interests advising the decision-makers resulted in taking the issue to an extreme level which the ‘historically’ affected tribals themselves may not have anticipated (at least with regard to the cutoff date). This is evident from the opinion expressed by a local tribal in the village of Barumal (Taluka: Dharampur; District: Valsad) in Gujarat seriously contesting with this researcher and asked when the government would settle the matter of distributing forest-land and close the issue once and for all. In fact, there was always a chunk of tribal members found in each of the villages visited by the author in Chhattisgarh and Gujarat during the study and they were found to be asking similar type of questions. They feared that with this rate of distribution, their forest would soon disappear as the number of people in the village multiplies and everybody keeps hoping that the government may later come up again with this kind of programmes. It is apt to mention here that during the making of the FRA, the National Forest Commission was already constituted under B.N. Kirpal, a former Chief Justice of India, and the commission was on its task. Yet the then government did not consider it fit to seek his opinion and advice on the possible implications of legislating the FRA. (Sunder and Parmeshwarappa, 2014)
In the overall context of forest governance, tribal concerns and the FRA, it could be con-cluded that the loopholes necessarily lie in our political and legal system and they are exploited by all the stakeholdrs to their advantage. This ‘only’ caused some amount of damage to the forest (according to FD in the context of the FRA) and also ‘delayed’ rights to many of the genuine tribals. Besides, it is high time to shift the paradigm from presenting land ownership as the only panacea for the problems of tribals, particularly when the farmers elsewhere in the country are looking beyond ‘agriculture’ as the source of their living. Ignoring the need to explore the tribal’s aspirations and not be able to reach out and execute the just benefits that are available to the mainstream population which could improve their lot on the HDI scale are certainly shortcomings in the saga of making laws around forests involving tribals where they are an important stakeholder continuously deprived of their rights.
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Dr Madhusudan Bandi is an Assistant Professor, Gujarat Institute of Development Research, Ahmedabad. He can be contacted at e-mail: madhusudan_bandi[at]gidr.ac.in