SOCIOLOGY CIA 2

Forest Rights Act, 2006: A

Critical Analysis
Sreelakshmi S.

II P.S.English - 1214256






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INDEX
1. Introduction [pg. 2]
History
Indian Forest Act, 1927
Background
Situation of tribal and forest-dwelling communities before the introduction of
the FRA; need for its implementation
2. The Forest Rights Act, 2006 Provisions and Procedures [pg. 4]
Purpose of the Act
What it aims at providing
Rights provisions by the Act
Land rights; Use rights; Right to Protect and Conserve
Procedure for Implementation
Three-step procedure
3. Significance of the Forest Rights Act [pg. 6]
Preamble
Historical context and present-day relevance
4. Implementation [pg. 9]
Current state of implementation
Challenges encountered in the implementation process
Illustrated through examples of state case studies
5. Conclusion [pg. 11]
Critical analysis of the FRA


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Introduction
The Forest Rights Act as passed and implemented in the year 2006 was one that sought to
remedy the many years of historical injustice done to forest dwellers, ever since the partition
and independence of India as a nation. Under the cover of the Indian Forest Act as passed in
1927 after British rule, what to government continued to carry out was an illegal and
unconstitutional land acquisition programme, as was stated by the Tiger Task Force of the
Government of India. What were termed as forests under the Indian Forest Act often had
nothing to do with actual forests areas were merely declared as government forests as and
when it pleased those in power, and such declarations were carried out with no records of
who lived in these forests, what land was being used and what uses the forest constituted for
them. Large areas of government-declared forest land in Madhya Pradesh and Orissa have
never been surveyed; in fact, 60% of Indias national parks are yet to complete the processes
of enquiry and settlement of rights for the inhabitants in these areas.
Owing to such a situation caused by the loopholes present in the Indian Forest Act, millions
of forest dwellers and communities were subjected to harassment of all kinds of manner on
the pretext of being encroachers in their own homes. Ranging across torture, bonded labour,
extortion of money and sexual assault, eviction drives as instituted by the government have
seen these people suffer from consequences of this kind, including families being driven into
destitution and starvation owing to the loss of their homes and livelihoods. Forest-dwelling
communities established in these lands for multitudinous generations, found themselves
evicted from the only homes that they have known and the only means of subsistence that
they were familiar with, as villages were razed to the ground in the name of claiming these
areas as government proclaimed forests. The situation had reached a peak point where the
constitutionally declared liberal and secular democracy of India had begun to criminalize
entire communities of forest-dwelling tribals in its governments bid for more land and
resources.
The major issue lay with the provisions that were built into the Indian Forest Act when it was
originally passed in 1927. Owing to the fact that India was, at the time, under British rule, the
Act did not include any sort of terms or provisions in relation to the conservation of Indian
forests. The main objective of the Act was to serve the British needs for timber, and this was
in fact the sole purpose for which it was created. It overrode customary rights and forest
management systems, and declared all forests as state property with the state holding all
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rights to exploit the timber. It further stated that at the time that an area became declared
forest land, a single official (i.e. the Forest Settlement Officer) was to enquire into and settle
any land and forest rights that the forest-dwellers in that area may have. Unsurprisingly, the
tradition emerged that these powerful officials either entirely overlooked the rights of forest-
dwelling communities, or only granted recognition to a few, powerful communities, leaving
the rest to fend for themselves.
Along with the communities of forest-dwellers, conservation and ecosystems, too, have taken
a big hit owing to the provisions of the Indian Forest Act. The destruction of a forest in India
requires nothing more than a bribe to a forest official, or an application to a committee in
Delhi. Furthermore, it remains illegal for a commoner to plant a tree in a reserved forest,
while it is entirely legal for an entire forest to be razed to the ground owing that it has Central
Government permission. With a complete lack of provisions for either human rights or
conservation efforts in the Indian Forest Act, it has led to not only large losses of habitat and
greenery across the nations, but also to the debilitation of pre-existing community
management and regulation systems of these forest areas. People are forced to choose
between completely abandoning their forest homes, leading to a huge loss of traditional
cultures and livelihoods, or living as criminals within and near it. Instances of poaching, for
example, are not uncommon among ousted forest-dwelling communities who have been
forced to give up their traditional, sustainable livelihoods, and look towards larger impact
methods for mere sustenance.
Under such a series of circumstances, it became absolutely necessary to revise or implement
a set of laws that extended protection both to the natural forest environments of the country,
as well as the large number of communities dwelling within these areas and depending on
them for subsistence. In the best interests of both the plant and animal life that was in a
constant state of degradation owing to the unscrupulous methods put in practice by the Act,
as well as the preservation of traditional cultures and livelihoods that were being lost owing
to the large-scale eviction of tribal communities and forest-dwellers in the name of
reclamation of state forest lands, serious changes needed to be made to the legislations
surrounding forest lands and treatment by the government. And thus, amidst a whole lot of
controversial statements and oppositional claims, the Forest Rights Act of 2006 was passed in
order to mitigate and partially correct the injustice shown to land and life over the decades of
maltreatment handed out by the Indian government.
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The Forest Rights Act (2006)
Provisions and Procedures
The Forest Rights Act of 2006 is designed to grant the following things:
Legal recognition to the rights of traditional forest-dwelling communities in order to
partially correct the injustice caused by forest laws over the decades;
Creating a beginning towards giving communities, as well as the public, a voice in
forest and wildlife conservation.
Under the Act, two stages of eligibility are to be passed for it to be applicable to an individual
or community, which include (i) primary residence to be in forests or on forest lands, and (ii)
dependence on forests or forest lands for livelihood means. Furthermore, sufficient proof
needs to be brought forth to show that these two conditions have been true for the past 75
years, qualifying the individual or community as an Other Traditional Forest Dweller. A
second mode of proving eligibility would be the application of the two conditions in the case
Scheduled Tribes residing in the area that has been scheduled for them, i.e. sufficient proof
needs to be brought forth that the individual is a member of a Scheduled Tribe, residing in the
scheduled area. In such a case, the individual (or community) is qualified to be a Forest
Dwelling Scheduled Tribe.
Once a member of a community or a community in itself has been proven eligible under the
former conditions as listed under the Act, it provides to them the following rights, which can
be classified into three: Land, Use, and the Right to Protect and Conserve.
Under the Land Rights, any land that has not been in cultivation by a member prior to
December 13, 2005, and is not in cultivation at the time, is not entitled to any rights. Those
individuals who happen to be cultivating land but are not in possession of a legal document as
proof, are eligible to a claim of up to 4 hectares of the same land, provided that the land is
being cultivated by themselves, and for a livelihood. Those in possession of a government
lease for the land but which has been illegally seized by the Forest Department or is a subject
of dispute between the Forest and Revenue Departments, are entitled to claim these lands.
Every family does not, however, receive an allocation of 4 hectares of land. If a certain
individual or family happens to be cultivating half a hectare prior to and on December 13,
2005, then that individual or family receives the same half hectare of land. If an individual or
family happens to be carrying out no cultivation at all prior to and on December 13, 2005,
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then that individual or family receives no land share. However, if an individual or family
happens to be cultivating more than 4 hectares of land prior to and on December 13, 2005,
the individual or family still receives only a maximum of 4 hectares of land. Furthermore,
any land allocated by the government under the provisions of the Forest Rights Act cannot be
sold or transferred, except through inheritance.
The Use Rights provides the rights for eligible individuals to use and/or collect certain NTFP
(non-timber forest produce) and other forest resources for means of subsistence and
livelihood, which include (i) minor forest produce including herbs, medicinal plants etc. that
have been traditionally collected by communities (the specifics of which are outlined in
section 3 (1) (c) of the Act); (ii) grazing lands and water bodies; and (iii) traditional areas of
use by nomadic or pastoralist communities, i.e. communities that move with their herds as
opposed to practicing settled agriculture.
Although the forest has always belonged to all of the citizens of the country, until the passing
of the Forest Rights Act of 2006, there had existed no provision to equip any entity excepting
the Forest Department with the rights to protect it. This effectually meant that in the case of a
decision taken by the Forest Department to destroy forest lands, or to hand it over to a party
that would, the obstruction of this action by a third party would be viewed as a criminal
offence. For the first time, through the Right to Protect and Conserve, the Act empowers
the forest-dwelling communities with the right to protect and manage the forest. Section 3(1)
of the Act provides a right to and power to conserve community forest resources, while
Section 5 gives the community a general power to protect wildlife, forests etc. This is an
extremely vital provision of the Act for the forest-dwelling communities, in order to protect
their forests and wildlife from threats ensued by forest mafias, industries and land-grabbers, a
large number of whom happen to operate hand-in-glove with the Forest Department through
the means of bribery in order to further personal gain.
The Act has further made provisions to spell out a procedure for the recognition of rights of
interested parties. A transparent three-step procedure has been laid out to decide to whom the
rights shall be awarded. To begin with, the gram sabha is to make a recommendation as to
who has been cultivating the forest land, for how long cultivation has been in place, which
minor forest produce has been in collection, and so on. The gram sabha is the body chosen to
play this role owing to its fully democratic and transparent nature. Being a public body, the
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participation of all people involved is guaranteed, leading to a fair and unbiased
recommendation.
The gram sabhas recommendation then goes through two stages of screening committees, at
the taluka and district levels. The district level committee is the one that makes the final
decision. Each of the Committees has six members, which include three government officials
and three elected persons. At both the taluka and district level, if any individual or party feels
that a claim is false, an appeal can be put through to the Committees. If the case can be
proven, then the right is denied to the respective individual or party.
Significance of the Forest Rights Act (2006)
An Act to recognize and vest the forest rights and occupation in the forest land in
the forest dwelling Scheduled Tribes and other traditional forest dwellers And
whereas 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 historic injustice to the forest dwelling
Scheduled Tribes and other traditional forest dwellers
Stated in the preamble of the Forest Rights Act of 2006, it becomes clear that the Act aims at
mitigating and compensating the forest-dwelling tribes and communities for the injustice
inflicted upon them by the forest laws that existed prior to the passing of this Act. As
reviewed in the earlier segment, the Act proposes to do so by provisioning forest-dwellers
and tribals with individual property rights to the forest lands that they occupy for cultivation
and dwellings, as well as well as community rights on forest resources including the right to
manage them, and total ownership rights on NTFPs (Non-Timber Forest Produce). An
extremely significant feature of the Forest Rights Act and its provision, is its extension of the
rights provided to the forest-dwellers in Protected Areas as well, i.e. sanctuaries and national
parks.
The significance of the passing and implementation of the Forest Rights Act can be derived
by looking into the history of forest lands and tribal communities that have occupied such
lands in India. Since time immemorial, tribal communities in India have been existing in and
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depending on forest lands for life and subsistence. Although forest lands have always been
owned by royalty and the ruling families in the pre-British times, the local people have
always had the rights to utilize the same for habitation, cultivation, grazing, and other such
livelihood purposes. Owing to the large population of forest-dwelling communities, many of
them even had in place a set of evolved norms and rules directed for the protection,
conservation and sustainable use of the forest and its resources.
The colonization of India by the British, however, saw an over-turning of this long-standing
tradition. The growing demand of timber led to the British ignoring the age-old traditional
rights and liberties in place of the common people, and took over ownership of vast areas of
forest land for their own timber needs. These lands were declared reserved forests, and people
were barred from entering, cultivating, inhabiting, or using them for any sort of subsistence
purpose at all. This legacy was passed on by the British to Independent India courtesy the
Indian Forest Act passed in 1927, with continuing adverse consequences for both the natural
environment as well as the people depending upon it.
As already explored, this led to a series of wide-reaching consequences. Not only were the
traditional forest-dwellers deprived of any property rights to the lands that their families had
inhabited for generations, effectively losing their ancestral homes, but they were also denied
any sort of rights to the forest produce as well, ensuring that they lost their traditional
livelihoods as well. This led to a large-scale spread of illegal activity such as poaching on one
hand which led to a steady depletion of the forests resources, and widespread poverty and
destitution on the other, orchestrated by the eviction of millions of families from the only
homes that they had known. The people who could have been the ideal protectors of the
forest had been turned into its biggest enemies by the unjust wielding of the forest laws in the
country.
The last straw appeared in the form of the 2003 directive issued by the Ministry of
Environment and Forests (MoEF) to all state governments, ordering them to evict the
millions of such tribal and forest-dwelling families from their forest lands. Nation-wide
campaigns sprung up to overthrow the monopoly of forest lands by the government. Various
organizations from multiple states joined hands in agitating for legislations to restore and
protect the rights of tribal communities and forest-dwellers who had been wronged for almost
a century owing to the punitive forest laws that had been put in place by the British
government.
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Controversies arose regarding whether individual property rights out to be awarded to the
forest-dwellers or whether such rights should reside with the government, as well as whether
the right to cultivation and forest produce ought to be reserved merely for self-use or should
also be allowed for sale of the produce. Eventually, the Act did award individual property
rights for habitation and cultivation, though with conditions attached. While many viewed
this conditional ownership as being redundant, the awarding of any property rights at all
where none existed before proved in itself a huge leap forward for the government. Where a
situation once existed denying traditional inhabitants access to their homes and livelihoods,
rights to such land was not only being recognized, but was actually being implemented in the
form of awarding lands to such individuals and families both for the use of habitation as well
as cultivation. The recognition of rights toward the NTFP for subsistence for the tribal
communities was also a large step in the endeavour made to right the wrongs committed upon
these communities by the government.
Another major controversy that arose in terms of the passing of this Act was the point raised
that these tribal communities and forest-dwellers were encroachers upon the land, and in fact
held no claim for rights at all. The recognition of the creation of such a position for the forest-
dwellers as the responsibility of the monopoly over forest lands by the government was
another major step towards realizing the problem and addressing it with a satisfactory
solution.
A third significant issue that was addressed in the process of passing this Act was the
protection and conservation of the forest lands. A myth that seemed to circulate at the time
was the government would indiscriminately give away forest lands to tribal communities,
resulting in their exploitation and destruction of natural resources. This claim, however, was
also falsified by the exposition of the fact that the ruin of the forests thus far had in fact been
caused due to the centralized management of the forests that had been carried out by the
government. It was suggested that a handful of forest department officials with no
incentivized motivation to protect the forest lands under their purview would in fact be liable
to cause more damage to the area than the communities that resided in them and depended on
them for survival. The local people with traditional know-how of the forest and its resources
had, in fact, direct incentives, coupled with a storehouse of knowledge, that would motivate
them into being the best possible keepers of the forest. The recognition of this particular fact
is what led to one of the most significant provisions of the Act the placing of power to
protect and conserve the forest into the hands of the local, forest-dwelling communities.
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Never before has such control been awarded to the common men, and such a step could lead
towards not merely a better care of the forest lands, but also towards increased welfare of the
forest dwellers, owing to the democratic freedom and responsibility placed upon them in
context of their habitation and livelihood needs.
Implementation of the FRA
While theoretically and legally the Forest Rights Act seemed to provide an ideal solution to
the mitigation of damage done by the previous forest laws, as well as towards the recognition
of the rights of the forest-dwellers and the conservation and preservation of forest lands, it
has faced a series of problems in its implementation. Since its inception and legalization, the
efforts towards implementation of the Forest Rights Act has largely focused in recognizing
individual rights, while the promotion of community claims to the same resources has been
left fairly untouched.
This leads to logistical problems of large tracts of land remaining contraband to communities
that depended upon it for a living. For instance, a community of 20 households inhabiting and
depending upon an area of 400 hectares of land, does not hold claim to the entirety of this
area. The focus on individual rights implies that each household would receive a maximum of
perhaps 2 hectares of this land, leaving 360 of the original 400 hectares unclaimed and out-
of-bounds for the community.
The FRA has, in fact, created provisions for such situations, by allowing for the community
to claim the entirety of the land under titles such as right to traditional knowledge, ownership
on minor forest produces, conversion and settlement of forest habitation to revenue village
and so on (listed under Chapter 2, Section 3-1-b to i of the act). However, owing to the focus
on awarding individual rights, these claims often get overlooked when the actual
implementation is in process. Reports claim disturbing trends of officers turning down the
plea for community claims on trivial grounds, leading large areas of land to be diverted for
use that does not benefit the local communities in any way.
For example, in some areas of Madhya Pradesh, such as the Betul district, the government
officials marked the community claims forms as Not Applicable. In August 2009, villages
in areas such as Burhanpur, Khandwa, Khargone began a process of demarcating boundaries
for themselves owing to the Forest Departments illegal attempts to take over the
management of their community forests. They further issued notices to the government,
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informing them of the same. However, while demarcating their community resource
boundaries, it was discovered by the villagers that the forest department had encroached up to
1.5 kilometres inside their village boundaries through their process of negating community
claims. Although officials later inspected and declared this to be an illegal activity on the part
of the government and further promised to distribute claim forms for community rights and
support the villagers claims to the same, these actions have still not been carried out.
Reviews of the FRA implementation further revealed that most of the key features of this
legislation have been facing obstacles owing to a combination of apathy and sabotage as
displayed by parties at various levels. The current situation projects a picture where the rights
of majority of the tribal communities and forest-dwellers are being denied, defeating the very
purpose of the legislation. Instead of undoing the historical injustice done unto these
communities, the wrongful implementation of the Act is further worsening the situation,
making them even more vulnerable to eviction, as well as denial of customary access of the
forests. Such shortcomings in relation to the implementation of the Act have been posed as
the responsibility of not just bureaucratic authorities, but the Central and State governments
as well, who seem to have actively pursued policies that are in direct violation of the spirit of
the Act.
In a large number of the states, the implementation has hardly even gone through. To begin
with, all of the states have categorically failed to respect the Acts provision regarding the
role of the gram sabha. In some cases, the gram sabha has been constituted at the wrong
level, consequently rendering it dysfunctional and ineffective. In other situation, the gram
sabhas have been bypassed by officials, and Joint Forest Management (JFM) committees and
Forest Department officials have been empowered, in direct violation of the provisions of the
law.
In the state of Uttarakhand, for example, it was reported that the Chief Minister at the time
stated that there was no need for such an act to be implemented in the state as all the forest
rights had been already settled, a statement which was categorically untrue. Under the banner
of such protest, there continued to be cases of evictions and forcible relocations of various
communities from different parts of the state, including the Van Gujjars from the Rajaji
National Park.
Furthermore, there has been a wide-spread issue regarding the recognition of rights owing to
interference from the Forest Department. Such interference is conducted in various forms and
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manner: demands that claimants produce receipts prior to the Acts legal cut-off date;
demands that claimants should be on the Departments encroacher lists; undue
appropriation of authority to control decisions over claims; the imposition of the
Departments perspectives and elements on the implementation process in key
implementation posts; imposition of conditions which are not required by the law on both
claims as well as the exercise of final rights (as already demonstrated); continued eviction of
forest-dwelling communities which stands in total violation of the law; and a continued
application of contrary forest legislations, as well as efforts to subvert the Act by the passing
of new legislations that violate its provisional rights.
Further issues include the total ignorance of non-land rights that have been provided for in
the Act. The officials responsible for the implementation of the Act have treated it like a
land-distribution scheme without recognizing and furthering the true import of its provisions.
Rights such as the ones over NTFP, for example, would be left unwarranted for, owing to its
non-land rights nature. In addition, Protected Areas seem to have been completely excluded
from the implementation of this Act, which is once again in direct violation of the Acts
provisions. In many areas, afforestation and plantation movements have also been taking
place, that result in a violation of the rights of the forest-dwellers. This has in fact been owing
to directives from the Central government itself, which has continued with policies that are in
direct opposition to the spirit and letter of the Act.
The Ministry of Tribal Affairs has seemingly displayed no seriousness or commitment
towards addressing any of these issues, and had even failed to properly monitor the Act and
its implementation. Instead, it has only focused on gathering statistics regarding the number
of claims processed and lauding these efforts, which in fact is an extremely skewed
representation of the ground reality.
Conclusion
The Forest Rights Act was, undeniably, a major step taken towards the improvement of the
situation of tribal and forest-dwelling communities in the country. It has to be lauded for the
very fact that not only did the government recognize the need for a change to be brought
about, but backed such an acknowledgement with legislative action in the form of the Act.
The recognition awarded to the cultural heritage and traditional rights that belonged to the
tribal and forest-dwelling communities over the forest lands, as well as to the fact that these
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communities proved the ideal keepers of the forest, was manifested in the various rights
provided to the forest-dwelling communities in the Act, ranging from occupational to usage
rights.
Alongside the appreciation that needs to be doled out for the initiative that this Act was in the
face of the historical injustice faced by tribal and forest-dwelling communities, it is possible
to levy an equal, if not more, number of criticisms at this face-value legislation that seems to
be doing more harm than the good that it promised.
The disregard shown for a number of the provisions of the legislation the gram sabha
provisions, the appeal for individual property claims, and the community claims on forest
lands being a few to start with can in fact be seen as inflicting more damage than what had
been the case before. With misappropriation of the legislation, the union and state
governments seem to be making way for a larger number of evictions and legally sanctioned
land-grabbing. With the refusal of community rights, as discussed earlier, large tracts of land
are left unaccounted, thereby transferring itself into the hands of the state by default.
Furthermore, the refusal of individual property rights on unfounded bases (such as
requirement of proof and legal documents in addition to what is necessitated by the
legislation) as well as the lack of recognition to the use rights on NTFP and other such forest
resources, defeats the entire purpose of the legislation at the most fundamental level.
To critically conclude, the Forest Rights Act of 2006 has very definite, distinct positives and
negatives. The downfalls and challenges are obvious the implementation process is one that
needs a severe review, and this can only be achieved by a rethinking of attitudes and
procedures at every level of government involved in the process. Not only do the state and
union governments need to invest more in terms of time and efforts to plug the holes in the
implementation process, but there also needs to be a stricter policing to ensure that procedure
is followed in accordance with the legislation by the officials interacting with the tribal and
forest-dwelling communities. The spirit of the Act needs to be recognized by all parties
involved to ensure that it delivers on its promise of mitigating damage and correcting the
historical injustice meted out to the tribal folk. Ending on a hopeful note, it is possible to say
that the first step to recovery and damage control is to recognize the loopholes and leaky
areas. The passing of such legislation as the Forest Rights Act was, in itself, a huge step. To
expect its smooth functioning with immediacy was, perhaps, a little too much to ask,
especially considering the mind set and tradition that had been in place for almost a century.
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While it is definitely disheartening to recognize that the purpose behind the Act hasnt been
recognized owing to faulty implementation, the saving grace remains that such a legislation
does, nevertheless, exist. Measures do not have to be taken on a legally groundless basis, all
that needs to be done is to take a look at the provisions once again and tighten the strings. The
government needs to accept the challenges that lie ahead, and use the existing legal
framework as well as the experience from mistakes already made to devise an improved plan-
of-action for revised and effective implementation of the Forest Rights Act.


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