Topic: A fight for the forest
The Supreme Court stayed its order on the eviction of lakhs of Adivasis and other forest dwellers whose claims were rejected under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA).
More about on news:
- The court has asked State governments for a detailed report on whether due process was followed by gram sabhas and authorities under the FRA before claims were rejected.
- For millions of Adivasis and forest dwellers, the stay offers only a temporary relief. But it provides an opportunity to figure out how conservation movements can advocate both nature and social justice in India.
- The petitioners had expressed concern over reports that showed deforestation and fragmentation of land after FRA implementation began.
- There is a lack of peer-reviewed studies that quantify the extent of deforestation caused by marginalized communities in comparison to large industrial and infrastructural projects.
- It is vital that scientists and conservationists take up this task, as it is well known that the state is bestowing large companies with kindness and second chances despite severe legal violations during the planning, construction and operation stages of projects.
- The Bench, in a 19-page order, cautioned the States that if the evictions were not carried out within the stipulated time, “the matter would be viewed seriously.”
What is the problem?
- The February 13 order is based on affidavits filed by the States. The affidavits, however, do not make clear whether the due process of law was observed before the claims were rejected.
- The Centre argues that the rejection of claims is particularly high in the States hit by Left-Wing Extremism, where tribal population is high.
- The forest land claims of these tribes and forest-dwellers are mostly rejected by the States.
- Being poor and illiterate, living in remote areas, they do not know the appropriate procedure for filing claims.
- The gram sabhas, which initiate the verification of their claims, are low on awareness of how to deal with them.
- The rejection orders are not even communicated to these communities.
- In the colonial era, the British diverted abundant forest wealth of the nation to meet their economic needs.
- While procedure for settlement of rights was provided under statutes such as the Indian Forest Act, 1927, these were hardly followed.
- As a result, tribal and forest-dwelling communities, who had been living within the forests in harmony with the environment and the ecosystem, continued to live inside the forests in tenurial insecurity.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, 2005:
- The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 seeks to recognise forest rights of forest dwelling Scheduled Tribes (FDSTs) who have been occupying the land before October 25, 1980.
- An FDST nuclear family would be entitled to the land currently occupied subject to a maximum of 2.5 hectares. The land may be allocated in all forests including core areas of National Parks and Sanctuaries.
- In core areas, an FDST would be given provisional land rights for five years, within which period he would be relocated and compensated. If the relocation does not take place within five years, he gets permanent right over the land.
- The Bill outlines 12 forest rights which include the right to live in the forest, to self-cultivate, and to use minor forest produce. Activities such as hunting and trapping are prohibited.
- The Gram Sabha is empowered to initiate the process of determining the extent of forest rights that may be given to each eligible individual or family.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006:
Millions of people live in and near India’s forest lands, but have no legal right to their homes, lands or livelihoods. A few government officials have all power over forests and forest dwellers. The result? Both forests and people die. This Act recognizes forest dwellers’ rights and makes conservation more accountable.
Why is this law necessary?
- What are called “forests” in Indian law often have nothing to do with actual forests.
- Under the Indian Forest Act, areas were often declared to be “government forests” without recording who lived in these areas, what land they were using, what uses they made of the forest and so on.82% of Madhya forest blocks and 40% of Orissa’s reserved forests were never surveyed.
- Similarly 60% of India’s national parks have till today (sometimes after 25 years, as in Sariska) not completed their process of enquiry and settlement of rights.
- As the Tiger Task Force of the Government of India put it, “in the name of conservation, what has been carried out is a completely illegal and unconstitutional land acquisition programme.”
What are conditions like in the forest areas?
- Because of this situation, millions of people are subject to harassment, evictions, etc, on the pretext of being encroachers in their own homes.
- Torture, bonded labour, extortion of money and sexual assault are all extremely common.
- In the latest national eviction drive from 2002 onwards, more than 3,00,000 families were driven into destitution and starvation.
- In Madhya Pradesh alone, more than 125 villages have been burned to the ground.
- The situation is so bad that the then Commissioner for Scheduled Castes and Scheduled Tribes, in his 29th Report, said that “The criminalisation of the entire communities in the tribal areas is the darkest blot on the liberal tradition of our country.”
Why were people’s rights not respected when these forests were declared?
- The Indian Forest Act, 1927, India’s main forest law, had nothing to do with conservation.
- It was created to serve the British need for timber.
- It sought to override customary rights and forest management systems by declaring forests state property and exploiting their timber.
- The law says that, at the time a “forest” is declared, a single official (the Forest Settlement Officer) is to enquire into and “settle” the land and forest rights people had in that area.
- These all-powerful officials unsurprisingly either did nothing or recorded only the rights of powerful communities.
- The same model was subsequently built into the Wild Life Protection Act, passed in 1972, with similar consequences.
What does the Forest Rights Act do?
The Act basically does two things:
- Grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the forest laws.
- Makes a beginning towards giving communities and the public a voice in forest and wildlife conservation.
Who is a forest dweller under this law, and who gets rights?
There are two stages to be eligible under this Act. First, everyone has to satisfy two conditions:
- Primarily residing in forests or forest lands;
- Depends on forests and forest land for a livelihood (namely “bona fide livelihood needs”)
What kind of rights do forest dwellers get under this Act?
The law recognises three types of rights:
- No one gets rights to any land that they have not been cultivating prior to December 13, 2005 (see section 4(3)) and that they are not cultivating right now.
- Those who are cultivating land but don’t have document can claim up to 4 hectares, as long as they are cultivating the land themselves for a livelihood (section 3(1) (a) and 4(6)).
- Those who have a patta or a government lease, but whose land has been illegally taken by the Forest Department or whose land is the subject of a dispute between Forest and Revenue Departments, can claim those lands (see section 3(1)(f) and (g)).
The law secondly provides for rights to use and/or collect the following:
- Minor forest produce things like tendu patta, herbs, medicinal plants etc “that has been traditionally collected (see section 3(1) (c)). This does not include timber.
- Grazing grounds and water bodies (sections 3
- Traditional areas of use by nomadic or pastoralist communities i.e. communities that move with their herds, as opposed to practicing settled agriculture.
Right to Protect and Conserve:
- Though the forest is supposed to belong to all of us, till date no one except the Forest Department had a right to protect it. If the Forest Department should decide to destroy it, or to hand it over to someone who would, stopping them was a criminal offence.
- For the first time, this law also gives the community the right to protect and manage the forest. Section 3(1) (i) provide a right and a power to conserve community forest resources, while section 5 gives the community a general power to protect wildlife, forests, etc.
- This is vital for the thousands of village communities who are protecting their forests and wildlife against threats from forest mafias, industries and land grabbers, most of whom operate in connivance with the Forest Department.
How are rights recognized?
- Section 6 of the Act provides a transparent three step procedure for deciding on who gets rights.
- First, the gram sabha (full village assembly, NOT the gram panchayat) makes a recommendation – i.e who has been cultivating land for how long, which minor forest produce is collected, etc.
- The gram sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent.
- The gram sabha’s recommendation goes through two stages of screening committees at the taluka and district levels.
- The district level committee makes the final decision (see section 6(6)).
- The Committees have six members – three government officers and three elected persons.
- At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees, and if they prove their case the right is denied (sections 6(2) and 6(4)).
- Finally, land recognised under this Act cannot be sold or transferred.
Argument about the order
- It is essentially about whether some claimants are being evicted unfairly.
- Both groups of activists — those who back the evictions and those who oppose it — have pointed to satellite pictures from before and after the December 13, 2005 cut-off date in support of their arguments.
- While tribal activists have claimed that pictures from Gujarat establish that most rejected claims were rejected unfairly, forest and wildlife activists have said satellite images prove that a large number of claims in Maharashtra and Gujarat were bogus.
Forest and wildlife activists’ opinion:
- According to the three petitioners, “Of the over 19 lakh rejected claims, over 14 lakh were rejected at the gram sabha level itself.
- Tribal activists have always insisted that the gram sabha’s word would be final. So, why are they objecting to the rejections?”
- Satellite images of “several bogus claims”, the petitioners say, “have proved that they were encroachments after the cut-off date”. Claims that the February 13 order would uproot tribals from their homes were tendentious, they argue.
- It is just that they have to give up the additional lands that they have encroached upon after the cut-off date.”
- The forest and wildlife activists argue that over 60% of forest-dwellers are landless, “which means only 40% are trying to control the entire land in contention”.
- This illegally occupied land, they say, can be given to the village community under CFRs instead of IFRs.
- “It will provide the landless with additional income opportunities from the forest produce that they have traditionally gathered.”
Reasons behind the implementation of hassles:
- Lack of Resources – The primary reason for the implementation hassle is due to lack of political commitment; lack of adequate human and financial resources with the Department of Tribal Affairs, which is the nodal agency for implementation of FRA.
- Bureaucratic Failure – Unkind and irresponsible forest bureaucracy which influences the decision at various levels, poor or non-functioning of district and sub-division level committees, which consider the claims filed by gram sabhas, which seriously affects tribal.
- Recent government decisions – Various decisions of the government affect implementation of the Act, like Environment ministry’s guideline to lease 40 per cent of the degraded forest in the country to private companies for afforestation and forced plantation on land under shifting cultivation.
- Union government in cooperation with State governments should implement the Forest Rights Act, 2006 in its right spirit.
- If gram sabhas are involved in Compensatory Afforestation Fund Act, 2016 (CAF) Plantation Programme, about 30 million hectares of forest will come under effective protection and regeneration.
- It will also help meet the climate change mitigation goal for negative emission through additional carbon sequestration.
- Besides, 65 out of the 103 districts affected by Left-wing extremism have high individual forest right (IFR) and community forest right (CFR) potentials.
- Implementing FRA in these districts will not only lead to the development of forest dwellers but also build a relationship of trust and bond between them and the government, thereby reducing land conflict, Naxalism and underdevelopment.
- Besides leveraging modern technology to map and monitor the implementation of FRA, the forest bureaucracy must also be reformed to serve as service providers to gram sabhas.
- There is a need to provide marketing and MSP support to non-timber forest products and create institutional mechanisms to support community forest enterprises for value addition.
- It is important that the Ministry of Tribal Affairs at the Central and State levels are strengthened with human and financial resources to help implement FRA on a mission mode.
Critically examine how the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is objective to empowers the communities to use, manage and govern forests for their livelihood as well as for the conservation and protection of forests.