Forest Rights Rules : Move to Subvert Forest Dwellers’ Rights
Radhika Krishnan
When the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was passed in December 2006, there was a general consensus that this legislation was a major milestone in the struggles for tribal rights. Indeed, the very fact that the legislation admitted the historic injustice done to forest dwellers by treating them as “encroachers” on land they have been occupying for years, made it remarkable in itself.
It came as no surprise that the Act was stalled time and again by various lobbies: the entire forest bureaucracy together with the timber mafia, some wildlife conservationists and corporate houses.
Attempts to Delay Implementation
Ever since the Act was passed, these lobbies have been working overtime, using all the means at their disposal to prevent the Act from being implemented. Using the spurious claims of “wildlife habitat destruction” as an excuse, they demanded that “critical wildlife habitats” all over the country be identified, and the tribals residing there be evicted, before the Act is implemented. As a result, forest dwellers have been illegally evicted all over the country – in Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Orissa and elsewhere - before the Act could be enforced, and many thousands more face the prospect of eviction in the near future. Forest dwellers, who are opposing the destruction of their homelands, or the Forest Department’s intervention, have been slapped with criminal cases and arrests. This is of course not a new phenomenon. For example, in Orissa alone, an estimated 11,000 cases are pending in the courts against tribals for the “crime” of collecting forest produce the value of which is less than 100 rupees.
The Forest Rights Act has specified a comprehensive and exhaustive process that has to be followed before any area is identified as a “critical wildlife habitat”. Such a process implemented all over the country could delay notification of the Act by several years. Therefore, this game plan of identifying “critical wildlife habitats” is nothing but an attempt to scuttle implementation of the Act.
Stalling Through Courts
If this were not enough, the anti-tribal conservationists have used the judiciary to challenge the Forest Rights Act. At least four cases have been filed against the Act in various high courts, and one in the Supreme Court. All these cases have been filed by representatives of the Forest Department, or of wildlife conversation bodies.
Rules for Implementation: Further Dilution of the Act
In January 2008, more than a year after it was passed, the Rules for implementation of the Act were finally notified. The Rules, in their present form, are yet another reflection of the thorny path ahead in ensuring tribal rights in this country. Crucial recommendations made by the Joint Parliamentary Committee that was constituted for looking into the issue were dropped from the Act. Therefore, the Act itself had many loopholes to subvert people’s rights. However, the Government had promised that the Rules would clarify and plug the loopholes. Instead The Rules notified on January 1 2008 worsen the weaknesses inherent in the Act, and some cases actually introduce new loopholes and weaknesses.
Ambiguous Definitions
To begin with, the Act is ambiguous about who exactly comes under its purview. According to the Act, tribals who have been residing for 25 years prior to December 2005, and other non-tribal traditional forest dwellers who have been residing for 75 years prior to December 2005 (though not necessarily on the same piece of land throughout this time period) are entitled to claim land under the Act. However, only those who “primarily reside in the forest and depend on the forests or forest lands for their bonafide livelihood needs” are eligible. What constitutes “bonafide livelihood needs” has not been specified anywhere. The draft Rules did to some extent clarify the ambiguity: claimants need not “exclusively and necessarily reside on such forest or forest land”, as long as they depended on forestland. This important clarification is absent in the final Rules notified, and as a result some States have interpreted it to mean that only those with a residence on forest land will be eligible. However it must be remembered that the Minister of Tribal Affairs gave a clear assurance in Parliament that this provision is not to be interpreted in this restrictive manner. In fact the definition in the Act relates to whether the person lives in a forest area, not to whether the person’s own house is on forest land.
Also, forest dwellers who have been forced into the forests due to government policies have also been excluded. This definition leaves the door wide open for authorities to exclude thousands of families - an estimated 90 per cent of forest dwellers - from benefits promised by the Act.
Though the draft Bill talked about the people’s “responsibility” and “authority” in conservation efforts, the Act was less explicit. However the Act did recognize rights of forest dwellers include conservation of forests and biodiversity, and stated that people’s involvement would strengthen conservation efforts. Forest dwellers do have a right to use and sell non-timber forest produce – however, the definition of forest produce is limited to products of ‘plant origin’ and fish. The Act excludes the traditional rights of hunting or trapping or extracting a part of the body of any species of wild animals, and is also silent on whether fuel wood and stones come under non-timber forest produce. The Tribal Affairs Minister had promised Parliament that the rules would correct this omission – but the notified Rules do not do so.
Unmanageable Gram Sabhas
In the Act, the gram sabha was given substantial powers; the gram sabha (with the help of the elected Forest Rights Committee) was authorized to accept the claims, process them, and then pass the cleared legitimate claims to the Sub-Divisional Level Committee for further approval. Therefore, the gram sabha was envisaged as the basic unit for implementation of the Act. However, according to the Rules, the gram sabha has been defined as the gram sabha of the Panchayat, rather than the gram sabha of the hamlet where the claims are being made. Consequently, the size of the gram sabha - which would typically cover several villages - makes it unmanageable for it to handle its duties effectively. Genuine, democratic and transparent functioning will be virtually impossible. More seriously, in many areas forest dwellers will be the minority in the gram sabha. This rule is in direct contravention to the Forest Rights Act, as well as the Panchayat (Extension to Scheduled Areas) Act. There is another indication that the potential of empowering gram sabhas has been compromised yet again – “State agencies” have been included in the list of parties who are entitled to contest the decisions of the gram sabha.
Exclusion of genuine claimants while including contractors and traders
The Act uses constrictive definitions to exclude many forest dwellers from its purview (as has been mentioned earlier). The Rules far from addressing this, have gone one step ahead by letting contractors and traders who hire labour to classify as “traditional forest dwellers” and benefit from the Act, whether they are tribals or not. The Rules require two types of evidence for a claim; meaning that documentary evidence will be required in many cases, which many forest dwellers do not have.
Ignoring community conservation of forests
The main point of the Forest Rights Act is to ensure not just rights of forest dwellers over land, but also their rights over community resources. The wording of the Act is ambiguous - the Act does talk of “empowerment” under the section titled “duties of holders of forest rights”, though does not elaborate on the nature and extent of the powers available. However, the Rules remove all pretence of “empowerment”; only “duties” are mentioned, with a telling silence on the actual powers and role that forest right holders will be playing in managing community resources.
Non-transparent Procedures for Wildlife Protection
The Act had outlined an exhaustive process and guidelines for wildlife conservation, which the Rules have completely ignored. Instead the MoEF guidelines, which are self-contradictory and blatantly illegal, have been adopted. Also, the Act states clearly that eviction from national and wildlife sanctuaries can take place only after prior consent and resettlement of those displaced. This important clause has been completely ignored in the Rules as well as in the MoEF guidelines.
No Act is effective unless mechanisms to deal with all possible complexities that could arise are put in place; and this is where the Rules have failed. The draft Rules clearly stated the legal and administrative mechanisms that the gram sabhas were entitled to employ to implement the Act. The final Rules however ignore these provisions. They also provide no procedure or mechanism for conversion of forest villages and unrecorded settlements into revenue villages, for exercising the right to rehabilitation after illegal eviction or forced displacement, for exercising the right to habitat, or for penalising officers who violate the Act. The Forest Rights Act, like the NREGA, will require utmost vigilance, political mobilisation and struggles to allow its potential beneficiaries to get a measure of their due.
State-wise Implementation Till Date
The track record of implementation in various states till date reflects the weaknesses in the Forest Rights Act and the Rules notifying it. In state after state, the situations are similar. Gram sabhas of the panchayat have been called, though the state governments’ administrative apparatus has been completely unsuccessful in preparing itself. The Ministry of Panchayati Raj issued a circular on February 15 2008 ordering all state governments to convene gram sabhas in all the villages across the country for the Act within two weeks, by the February 28 2008. This ridiculous deadline indicates how seriously the UPA government is about effectively implementing its own most “progressive” legislations.
Neither the Central government, nor the State governments have bothered to publicize the provisions of the Act. The lack of preparation has translated into such poor attendances at the gram sabhas that most often the required 66% quorum has not been met. Very rarely have gram sabhas been called at the hamlet level, which would have ensured much more participation and transparency.
Apart from the unsuccessful and ineffective gram sabhas, predictable problems have been reported – claimants not being able to produce the required documentation, restrictive criteria being used to deny claims, and forest bureaucracy along with government surveyors handling the claims rather than a more representative body. In most states, the stand of the state government on the “reside in forests” issue remains unclear, though clarifications have been requested from the Central government.
Forest Rights Committees (FRCs) have been formed without any awareness drive or proper democratic process, and their members have no idea of their rights and responsibilities. Sub-Divisional Level Committees (SDLCs) and District level Committees (DLCs) have not been formed in many districts.
Lack of required documentation, even ST certificates, is a serious problem that could prevent many forest dwellers from claiming their rights, though the process of inviting claims has largely not yet begun.
In Jharkhand, implementation is yet to begin: the government’s excuse is that it is unable to implement the Act since Jharkhand has no elected panchayats. However, this excuse does not hold any water, since the Act specifically states that in states that have no panchayats, the traditional village institutions (padas, tolas etc.) will perform the role of gram sabhas.
In Gujarat, the forest department is continuing to dig trenches and pits on cultivated lands in some areas. Hamlet level self-declaration of gram sabhas has been rejected in some areas by officials. The DLCs and SDLCs are yet to be formed. In a couple of districts, field implementation has been delegated to forest officials who are saying that only those 'living in' forests shall be eligible for the recognition of rights. However, orders have been issued that the forest department should not be involved with liason work in the field due to the fact that it is an 'interested party'.
In many states, claim forms have not reached all the villages and the process of receiving claims has not yet begun.
In Chhattisgarh, in the Salwa Judum areas there are moves afoot to hold gram sabhas inside the so-called relief camps, where only 15% of the population is living now - a clear and total violation of the Act. The Chhattisgarh government aims to effectively bypass the Act process and grant pattas as per their earlier illegal - and corrupt - "surveys", a point that is strengthened by the fact that the government is already announcing figures of "beneficiaries" and areas for which pattas are to be given even before the Act is implemented.
In Andhra Pradesh, instead of acceptance or rejection of claims by the FRC and the gram sabha, many claims are being prematurely rejected by the forest department, especially claims for land under shifting cultivation. As in the case of Chhattisgarh, the state govt has been publicly confusing the FRA process with its own survey, and has been citing figures for the area of pattas it will issue. Simultaneously, there are also moves to forcibly relocate Chenchus from the Nallamala forests, under the garb of "voluntary" relocation - even though such 'voluntary' relocation is also illegal until the process in the Forest Rights Act is complete.
In West Bengal, implementation of the Act appears to have begun near the end of March, with a circular that directed constitution of Forest Rights Committees at the gram sansad level. However, the process stopped soon after the end of March due to the announcement of panchayat elections. Therefore, neither FRCs, nor SDLCs and DLCs have been formed. However, the Act is being violated in some parts of the state – “critical wildlife habitats” have been notified in the Sunderbans and the Buxa Tiger Reserve. No hearing was conducted to seek the opinion of the local forest villagers before the notification was issued. Nor was the gram sabhas’ approval obtained, though both were mandatory according to the law. An estimated 2 lakh people are likely to be threatened by the notification. Forest villagers in Purulia and West Midnapore, too, are being displaced in the name of development.
Guidelines for Activists
Who is eligible?
As the process of implementation of the Act is being initiated, it is necessary that activists understand where and how to intervene. There will be every attempt to scuttle effective implementation of the Act, and all possible vigilance will be required. Firstly, regarding who is eligible for rights under the Act, there is considerable ambiguity. Owning a house on forestland is obviously sufficient, though even those who not technically “reside” on the land, but use the land for grazing, cultivation, collection of minor forest produce etc. could be considered eligible. “Bonafide livelihood needs”, which quality a person for availing of benefits, include sale of the crops cultivated on the land, sale of minor forest produce collected in the forest and income from water bodies and grazing.
Formation of FRCs
At the first step (election of the FRCs through the gram sabha), one must insist that the gram sabhas be convened at the village/hamlet level, not at the revenue village or panchayat level. In Scheduled Areas, this is a legal mandate that has to be followed, but elsewhere too, this should be demanded from the SDO/SDM. FRCs typically consist of 10-15 members. The members should be STs and non-STs in proportion with their populations, with at least one third ST members, except where there are no ST's, and one third women members. We must try to get the maximum number of tribals included in the FRCs.
Claiming rights
The second step is claiming rights. The gram sabha will first invite claims, and the elected FRCs will collect the applications (there is a set performa available). We must campaign to ensure that claim forms are made widely printed and distributed to all the potential beneficiaries. Evidences have to be submitted along with the application form, the details of which have been laud out in the Rules. However, in general, government records, public documents, physical attributes of the land, statements from village elders reduced in writing in the form of affidavits, research studies, and judicial records, are all admissible. In the case of community rights, FRCs or representative bodies, rather than individuals will file the claims.
Though there is a three-month deadline for collecting applications, the gram sabha can extend this deadline if necessary. Claims can be made for land being occupied, cultivated or under customary use. “Occupied” need not necessarily mean cultivation alone – it could also include private land used for grazing or parts of the plots that are left fallow to be used in the next agricultural cycle. Also, existing pattas which the Forest Department does not acknowledge can be converted into legal titles (in this case, the upper limit of 4 hectares is not applicable). Also, rights over “disputed” forestlands can be claimed. This includes “deemed” forests, unsurveyed forests, and forests where final notifications were never issued.
Any land claimed by an individual or a community should have been under their direct occupation since before December 13, 2005 and should still be in their possession at the time of making the claim. Any pattas received under this Act cannot be sold or transferred to any other person, but the owner's children or heir can inherit these lands.
Procedure for approving claims
After receiving the claims, the FRCs have to physically verify the claims, and the state government has to provide any data or information that is requested by FRCs during the validation process. The FRCs then submit the validated claims for the gram sabhas approval. If any claimant is not satisfied with the gram sabha’s decision, appeals can be made to the SDLCs. After the gram sabha’s approval, the claims are forwarded to the SDLCs, and then the DLCs for final approval. The DLCs are the final authority, which orders the required changes in official records.
It is very significant that the SDLCs along with the right to settle disputes between gram sabhas, have the right to hear appeals against, verify, and reject claims approved by the gram sabhas. Similarly, the DLCs have the right to overturn the decisions of the SDLCs.
Community rights
Regarding minor forest produce (only produce of plant origin and fish are covered by the Act), communities as a whole can claim rights of ownership, collection, use and disposal over a specified area. Transport of minor forest produce through head loads, handcarts, or bicycles is allowed, though motorized transport is not allowed.
Similarly, entire villages, sections of villages, communities (both settled and nomadic), can claim rights over water resources and grazing land. Pre-agricultural communities can also claim rights of residing in, controlling and protecting habitats. Traditional nistari rights can be reclaimed under the Act, as well as unrecorded settlements and forest villages. However, in making this claim, it is important that all community resources and facilities be explicitly mentioned, not just the boundaries of the region being claimed. Harassment of tribals, especially women, for collecting forest produce must be vigilantly resisted.
Rights against eviction and displacement
The Act can also give a right to rehabilitation in case of illegal eviction or forcible displacement without compensation. Though the Act is ambiguous about how rehabilitation and compensation for past evictions will be ensured, at least multiple displacements can be prevented.
The Act gives holder of rights the power to protect and conserve, manage, regenerate and sustainably use community resources (which include wildlife, forests, biodiversity, water resources, sacred groves etc.). Therefore, gram sabhas can draft rules for protection and conservation and gram sabhas also have the power to enforce these rules.
Regarding wildlife sanctuaries and national parks, the Act categorically states firstly that no eviction can take place without prior informed consent of the people through the gram sabha approval. Secondly, the need for eviction has to be conclusively proved, by a representative body not just unilaterally by the MoEF. Thirdly, those evicted have the right for a secure livelihood, which is not merely cash compensation.
Campaign for Awareness of Rights
We must undertake campaigns to make forest dwellers aware of their rights – possibly through distributing leaflets and booklets with copies of the relevant clauses from the Act. Tribal women have special benefits under the Act since all land pattas have to in the name of both spouses.
Mass mobilization and militant movements must challenge the criminal nexus between the forest department, corporate houses, and the corrupt administrative apparatus.
(Information on the state-wise implementation of the Act has been taken from reports issued by the Campaign for Survival and Dignity)