Jul 22, 2020 15:02 UTC
Jul 22, 2020 at 16:03 UTC
Forest Rights Act: A legislation for the unheard
The Supreme Court judgment on 13 Feb, 2019 came as a shock to nearly two million individuals as their forest rights were declared unrecognized. The forest dwellers were declared as encroachers and were ordered to be evicted from land on which they were residing for past many decades. The horrors of the eviction process of 2002 came back to haunt the innocents, when a notice of Ministry of Environment & Forest dated 3 May, 2002 was issued ordering the nationwide eviction of encroachers from forest land. However, this notice was issued under the wrong impression that such eviction is ordered by the Supreme Court through their direction in T.N. Godavarman Thirumulpad v. Union of India & Ors. case dated 23 Nov, 2001.
The order of 13 Feb ,2019 did not came suddenly out of the box. On 29 Jan, 2016, the apex court in Wildlife Trust of India & Ors. v. Union of India & Ors., held that since 20.5 lakhs claims were rejected out of 44 lakhs, meaning these 20.5 lakhs individuals are residing upon forest land without having any rights, so they have to be evicted as soon as possible so that rights of others are not harmed. Court ordered the states to provide data regarded the number of rejected claims within two weeks. But to no surprise, many states did not file any such affidavit regarding such data, compelling the apex court to pass an order on 7 March, 2018 demanding information within four weeks, of actions taken against encroachers and claims rejected, as well as the status of eviction, and the area over which eviction took place and area over which eviction has not taken place.
What the Supreme Court later came to realize is that in a country like India bureaucratic data does not reflect the ground reality. So, through an order on 28 Feb, 2019 it put stay upon the earlier order and directed the state governments to provide the grounds of claims rejected, opportunity to adduce evidence to the claimant and procedure followed for claims and rejection.
Tribal Forest rights in India
Indian Forest Act, 1927 came as to recognize forest rights but it did least for tribal communities. It provided that the government
“can constitute any forest land or wasteland which is the property of Government or over which the Government has proprietary rights, a reserved forest, by issuing a notification to this effect“.
After independence as of now no substantial step was taken for recognizing the rights of tribal communities.
After the 42rd Constitutional Amendment, forests were shifted from “State list” to the “Concurrent List”. With this came the Forest Conservation Act, 1980 which prohibits non-forest use of forest land without GOI approval. It also advocates
“sustainable forest management through participatory approach“, with “due regard to the traditional rights of the tribal people on forest land“.
Following the footprints, the National Forest Policy ,1988 was also drafted and brought in.
Nevertheless, these acts were not sufficient for recognizing the rights of the tribal communities. Dr. B.D. Sharma, Commissioner for SCs and STs, 29th Report on the conditions of SCs and STs submitted on 28 May, 1990 which highlighted the historic injustice done to the tribal and forest-dwelling communities. Based upon the report, the MoEF issued six sets of “Guidelines” on 18 September 1990, dealing with: Regularization of Encroachments (FP1); Review of Disputed Claims over Forest Land (FP2); Regularization of Pattas & Leases (FP3); and Conversion of Forest Villages to Revenue Villages (FP5). These Guidelines were supposed to provide a framework to resolve the problem of settlement of rights of tribals and other forest dwellers on forest land. However, these guidelines were not followed by many states.
The Godavarman case and forced eviction in 2002 leads to many protests which resulted in the Scheduled Tribes and other traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The Act came with an objective to recognize and vest the forest rights and occupation in forest land in forest-dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded; to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.
Procedure to claim individual rights or community rights under the Forest Rights Act, 2006
The process of receiving the claims for individual or community forest resource rights of forest dwelling scheduled tribes or other traditional forest dwellers is initiated by Gram Sabha which includes all the adult members of the area. Gram Sabha calls for claims which has to be submitted within two months.
Gram Sabha is assisted by Forest Rights Committee (FRC) which is a committee of 10- 15 members selected amongst the Gram Sabha having 2/3 Scheduled Tribes and 1/2 women members, in receiving, acknowledging and returning the claim. FRC has main role in verifying the claims and it is on their intimation only the forest and revenue department official come for verification and evidence (which is mandatory for them) and sign the proceedings.
Claims prepared by FRC and acknowledged in writing are presented to Gram Sabha which passes a resolution and forwards them to Sub- divisional level committee (SDLC). If any modification or rejection of claim takes place it is communicated to the claimant so that he/ she could appeal before the SDLC within 60 days of passing of resolution.
On receiving the petition, SDLC will fix a date and intimate the petitioner and Gram Sabha 15 days prior to the fixed date. SDLC may accept, reject, or refer back the claim. On being referred Gram Sabha has to pass a resolution within 30 days.
Any claimant aggrieved by the decision of SDLC may appeal to the District level committee (DLC) within 60 days of SDLC decision. On receiving petition, DLC will fix a date and intimate the petitioner and SDLC 15 days prior of fixed date. DLC may accept, reject or refer the claim. On being referred SDLC hear the matter.
Undisputed matters would be forwarded from Gram Sabha to SDLC and then to DLC. The decision of DLC is final and binding. Finally, the claim is uploaded in the record of rights by the state government.
The Forest Rights Act and the relevant rules follow the principle of natural justice and provided certain safeguards:
- No petition is to be disposed of without providing a reasonable opportunity to the claimant to present the case.
- In case DLC does not approve any claim, they have to provide in writing the reasons to the claimant.
- No committee could be formed under SDLC and have a primary function to provide information and create awareness.
- All the matters of eviction and re-settlement would be undertaken by the State level monitoring committee (SLMC).
- Any rejection or modification by the SDLC or DLC should provide a detailed reason.
- No rejection could take place on technical or procedural ground.
- Incomplete claim should be sent back to Gram Sabha by the SDLC or DLC for reconsideration instead of rejecting it.
Identification of the issues
Despite having their rights recognized and statutory authorities to implement and protect them, forest-dwelling and tribal communities are still waiting for justice to be done. Certainly, there are some issues which need to be recognized as after 10 years of implementation of Forest Rights Act, 2006, only 3% of Community Forest Resource (CFR) rights could be achieved.
Powers have been conferred to the local bodies under the Forest Rights Act, 2006 which make it different from the other acts for the conservation of forest which take them just in a subsidiary form. But from time to time certain acts and rules have been brought up which conflict with the powers of local bodies such as Gram Sabha.
Under the Forest Conservation Act Amendment Rules, 2014, the collector is empowered to seek Gram Sabha’s consent “whenever required”, making it an option at his or her discrimination whereas Forest Rights Act, 2006 does not provide for any optional consent.
Under the Compulsory Afforestation Fund Act, 2016 Rs 42,000/- has been released to states and under Compulsory Afforestation Fund Act, 2016 it is not compulsory to take the consent of Gram Sabha.
A number of conflicts are still in process as lands upon which claims are confirmed or in the process are transferred to Joint Forest Management Committee which often functions arbitrarily. Like in 2015, the M.P government issued an order transferring management responsibility of CFRs to Forest department appointed JRM committees, which is against the provisions of Forest Rights Act, 2005. In other states like AP, Telangana and Chhattisgarh also, CFR titles are being issued to JRM committees.
Discrepancies in the procedure made and procedure followed
It was a matter for astonishment for the villagers of Podgaon village in Chhattisgarh when they received a notice in 2019 to appear at the district headquarter where they came to know that their claim has been rejected which was submitted 11 years ago. 110 claims were forwarded by the Gram Sabha out of which 25 were finalized. No notice was served from SDLC and no written reason for the rejection was provided. Similar situation is faced by people of Orissa and Maharashtra when CFR rights were recognized but not incorporated in the Record of Rights.
There are ample cases where discrepancies could be found in the procedure followed. At some places, Gram Sabha is being organized at the panchayat level. In the majority of cases, Gram Sabha filed a large number of cases, which are not mentioned in official reports or are pending before SDLC or DLC form a long time.
A new trend has emerged where evidence through satellite imagery is compulsorily asked which is not provided in 2012 Rules as they provide that satellite imagery and other technology may supplement other forms of evidence and should not be treated as a replacement.
Absurd forest and revenue department attitude
One thing that Forest Rights Act, 2006 did was to give more authority to local bodies like Gram Sabha which was earlier residing in other government officials. But even after coming of the FRA, 2006 the situation has not improved much. Customary boundaries delineated by the Gram Sabha are not accepted by the revenue and forest department and arbitrarily changed during verification. Objections are being raised at SDLC or DLC level by the forest department which they are not authorized to do as they have themselves verified the land site at the initial stage with the FRC.
Moreover, tribal land is being occupied by the forest department for planting trees under Compulsory Afforestation Fund Act, 2016. These types of forcible plantation are affecting the agro- biodiversity and food security of the community. As in the case of village Burlubaru in district Kandhamal of Orissa, forest department forcibly did teak plantation on the forest land, which was under traditional possession of Kutia Kondhs community. Teak plantation was done upon 49 plots out of 166 for which individual forest rights (IFR) have been issued since 2010 under FRA, 2006.
Political will to protect the tribal rights
The weak political will to protect the rights of tribal and other forest-dwelling communities has affected huge repercussions upon their degrading condition. Such communities are not being represented properly at the local levels and there is no one raise voice for them leaving certain areas where some civil communities are helping them.
What happened in the Kattugudem village of Telangana is more disturbing and raises a question as to who will raise voice for them at the ground level if the whole system becomes against them. In Kattugudem, Gram Sabha was dominated by members from a particular caste. New habitats were formed in the name of old habitats to confuse the records. This hampers the identity of local adivasis. They have to face reluctant and apathetic department authorities also as the status of their claims is not available. The problem is so much deep-rooted that its estimation can be realized from the fact that in Keonjahr district of Odisha forged Gram Sabha was organized and forged resolutions were passed.
Leaving aside the local bodies, state and central authorities are also not serious about reviving the individual or community rights under FRA, 2006. Guidelines issued by the MoEFCC in 2015 to lease out 40% of degraded forests to private companies for afforestation shows the careless nature of ministry towards the rights of forest dwelling communities.
Development projects as an obstacle
India is racing towards becoming a global leader and a trillion-dollar economy. But this development has come at the cost of many lives and rights of many individuals. Many development projects from time to time have encroached upon the forest land and rights of the tribal and forest-dwelling communities. The people of Koya community in Devaragondi village in Andhra Pradesh were also destined to the same fate when Polavaram project came in their area. The whole community was displaced from the area without the consent of the Gram Sabha. From the scheduled area the community was shifted to non- scheduled area which was against the rules. Their individual forest rights (IFR) were taken and only community forest resource (CSR) rights were given. Land was allotted to only a few individuals. The re-settled village does not have any burial ground, common land or cattle grazing land. These kinds of acts frustrated the rights of such individuals that have been displaced from their land.
It is time to strike a balance between the development projects and forest rights as the latter is always compromised in the name of the former leaving them with no right nor any land. Sometimes illegal methods are also opted by the authorities. In Surguja district in Chhattisgarh, CFR title of villagers was canceled illegally to facilitate coal mining, which had already been suspended by NGT for violating FRA, 2006. Forged NoC was obtained in the name of rejecting the mining project. Forged notice was given by sub- divisional officer to villages informing that they are not eligible for CFR. All this was done on the basis of the district collector’s letter of August 27, 2015, confirming that no rights under FRA were pending and no right holders were straying into the mining area.
These development projects have costed a lot of forest land to be wasted and with it the right of the tribal communities and other forest-dwelling communities. According to a Standing Parliamentary committee report of 2018, in the past 15 years (from 01.01.2003 to 20.06.2018), an area of 2,39,572.16-hectare forest land has been diverted for infrastructure projects under FCA, 1980.
The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was drafted and implemented with certain aims and objectives. But the ultimate goal of the act was never realized. The conditions of scheduled tribes and other traditional forest dwellers is the same as it was before the enactment of the act. With a huge number of claims being rejected and no proper tracing of claimant status, executive authority is discriminately at SDLC/ DLC is violating the rights of aggrieved parties.
No liability for officer vitiating his duty has been created except for a fine of Rs 1000. Moreover, the officer will not be liable if he/ she proves that violation takes place without his/ her knowledge and all diligence was exercised to prevent the commission of the violation. The question arises: would it be permissible for a member of the oppressed community to rebut such evidence. It is also important to note that the court could not take the cognizance of the violation unless a 60 days notice period has been given to State Level Monitoring Committee (SLMC) and they have not proceeded against the authority within these 60 days.
For the sake of justice, it is required that strict action is to be taken against violation of Forest Rights Act, 2006, and the liability of concerned authority officials is to be increased. But before that, we ourselves have to check our stance towards the rights of scheduled tribes and other traditional forest dwellers, and work for their upliftment. The government should also make policies in their favor rather than harboring contradictory statutes.
The apex court while considering the eviction of encroachers should consider the procedure by which encroachers have been identified and claims have been rejected. Modern technology like satellite imagery is beneficial but not necessarily a substitute. If such things are ignored then no one could stop the havoc that was created in 2002 against scheduled tribes and other traditional forest dwellers.
 Wildlife First & Ors. v. Ministry of Forest and Environment & Ors. W.P. (C) No. 109/2008.
 W.P.(C) No. 000202-000202 / 1995.
 W.P. (C) No. 50/ 2008.
 Available at Source Link (accessed on 18 July, 2020; 09:45pm).
 Dr. Jean Dreze, Tribal evictions from forest land, March 2005 (available at Source Link.
 Supra note 2.
 The Scheduled Tribes and other traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, s. 6(1).
 The Scheduled Tribes and other traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012, rule 11(1).
 Id., rule 3.
 Id., rule 11(2).
 Id., rule 12.
 Id., rule 12A (1).
 Id., rule 11(3).
 Id., rule 11(5).
 Id., rule 12A (3).
 Id., rule 14(1).
 Id., rule 14(2).
 Id., rule 14(4).
 Id., rule 15(1).
 Id., rule 15(2).
 Id., rule 15(4).
 Supra note 7, s. 6(6).
 Supra note 8, rule 16.
 Id., rule 12A (5).
 Id., rule 12A (7).
 Id., rule 6.
 Id., rule 10.
 Id., rule 12A (10).
 Id., rule 12A (6).
 CFR-LA, 2016: Promise and Performance: Ten years of the Forest Rights Act in India, Pg. 5, Dec 2016.
 Id. at 24.
 Vasundhara, Rights and Resources in India, Potential for recognition of CFR rights under India’s Forest Rights Act (July, 2015).
 Supra note 30 at 24.
 Kalpana Kannabiran, Council for Social Developmnent, Forest Dwelling Communities & Forest Rights Act 2006: Evidence from 24 sites, Pg. 30 (Nov, 2019).
 Supra note 33.
 Supra note 30 at 20.
 Supra note 8, rule 12A explanation 2.
 Supra note 33.
 Supra note 34 at 104.
 Supra note 34 at 153.
 Supra note 33.
 Kumar Sambhav Srivastava, Hindustan Times, Govt to allow pvt sector to manage 40% of forests, 13 sept, 2019 (available at Source Link) (accessed on 18 July, 2020 9:30pm).
 Supra note 34 at 5.
 Ishan Kukreti, Chhattisgarh High Court prevents PSU from evicting forest rights title holders, 5 Dec, 2019 (available at Source Link) (accessed on 18 July, 2020, 08:45pm).
 Status of Forests in India, 2018, Department-Related Parliamentary Standing Committee on Science & Technology, Environment & Forests, Pg. 21, Report no 324.
 Supra note 7, s. 7.
 Supra note 7, s. 8.