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 India’s 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 government’s 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 sabha’s 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 forest’s 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 Department’s 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 Act’s 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 Act’s legal cut-off date;

demands that claimants should be on the Department’s ‘encroacher lists’; undue

appropriation of authority to control decisions over claims; the imposition of the

Department’s 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 Act’s

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 hasn’t 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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