Historical Development of Forest Rights in India
The history of centralized control of forests can be traced to the enactment of the Forest Act of 1864, which empowered the colonial government to declare any forest land as government forest; a process strengthened in the 1878 Act, which classified forests into ‘protected forests’, ‘reserved forests’ and ‘village forests’; the National Forest Policy of 1894, which re-iterated the regulation of rights and restriction of privileges of ‘users’ in forest areas for the public good; the Land Acquisition Act of 1894, which permits compulsory acquisition of land for a ‘public purpose’; and the 1927 Act, which remains the main legal basis for depriving forest dwellers of their user rights to forest resources. Under the banner of scientific management of forests, the intended objective of these policy formulations was to maximize profits, encourage conservation and discourage forest dwellers from ‘exploiting’ forest resources. The formal and ‘legal’ appropriation and enclosure of forests inevitably led to the ‘criminalisation’ of normal livelihood activities of millions of forest-dependent people, conferring on them the legal status of ‘encroachers’,
With Independence, the expectation of the forest dwellers increased for restoration of their rights so was the legislative intent of independent India. In the process of reformation few issues emerged such as in the process of amalgamation of princely states and abolition of zamindari system the unsurvey non-private lands were declared as government property either as forest or revenue wastelands. Though the state government proclaimed such forest lands as deemed reserve forest or deemed protected forest, few effective steps for settlement of rights were taken. Due to the improper survey and settlement process, the locals inhabiting these lands started being treated as ‘encroachers’ on their their ancestral homelands as they did not recorded rights over them. this historical injustice was further accentuated by the Wildlife (Protection) Act 1972 and the Forest Conservation Act 1980 which made environmental protection and recognition of the rights of tribal communities as mutually irreconcilable objectives.
On emerging of such issues in 1990s, the Ministry of Environment and Forest (MoEF) made efforts to resolve the aforementioned land issues and issued series of guidelines for resolving disputed lands between the tribal people and the state. In 2002, the said Ministry instructed state governments to evict the ineligible encroachers and all post 1980 encroachers from forest lands. Further in 2004, the MoEF issued two circulars one relating to ‘regularization of rights of tribals on the forest lands’. The date of regularization of the encroachments was extended to 31st December 1993. The other circular was titled ‘stepping up of process of conversion of forest villages into revenue villages’. Both these circulars were stayed by the Apex Court in the case of T.N. Godavarman case (W.P. (C) 202/1995) and the I.A. No. 703 filed by the Amicus Currie. While praying for vacation of the stay, the government admitted that during consolidation of forests, the rural people particularly the tribals who have been living in forests since time immemorial were deprived of their traditional rights and livelihood and consequently have become encroachers in the eyes of law.
In 2005, the ministry of tribal affairs mandated to formulate a comprehensive legislation to redress the historical injustice done to tribal community. Accordingly, the Forest Rights Bill was introduced in the Parliament. Due to protest both from environmentalists and wildlife groups the Bill was referred to the Joint Parliamentary Committee (JPC). As many tribal forest dwellers had been served with eviction notices in May 2002 for being encroachers and they could not produce residential evidence in forest, the JPC recommended that a caught up date for the settlement of rights’ be extended to 13th December 2005. It also recommended inclusion of on scheduled tribe ‘traditional’ forest dwellers (OTFDs) living in the forest for three generations within its ambit. It also recommended multiple uses for shifting cultivators and removed the land ceiling of 2.5 hectares for land rights. The other recommendation of JPC included ensuring of minimum support price (MSP) for minor forest produces (MFP) and the Gram Sabha as the final authority for settlement of rights. The Gram Sabha was recommended to be the center stage with PESA as a reference point. But when the Bill was introduced in the Parliament, the pre-eminence position of PESA in relation to Gram Sabha was ignored.
Finally, in 2006, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (or simply Forest Rights Act – FRA), was enacted with the notification of its administrative rules. The Act inherently recognises that a healthy ecosystem is compatible with social justice technically holds precedence over all other forest and wildlife-related laws. It provides for restitution of traditional forest rights to forest dwellers across India, including individual rights to cultivated land in forested landscapes and collective rights to control, manage and use forests and its resources as common property. It also stipulates the conditions for relocation of forest dwellers from ‘critical wildlife habitations’ with their ‘free informed consent’ and their rehabilitation in alternative land.