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Recognition of Forest Rights of Scheduled Tribes: In Context of Community Forest Rights

INTRODUCTION

Commonly perceived as rights of local forest dwellers over forest products and forest land, forest rights have been a major area of concern as well as debate in India. In colonial and independent India, although a large tract of land would be recorded as “unclassed” forest in Government records, ownership was unclear, and because most of these forests were home to a large number of tribals, the land was acquired by the Forest Department without settling their rights over them. After Independence, supported by improper survey and settlement, large tracts of land were declared as “reserve forests,” meaning no rights either existed there or would exist later and all who either resided or claimed rights would be termed as encroachers.

Since the primary intention of colonial laws was to take over lands and deny the rights of communities, the “settlement” process initiated during the late nineteenth and early twentieth centuries was hardly effective. Surveys were often incomplete or not done. Where the claims process did occur, the rights of socially weaker communities—particularly tribals—were rarely recorded. The problem became worse particularly after Independence, when the lands declared “forests” by the Princely States, the zamindars, and the private owners were transferred to the Forest Department through blanket notifications. In short, what the Government records called “forests” often included large areas of land that were not and never were forest at all. Moreover, those areas that were in fact forest included the traditional homelands of communities. As such consolidation of Government forests did not settle existing claims on land; all people, mostly tribals, who lived in these forests, were subsequently declared “encroachers,” as they did not have recognized rights and claims to their ancestral homelands.

The Supreme Court of India in an important case held that the tribals have a definite right over the forests and any sort of forest diversion or eviction should have their informed consent. Following suit, in an affidavit to the Apex Court, in June 2004, the Government of India made a significant admission by holding that “historical injustice” had been done to the tribal forest dwellers of the country, which needed to be immediately addressed by recognizing their traditional rights over forests and forest land. What made this admission particularly crucial was its acceptance that colonial perspective on forest management had failed and alienated a large chunk of the forest dwellers, especially tribals from forests and forest-based livelihood options. Besides, it could not have come at a better time—just months after the eviction of about 168,000 families from over 150,000 hectares effected by the May 2002 Government order of eviction of forest encroachers. This led the Government of India to introduce the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 in Parliament on 13 December 2005. This legislation is now widely accepted and revered as a major step towards achieving social justice and a milestone in the tribal empowerment process.

HISTORICAL DEVELOPMENT OF FOREST RIGHTS

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.

PROVISIONS FOR COMMUNITY FOREST RIGHTS UNDER FRA

The FRA recognises and vests secure community tenure on ‘community forest resources’, which are defined as common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in case of pastoral communities, including reserved forests, protected forests and protected areas such as sanctuaries and national parks to which the community had traditional access.

  • It covers community rights such as usufruct (nistar), or by whatever name it is called, including those used in erstwhile princely states, zamindari or such intermediary regimes. It confers the right of ownership and access to collect, use and dispose of MFPs traditionally collected within or outside the village boundary.[1]
  • It defines MFPs to include all non-timber forest produce of plant origin, including bamboo, brushwood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers and the like.[2]
  • It covers local-level processing, value addition and transportation of MFPs in forest areas by head-loads, bicycle and handcarts for use or sale by the gatherer or community for their livelihood. The use of motor vehicles is regulated by existing transit rules.[3]
  • It covers other community rights for use or entitlements, such as fish and other products of water bodies, grazing and access to traditional seasonal resources by nomadic or pastoral communities.[4]
  • It covers rights of primitive tribal groups (PTGs) and pre-agricultural communities to community tenures for habitat and habitation.[5]
  • It covers rights in or over disputed lands under any nomenclature in any state where claims are disputed.[6]
  • It covers rights to convert pattas, leases or grants of forest lands issued by a local authority or state government into titles.[7]
  • It covers the right to protect, regenerate, conserve or manage any community forest resource that forest dwellers have been traditionally protecting and conserving for sustainable use.[8]
  • It covers the right of access to biodiversity and community rights to intellectual property and traditional knowledge related to biodiversity and cultural diversity.[9]
  • It covers any other traditional rights customarily enjoyed by STs or other traditional forest dwellers that are not mentioned in the earlier clauses, excluding the traditional right to hunt, trap or extract a part of the body of any species of wild animal.[10]

OTHER IMPORTANT PROVISIONS RELATING TO COMMUNITY RIGHTS

The Government of India reserves the right, regardless of the FCA provisions, to divert forest land for the following government-managed facilities: schools. dispensaries or hospitals, anganwadis, fair price (PDS) shops, electricity and telecommunication lines, tanks and other minor water bodies, drinking water supply systems and water pipelines, water or rain water harvesting structures, minor irrigation canals, non-conventional sources of energy, skill up-gradation or vocational training centres, roads, and community centres.

However, such diversion for developing common infrastructural resources, which was not permissible earlier, will be allowed only if the forest land to be diverted is less than one hectare in each case and not more than 75 trees per hectare are required to be felled. Also, recommendation of the Gram Sabha is required to clear the project.

The Government of India reserves the right to modify forest rights and resettle forest dwellers to create inviolate areas for wildlife conservation in critical wildlife habitats (national parks and sanctuaries) subject to the following conditions:

  • The process of recognising and vesting rights of forest dwellers in the areas under consideration is completed in accordance with the specifications in section 6.
  • The concerned agencies of the state government establish, in exercise of their powers under the Wild Life (Protection) Act, 1972, that the activities or presence of the forest dwellers can cause irreversible damage and threaten the existence of the animal species and their habitat.
  • The state government concludes that other reasonable options, such as co-existence are not available.
  • A resettlement or alternative package to provide a secure livelihood for the affected individuals and communities that fulfills their requirements under the relevant laws and policies has been prepared and communicated.
  • The free and informed consent of the Gram Sabhas in the area for the proposed resettlement package has been obtained in writing. No resettlement can take place until facilities and land allocation at the resettlement location are complete as per the promised package.
  • The critical wildlife habitats from which the rights holders are being relocated are not subsequently diverted by the state or central government or any other entity for other uses

TYPES OF FOREST RESOURCES USED BY THE COMMUNITY

The study team conducted a PRA exercise in the sample villages to identify the range of forest assets and resources used by communities and map claims that could be made for community and individual user rights to these resources. The facilitators also made field visits during which they interacted with the village communities and identified several other resources that could potentially be claimed under the FRA. Some of the important community resources and which could potentially be claimed as Community Forest Resources are listed below:[11]

  • Places of worship: The community has several places of worship that are visited and used regularly, especially for organising seasonal festivals throughout the year.
  • Forests for Usufruct (Nistar) Rights: The community depends on forests for fuel-wood for cooking and wooden beams, pillars and rafters for constructing huts. Animals are also let loose in the forests to graze.
  • MFP collection: Tribals and other forest dwellers collect a wide range of MFPs from forests, such as gond (gum), khair, sal seeds, harra, baheda, chota phool, bilaiya hana, arjun, nokha, murli etc. Two key MFPs are kendu patta, which they collect in large quantities for earning a cash income, and mahua, which they pluck for personal use.
  • Water bodies: There are several water bodies in forests – such as large and small ponds, rivulets and seasonal rivers – that are accessed by the community on a regular basis for water, fisheries and other water-based resources.
  • Quarries: The community also depends on small quarries in the forests for materials like sand and sandstone, which they use for constructing their houses. These quarries are used for self-consumption, not for commercial purposes.
  • Cremation/burial grounds: A key use of forest land by the community is for cremation/burial purposes. Different tribes have their designated cremation/burial grounds in the forest.
  • Connecting and approach roads: There are many connecting roads between villages and approach roads from the village to the highway. Pathways are also commonly used to access public utility spaces like ponds, burial ground and temples.
  • Community halls and other government infrastructure: The government has created several community assets to render services to the people, such as PDS shops, schools, PHCs, anganwadis, Panchayat bhawans, etc. Many of these facilities are on forest land and are regularly accessed by village communities.

PROCESS & PROCEDURE FOR IMPLEMENTATION OF FRA

  1. Sub-Section (1) of Section 6 of the FRA designates the Gram Sabha as the authority to initiate the process for determining the nature and extent of individual and community rights to be given to STs and other traditional forest dwellers within the limits of its jurisdiction. It shall receive claims, consolidate and verify them and prepare a map delineating the area where each recommended claim can be exercised. The Gram Sabha shall then pass a resolution to this effect and also forward the copy to SDLC. The list of claims for community rights shall be prepared by the Forest Rights Committee (FRC), on behalf of the Gram Sabha, in accordance with Rule 11 (4) of the Rules.

The evidence to be furnished to back up the claims includes:

  • Details of community rights such as usufruct (nistar) or by whatever name it may be called[12]
  • Details of traditional grazing grounds; areas for collecting roots and tubers, fodder, wild edible fruits and other MFPs; fishing grounds; irrigation systems; water sources for human or livestock use; territories for herbal practitioners to collect medicinal plants[13]
  • Details of structures or their remnants built by the local community, sacred trees, groves and ponds or river areas, burial or cremation grounds[14]
  • The FRC will verify the claims of pastoral and nomadic tribes to determine their rights, either individual or community or traditional community institution, in the presence of these individuals, communities or their representatives[15]
  • Similarly, it will verify the claims of Primitive Tribal Groups or pre-agricultural communities to determine their rights to habitat, either through their community or traditional community institution, in the presence of these communities or their representatives[16]
  • If there are conflicting claims from another village in respect of traditional or customary boundaries, or if a forest area is used by more than one Gram Sabha, then the FRCs of the Gram Sabhas of the concerned villages will meet to jointly consider the true status of enjoyment of such claims and submit their findings to the respective Gram Sabhas in writing[17]
  • If the Gram Sabhas are unable to resolve the conflicting claims, they will refer the matter to the SDLC for resolution.
  • Once it receives the findings of the FRC {clause (v) of sub-rule (2)}, the Gram Sabha will meet, after giving the required notice, to consider the findings, pass appropriate resolutions and forward these resolutions to the SDLC[18]
  • The decision of the DLC on claims for user rights to forest resources will be final and binding[19]
  • The state government will constitute a state-level monitoring committee to ensure recognition of forest rights as well as monitor the process in accordance with the Rules (2008) framed to implement the FRA[20]

[1] Sub-Section 1 (b) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[2] Section 2 (i) of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[3] Sub-Section 1 (c) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006  further clarified under Rule 2 (d)

[4] Sub-Section 1 (d) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[5] Sub-Section 1 (e) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[6] Sub-Section 1 (f) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[7] Sub-Section 1 (g) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[8] Sub-Section 1 (i) of Section 3 The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[9] Sub-Section 1 (k) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[10] Sub-Section 1 (l) of Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[11] Training Manual – 1, Forest Rights Act Training Manual for Government Functionaries, SCSTRTI. Available at https://tribal.nic.in/FRA/data/FRATrainingManual.pdf.  

[12] Rule 13 (2) (a) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. 

[13] Rule 13 (2) (b) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. 

[14] Rule 13 (2) (c) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. 

[15] Rule 12 (c) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. 

[16] Rule 12 (d) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. 

[17] Rule 12 (3) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. 

[18] Rule 11 (1) (5) of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. 

[19] Sub-section 6 of Section 6 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[20] Rule 9 of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012.