‘The dilemma of the Forest Right

Introduction

The UPA led government will perhaps be remembered for implementing so many acts and ordinances. It is now the turn of The Forest Right Act, which is now creating a stir of opinions in the nation. Passed in the year 2006, it is still being targeted. The basic target of this Act, also known as, the “Tribal Land Act,” is giving the rights of forest dwelling communities to land and other resources, denied to them over decades, as a result of the continuance of colonial forest laws in India. It takes step towards new system of conservation. India’s scheduled tribes are probably amongst the country’s most marginalized groups of people. Despite some positive actions, constitutional provisions, a number of schemes intended at socially and economically benefiting them, the results on the ground continue to be disappointing[1]. India’s forest is governed mainly by two laws ‘The Indian forest act, 1927’ which empowers the government to declare any area to be a reserved forest, protected forest or village forest and ‘The wildlife( protection) act,1972’, allows any area to be constituted as a "protected area", namely a national park, wildlife sanctuary, tiger reserve or community conservation area. Under these laws the rights of the tribal people who depend on these protected areas are to be settled by a ‘forest settlement officer’. His job is to listen to the claims of the people, which when forwarded and then if found valid, the people either continue in their occupation or deny them and give compensation to the same.[2]

 The problem is that this has not been applied in full force and if applied, was full of shaky problems. Those whose rights were not recorded during the settlement process are susceptible to eviction at any time. This leads to harassment, evictions, extortion of money and sexual molestation of forest dwellers by forest officials, who wield absolute authority over forest dwellers' livelihoods and daily lives. The Statement of Objects and Reasons of the Forest Rights Act describes it as a law intended to correct the "historical injustice" done to forest dwellers by the failure to recognise their rights[3].

The basic features of the Act

There are certain features of the Act which are worth being mentioned. The Act embodies Rights given to the claimants, the duty of the claimants once becoming a legal entity of their occupation and also the eligibility criteria.

The Act guarantees twelve types of rights[4]:

Right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers.
 

Community rights such as Nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes.
 

Right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries.
 

Other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities.
 

Rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities.
 

Rights in or over disputed lands under any nomenclature in any State where claims are disputed.
 

Rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles.
 

Rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests, whether recorded, notified or not into revenue villages.
Right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.
 

Rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State.
 

Right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity.
 

Any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal.
 

Right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes and other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005
 

The Act also establishes the eligibility criteria for people who could enjoy the privileges. This includes that the claimants be either, schedule tribe or those who have lived for 75 years in the area. Other than this, people who primarily depend on the forest are eligible.

It also embodies certain Duties to the claimants[5]. These are as follows:

Protect the wild life, forest and biodiversity
Ensure that adjoining catchments area, water sources and other ecological sensitive areas are adequately protected;
Ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers is preserved from any form of destructive practices affecting their cultural and natural heritage;
Ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with.
 

Plethora of ifs and buts

It has not been a smooth ride for the Act. Although it was approved by the parliament unanimously, it has met with severe criticisms from various corners of the country. Most of it coming from the wildlife groups across the nation. The uproar has been so much that presently the Act is facing at least five petitions against it in various courts.   In a hearing on March 28, 2008 The Supreme Court directed that notice be issued on two petitions filed by wildlife organization attacking the constitutionality of the Act. Besides this, cases on the issue are pending in the Bombay High Court, Madras High Court (two cases), Andhra Pradesh High Court and Kolkata High Court. The Supreme Court petition has been filed on behalf of four organizations[6].  Apart from the wild life concern, there are various loopholes in the present Act, it not only threatens the forest but also does not lives up to the said purpose.

The provision for the eligibility of the claimants, states the giving of the right to the schedule tribe. Now, this excludes other traditionally forest dwelling communities that are equally poor; and are like the ST’s, discriminated against, but are either non-tribal or have not had been scheduled or notified as tribes in the state in question.
 

 Regarding the eligibility that the claimants are supposed to have been living in the said area from 25th October 1980, the problem here is that it is difficult to obtain proof of their occupation. Even if the person has a proof of staying in a particular area how will they show their continuous stay? Many a time’s displacement of people occurs due to large scale eviction, which is not under their control.
 

 The Bill is also parsimonious in the land rights that it confers on these limited right-holders; it restricts the land to the actual area under occupation or 2.5 hectares for every nuclear family, whichever is less. This is against the principle of the Right to Equality since much higher land ownership is permitted under land ceiling legislation in different States. The Act provides ownership of 50 million hectare of land to almost 80 million tribal people. This would have a huge impact on the environment and push India in becoming one of the world’s highest emitters of green house gases.[7]
 

There has been a mention of a monitoring committee. There is surely going to be no transparency and the evils of beurocracy will creep in. The Act grants arbitrary power to the central government.
 

Rule 4.8(b) states that the land granted to dwellers of revenue villages, created out of forest villages or such settlements which are located in deep interiors of such forest land shall be used for ‘bona fide livelihood activities’ and shall not be put to ‘ecologically undesirable commercial use’ in any form. Now the problem here is who is competent enough to know what the above mentioned terms really mean? Who would be designated to define the terminology? And if it is still not clear then does the forest department get the right to do so?
 

Rule 5(2) states that the Gram Sabha may seek help from the forest department or other local authorities for implementing its norms. But the provision at no point says that the Gram Sabha has the power to override the decision of the forest department. This negates the principle of people management of forests
 

Rule 9(6) states that the Forest Rights Committee would prepare and authenticate a map with the concerned revenue and forest authorities delineating the area of such recommended claim with recognizable land marks. This provision contradicts the Act itself which says that the gram sabha would have the power
There has been always a debate over the extinction of tigers in India. Wildlife conversationalist fears that this Right would see the end of tigers in India. Poaching would become very much prevalent. It would be impossible to keep a check on it. The ‘tiger lobby’ believes that the only way to save tigers is by emptying their habitat of people (in most cases tribals) residing there. With this Act, it would become impossible to relocate them
 

The Recommendations

 A Joint Parliamentary Committee (JPC) was constituted to look into the issue in a comprehensive manner, and to come up with recommendations for the government to consider. The recommendations put forth by the joint parliamentary committee are noteworthy to be mentioned since because of these recommendations the left supported the bill.

The extension of the cut-off date to December 2005,
Doing away with the land ceiling completely,
Extending the legislation to include all forest dwellers
The recommendation also suggested in making the Gram Sabha more powerful by countering the power given to the forest department by the Act. The Gram Sabha was to be vested with the responsibility and authority for settling land rights of forest dwellers. The Act now mandates that Panchayati Raj officials (sarpanchas etc.) would be part of the process along with officials of the forest department. This is a significant dilution of community control originally envisaged.

Also, now, gram sabha approval for forestland diversion and land acquisition is not mandatory. The Act in its current form does not give paramount control over forest resources to forest dwelling communities. In other words, the Act has provided loopholes for continued mafia and corporate control over forest land resources. Forest dwellers do have a right to use and sell forest produce – however, the definition of forest produce does not include crucial products like fish, leaves, fuel wood and stone.

Blast from the past

Jhabua and the district of Khargone, Badwani in west Nimar had forests as good as the upper reaches of the Narmada. Two leaders supported a movement which encouraged the Bhils (local tribe) to encroach on forest land. That led to massive deforestation in the area, and government, in an act of abject surrender then settled the land with the encroachers. Jhabua now epitomizes man-made draught, and it is an ecological disaster. In west Nimar there is no water to drink, no fodder for cattle, no fuel wood for poor, and the agriculture on degraded land is not enough to the local people. There is extensive seasonal migration in search of jobs, and there is abject poverty[8]. A group Vanshakti, fears that this might happen to the rest of the country, due to the implementation of the Act.

The positive outlook

Although the act has been agonizing to various sectors like the forest department, the various NGO’s etc it cannot be said that the act is of no good. The tribals, the weaker section of our society are going to benefit from it in a lot of ways.

The Act recognizes the right to homestead, cultivable and grazing land, and to use products which are non-timber in nature. The tribals have been also called encroachers, who have illegal possession of the forest land. But with this Act, the tribes will become legal heads of their possession. It rehabilitates them. It has also been mentioned that now if any developmental processes have to happen in or around the Protected Area, it would require peoples consent.

One of the most endearing facts of the Act is that it not only prescribes certain rights to the people but also they have been assigned with certain duties. This not only restricts the chances of misusing their rights but also make them more aware of protecting wildlife and biodiversity. The Act also says that the forest areas under where they are going to live will now be called community forest resource, and forest dwellers can act decisively in conserving those resources.

Conclusion

The most disturbing feature of the Act is that it is susceptible to interference by the judiciary and by other authorities. Section 15 of the Act states, this Act “shall be in addition to and not in derogation of any other law in force.” In other words, this provision may lead to a bizarre situation - though forest dwellers will be provided land rights, they might still not be able to exercise their right over their land – since this right will be subject to the provisions of the Indian Forest Act! Also, the judiciary can withdraw the rights provided by the Act. The solution for this is obviously to put the Act under the Ninth Schedule. However, this will probably not happen since the Schedule itself is under scrutiny. Ever since the Act has been passed, the UPA government, and the CPI(M) too, have been patting themselves on the back – claiming it as a major victory for tribal rights in the country. But the Act has failed in fulfilling even the limited agenda of legitimising and providing land rights to forest dwellers; in a major betrayal, the door has been left wide open for takeover of forests by mining corporates, timber mafias and the like.[9]

Despite the above-mentioned provisions, the fears of wildlife conservationists are partially justified. Responsibilities and duties regarding conservation are applicable to all activities except those that are permitted as rights. Does this then exclude rights that could be ecologically destructive? The gram sabha is given the duty to stop any activity adversely affecting wildlife, forest, and biodiversity, but can it over-ride granted rights? Ambiguity on this count needs to be removed. Additionally, it is not clear if the Sub Divisional Committee and the District Committee are to consider ecological implications. A clearer system of checks and balances is needed. Indeed it is needed even for the current system in which the Forest Department is vested with exclusive authority over forests and wildlife. Only a fully transparent and open system of functioning is a guarantee to reducing abuse of power by any sector while approving or rejecting the rights proposed by gram sabhas.

 The Act is a mixed bag. While a number of provisions will lead to better conservation and enhanced livelihood security in certain situations, other provisions have a strong potential for damage to forests, wildlife & protected areas and increased livelihood insecurity. The final decision lay with the apex court.

Devina Awasthi- Unison School of Law. Dehradun 4th year

Smith Chandra- Unison school of Law Dehradun 5th year