Interpreting FRA to Uphold Justice

by Suranjita Ray

On February 28, 2019, in response to a review petition filed by the governments both at the Centre and in Gujarat, the Supreme Court stayed its controversial order of February 13, 2019— to ensure eviction of nearly one million Adivasis and Other Forest Dwellers from forestlands, whose claims under the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act 2006, have been rejected across several States.1

The Apex Court, in its stay order, has asked the State governments for a detailed report on whether due process was followed by the Gram Sabhas and the authorities under the Forest Rights Act (FRA) before rejecting the claims. The review order makes it clear that there will be no forcible evictions for now (till July 10, 2019 when the matter will be taken up in the Supreme Court). It provides a temporary relief to millions of Adivasis and Other Forest Dwellers whose illegal evictions would have deprived them of their livelihood resources, home, land and justice. However, what is of larger concern is the narrow interpretation of the Act itself and the under-standing of conservation of forests by the wild life rights-based groups/movements/organi-sations which makes eviction easier, defeating the very purpose of the Act.

We find that forests have become sites of contestation and conflict between the nature conservationist/environmentalist and the Adivasis and forest dwellers, and many a time between the latter and the Forest Department/State. While the petitioner’s concern regarding demarcation of critical wildlife habitats is important and needs to be addressed, holding the implemen-tation of the FRA as responsible for encroach-ments, deforestation and fragmentation of forest land, needs to be contested.

Interpreting the FRA

Despite the fact that section 4(5) of the FRA 2006specifically prohibits eviction until the process of implementation is fully complete in an area and Rule 13 of the Act spells out a wide range of evidence to be considered by the Gram Sabha in determining forest rights which include oral statements by village elders and land improve-ment measures either taken individually or collectively by the communities such as levelling, bunds, check dams and construction of huts, the narratives by the villagers suggest that the predominant reason for the rejection of claims is the lack of sufficient evidence and rejection of oral history. In fact, the de facto veto power of the Forest Department in approving claims often acknowledges the documentary evidence of its records only as acceptable evidence. All the other evidences submitted by the claimants are rejected.

Therefore rejection of claims are far more than giving the title deed as settlement of claims. Till November 30, 2018 in an approximate claim of 42.24 lakhs, both individual and community, around 18.94 lakh claims have been given title deeds, and around 19.39 lakh claims have been rejected. (Ministry of Tribal Affairs)

Most of the claims are rejected either on the ground that there is no proof that three generations of Other Traditional Forest Dwellers have been staying in the forest land or due to the unavailability of satellite map showing cultivation attached to the claim and lack of any court-imposed penalty for cultivating forest land. The Forest Departments insist necessarily on the evidence of caste certificates which are not issued to most claimants.

The Gujarat High Court, in its judgment of 2013 on a writ petition filed in 2011 by Action Research for Community and Health Develop-ment, stated that a demand of convincing and cogent evidence to the satisfaction of the authorities in regard to the rights of Adivasis and forest dwellers, would frustrate the very purpose of the Act for which it was enacted. It further stated that it is the primary duty of the Court to adopt a constructive approach in interpreting the Act to achieve its purpose. Any interpretation that defeats the purpose of the Act is therefore not justifiable.

In 2014, the Virginius Xaxa Committee on socio-economic, health and educational status of tribal communities in India noted that the gram sabhas were rejecting claims of forest dwellers without giving reasons and were not communicating the rejections to the claimants. It also noted that the right to appeal to the highest authority was neither explained nor was its exercise facilitated.The villagers in many cases are not even aware of the existence of such a law. Hence, the provision, which gives the claimant 90 days to appeal against the wrongful rejection before SDLC (Sub-Divisional Level Committee) or DLC (District Level Committee), as the case may be, was never implemented in most cases of rejection. There was no re-examination of such cases. But, without waiting for a decision on review or appeal, and most often without allowing time for filing an appeal, the forest authorities in several States evict people whose claims under the FRA are rejected.

In Gujarat and Maharashtra claims have been rejected due to the lack of satellite imagery, despite the guidelines by the Ministry of Tribal Affairs (July 27, 2015) that geo-referencing for assessment of potential areas should use satellite imagery as supplementary evidence, and should examine and re-examine the additional evidences. Over half of individual rights and a third of community rights claims were denied to the Adivasi communities in Chhattisgarh, where they comprise a third of the population. In Odisha, almost 35 per cent of the FRA claims have been rejected due to lack of sufficient evidence. (April 2017)

Though most of the claims under the FRA are reported from areas where civil society organisations are active and facilitate people to negotiate the legal and bureaucratic hurdles, there is no data available on the status of the appeal process or the number of appeals filed.The report by the Comptroller and Auditor General of India (CAG) on Odisha states that though instructions were issued (August 2015) to review and treat the rejected claims as suo motu appeals at the next higher level and dispose of the same by giving each claimant an oppor-tunity of being heard, no such review was conducted as of September 2016. (State Scheduled Tribes and Scheduled Caste Develop-ment, November 2016) Keeping in mind the high rate of rejection of claims, the reports of the National Committee on the FRA submitted by N.C. Saxena, the Joint Committee under the Ministry of Environment and Forests and the Ministry of Tribal Affairs comprising of other stakeholders, and the guidelines of the Ministry of Tribal Affairs which is the nodal Ministry for implementation of the FRA, appealed to the States for ‘the need to have a re-look into the cases of doubtful rejections so that any rightful claim does not get denied, due to the wrong interpretation of the FRA’s provisions’. (Union Ministry of Tribal Affairs, September 12, 2014, and April 10, 2015) The Ministry of Tribal Affairs stated that the process followed in case of rejection of claims include the communication of reason for rejection to the claimant. (February 5, 2016) In a letter in 2018, the Ministry has also urged the State Forest Departments to abdicate their illegal requirement of evidence from claimants.

While it was important for the Central Government to inform the Supreme Court about the poor implementation of the FRA as the findings of several official and independent reports in the past confirmed that huge numbers of claims have been wrongly rejected, the government chose not to argue for the fourth consecutive time in the Court. Thus it was difficult for the Apex Courtto revisit the concerns of the petitioners from an alternative perspective of the most vulnerable sections of society who have been victims of denial of justice, thereby the Supreme Court directed for eviction of some rejected claimants after they had reached absolute finality despite the fact that lack of evidence cannot be the sole cause of rejection, and rejection of claims cannot be the sole reason for eviction. The eviction order further read that ‘...in case the eviction is not carried out, ...the matter would be viewed seriously by this court.’ It had ordered the Forest Survey of India to make a satellite survey and place on record the encroachment positions, both before and after the eviction as far as possible.

The studies, based on surveys such as State of Forest Report of the Forest Survey of India, document that 67,900 hectares of forest cover had been lost in 188 tribal districts primarily due to encroachments by tribals and forest dwellers between 2009-11. (Goenka, 2018: 13) However, a more fundamental question is the need to understand who is an encroacher. The mere rejection of the claim by the state does not make the claimant an encroacher. The narrow approach to understand ‘encroachers’ as those forest dwellers whose claims have been rejected under the FRA reinforces the colonial policy under the principle of ‘eminent domain’ and the Indian Forest Act, 1927, that legitimised the Adivasi and forest-dependent communities as illegal encroachers on the land they were tilling for generations without taking cognisance of their right to forest land.

Several studies find that since the FRA is a hindrance to the corporate interests and their plunder, the State administrations has made all possible efforts to decline that the villagers, having access to forests, were forest dwellers. The Ministry of Environment and Forests, in its circular in October 2014, stated that the FRA would not be applicable to forests less than 75 years old. Without any consultation with tribal communities, a series of legislations have been pushed through by the government such as amendments to the Mines and Minerals (Development and Regulation) Amendment Act, 2015, the Compensatory Afforestation Fund (CAF) Act, 2016, alongside a host of amendments to the FRA. These legislations undermine the rights and protections guaranteed to Adivasis and forest dwellers in the FRA. The role of gram sabhas in protection of forest resources is also ignored in the CAF Act.

Contesting the Binaries

Several people’s rights groups such as the All India Forum of Forest Movements, National Advocacy Council for Development of Indi-genous People, Bhumi Adhikar Andolan, Cam-paign for Survival and Dignity, and National Alliance for People’s Movement argue that degrading and shrinking forest cover is not because of the FRA but because of the mining industries, timber industries, development of tourism industries, wildlife sanctuaries, and biodiversity parks that also disturb the wildlife. The FRA, which came into force to correct the historical injustices done to Adivasis and Other Traditional Forest Dwellers who have been residing in such forests for generations without any record their rights, does not give the forest dwellers the right to cut the trees, divide or destroy the forest. On the contrary, it is conservation of the forests that can only protect their right to livelihood. Civil society organi-sations and action groups, such as the Campaign for Survival and Dignity, Environment Action Group, and Nature Conservation Society argue that it is the local communities who protect and conserve forests, as the resources of their livelihood. Therefore conserving forests is the common objective of both wildlife rights-based groups and forest dwellers whose rights have been recognised by the FRA. It is important not to see the biodiversity conservation and community-based conservation as binaries.

The Campaign for Survival and Dignity appealed that the recent evacuation order be reviewed or modified in accordance with the law.The open letter, jointly issued by several conservation NGOs, movements for democratic forest control and experts in conservation biology, argues that a significant force across the country that has stopped the resource loot is the local communities fighting to protect their natural resources and habitats, often by using the FRA.The campaigns question the Central Government’s collusion with big companies and forest officials against the forest dwellers. 

Over the years, the consequential effect of state policies to tap forest resources for development alienated tribals from the forest land resulting in loss of livelihood resources and severe disruption of their culture, identity, dignity and freedom. Appropriation of forests for development projects such as defence projects, dams, mines, industries, power plants, and roads, deprived the tribals of their customary rights. Lack of clarity in the laws on the customary rights of the tribal people over the natural resources has also seen an increasing violation of such laws.

Since forests remain an integral part of the tribal culture and economy, tribal people and forest dwellers continue to be morally responsible for preserving and sustaining the forests. As a tradition of faith, they worship the forests. Women have always played an important role to save the forests. Drawing insights from the Chipko Movement 1873, women continue to struggle for their rights to forest in several regions of Uttar Pradesh, Uttarakhand, Jhar-khand, Bihar, Odisha, West Bengal, Assam, Tripura, Himanchal Pradesh, Kerala, Karnataka, Maharashtra and Madhya Pradesh. They lead the protests against large hectares of forestland across the country which have been diverted for non-forestry activities. (See also Ray, 2018: 11-13)

The tribal women in Kalahandi district of Odisha have been active in the protests against the exploration of mineral resources and destruction of forests by the Mining Projects. Protests by the villagers, in particular the tribal and Dalit community, in the Thuamul Rampur block brought the work of the Mining Corpo-ration to a halt in 1997. The consultation committee by the local villagers protested land acquisition and forcible evictions by the mining corporations after analysing its impact on the livelihood resources such as land, forests, and water.

The mining project by the Vedanta Alumi-nium Limited and Orissa Mining Corporation that threatened 1660 acres of forest land was withdrawn only after long protests by the tribals and forest dwellers to save their rights to forest. The Supreme Court’s judgement in 2013 is a historic step as it affirmed the decision- making powers of the smaller units of local governance such as village councils when the Gram/Palli Sabhas in several villages of Rayagada and Kalahandi districts unanimously passed a resolution opposing the proposed $ 1.7 billion mining project by the Vedanta Alumi-nium Limited (VAL) and Orissa Mining Corpo-ration in Niyamgiri Hill as it was an infringe-ment of the religious, customary, community and individual rights of tribal people and forest-dwellers.

Women led the anti-POSCO movement against land acquisition by POSCO, a South Korean Steel Company, as hundreds of acres of betel vineyards were destroyed by force and the fruit-bearing trees were cut in Jagatsinghpur district of Odisha. The continuous struggle by villagers for 12 years compelled POSCO to officially withdraw its project in March 2017.

Studies based on ethnographic field survey enable us to understand that the tribal women have a long tradition of conserving forests. Ever since the Forest Departments have diverted large acres of forest land for plantations like teak, eucalyptus, bamboo, which make forests a good source of income for the government, the traditional crops no longer grow in the forest land. Women protest compensatory afforestation through plantations of trees, particularly monocultures, which can never replace the diverse, complex flora and fauna which is destroyed in forests. Women in the Bhil community of Rajasthan actively participate in conservation and management of the forest. In Garhwal region, women in many villages have initiated innovative programmes like Mahila Samakhya, all women Van Panchayats and informal committees. (See also Ray 2018 b) Women from the traditional forest communities across States play an important role in All India Union of Forest Working People, a union of adivasis and Dalit communities, to collectively protect forests from poachers and encroachers and protect community forest governance. They have formed Women Forest Rights Action Committee to protect community rights over forest land and its produce. (Ibid.)

Around 100,000 hectares of forestland are protected by 850 villages across the Nayagarh district of Odisha. Women have taken the initiative to protect their forest rights by forming a Centre for Forest Rights Information to generate awareness about the FRA and community rights over forests in Kaptapally and Ranpur villages. The tribal women of more than 30 villages in Maniguda and Bissam Cuttack blocks in Rayagada district of Odisha formed informal groups to replant the traditional crops and conserve the forests to meet their diverse food habits. They argue that dispossession of the traditional crops has resulted in increasing malnutrition and hunger of their children. They continued to protest against the plantations of eucalyptus by the Forest Department till it finally agreed to plant saplings of indigenous trees in 2015-16.

The Adivasis and forest dwelling communities believe that conservation, rejuvenation and regeneration of the forests alongside protection of rights to forests, would secure the future of their children. They have the traditional knowledge to increase the forest cover as forests remain an integral part of the tribal culture and economy. Since forests are an important source of their livelihood, they never pull out the entire root of the plants/tubers. A portion of them is cut leaving the remaining root underneath the soil so that they regrow. In many villages in the forest regions, conservation rules of the forests are set by the Village Councils. Based on the needs of the villagers, the Council permits them to collect dry shrub fuelwood, fodder, food and other forest produce.

Thus, the community rights and environ-mental sustainability are not to be seen in exclusive frameworks. Despite numerous policy documents alongside the FRA which provides scope and historic opportunity of integrating conservation and livelihood rights of the people, the conservation industry continues to dis-believe the coexistence of forests with the Adivasis and forest dwellers. The latter have always conserved energy and sustained the soil fertility and biodiversity for generations. Thus, there is a need to protect the rights of tribal and forest dwelling communities to conserve and regenerate the forest eco-system for a sustainable livelihood.

Reinstating Justice

We find that the diversion of forests for non-forest activities has reduced, and community rights of the villagers to manage, protect, conserve, and regenerate forest for sustainable use are protected in the villages where the social activists are active and gram sabhas are playing an important role in deciding the local development plans. The FRA is implemented in its true spirit in States where villagers have asserted their rights and the gram sabhas’ have passed resolutions against tree felling by the forest departments. (See also Ray, 2018a: 14)

Since the B.K. Roy Burman Committee Report, 1982 made it important to integrate the tribal and forest economy, the National Forest Policy, 1988 prioritised the people’s needs and their involvement in protection and management of forests over the commercial gains of the state. The PESA (Panchayat Extension to Scheduled Areas) Act 1996, which prohibits the state to make any law that is not in consonance with the customary law, the social, religious and community practices and traditions, and aims at safeguarding and preserving the traditional rights over community resources (such as land, water and forest) in the Fifth Schedule areas, therefore needs to be strengthened.

The customary rights to forests alongside indigenous knowledge about traditional forestry practices can only be protected when tribal communities participate in the decision-making related to forest governance and forest protection at the local level.This calls for a coherent policy which contests the old binary between conser-vation of forests and the rights of forest dwellers. The implementation of the FRA needs to be strengthened as it gives negotiating power to the Adivasis and other forest-dwelling communities to protect not just their right/entitlement to forests, as resources of their livelihood, but also to protect the symbiotic relationship between them and the forests—the right to protect, regenerate and develop forest, and the need to be integrated in the conservation efforts.

References 

Goenka, Debi (2018), ‘Forest Rights and Wrongs’ in The Indian Express, March 28, page 13.

Ray, Suranjita (2018a) ‘Alienation of Rights to Forests’ in Mainstream, Vol. LVI, No. 30, pages 11-15.

................ (2018b): ‘Women and Forest Rights’ in Women’s Watch, National Federation of Indian Women, April-June, pages 11-13.

Endnote

1. Hearing a petition by Wildlife First, a non-govern-mental organisation, and retired forest officials who blamed the FRA 2006 for deforestation and encroachment on forest lands, the Bench of Justices Arun Mishra, Navin Sinha and Indira Banerjee, in its order, directed the Chief Secretaries of several States such as Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, Tamil Nadu, Telengana, Tripura, Uttarakhand, Uttar Pradesh and West Bengal to evacuate the tribals and forest dwellers whose rejections have “attained finality”. The evacuation was to be done before the next hearing of the Supreme Court on the case scheduled on July 27, 2019. The States were also directed to explain before court the reasons for not evicting the rejected claimants.

Suranjita Ray teaches Political Science at Daulat Ram College, University of Delhi. She can be contacted at suranjitaray_66[at]yahoo.co.in