Forest Rights Act 2006 – Misplaced EuphoriaT
he Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed almost unanimously by the Lok Sabha as well as the Rajya Sabha earlier this month. This legislation, aimed at giving ownership rights over forestland to traditional forest dwellers, was vehemently opposed by the wildlife conservation lobby and the Ministry of Environment and Forests who termed it as the ideal recipe to ensure the destruction of India’s forests and wildlife by “legalising encroachments”. The forest department, together with the timber mafia, too had been blocking it, since it would severely erode their stranglehold over forest products. Corporates are also against it, since the illegal status of tribals and other forest dwellers makes the process of eviction and land acquisition for industrial projects easier.
Therefore, the fact that the Act has finally been passed is at least a significant admission of the historic injustice done to forest dwellers. By seeing forest dwellers as encroachers on land they have been occupying for years, the state has been denying their right to a livelihood for decades. However, a careful analysis of the Bill that has been passed reveals that in reality, the Bill assures pitifully little – there are too many loopholes for it to be truly effective.
History of the Act
The initial draft of the Act, tabled in 2005, while broadly providing for land rights for forest dwellers, was extremely problematic. It set the cut-off date for recognising land ownership as 1980 – the year when the Forest Conservation Act was passed. This meant that people who occupied forest land post-1980 would not come under the purview of the legislation – a significant number, considering that victims of large-scale land acquisition and evictions since 1980 often took refuge in forests. Also, the original legislation was applicable only to tribals – and not to non-tribal forest dwellers, who too did not have rights over land they had lived on for years. The land ceiling was set at 2.5 hectares (ha) for each settler family.
The JPC 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 JPC report subsequently suggested certain crucial changes – 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 - tribals as well as non-tribals.
Significantly, the JPC came up with some important recommendations on the procedure of settling land rights. According to the JPC recommendations, the gram sabha was to have a central role in all decisions relating to forest dwellers – a recommendation that was aimed at countering the almost infinite power that the forest department has over forest dwellers. The gram sabha was to be vested with the responsibility and authority for settling land rights of forest dwellers. The gram sabha could veto the decision of first tier of appeal – the sub-divisional committee. However, the decision of the second tier of appeal – the district committee – would be final.
The gram sabha was also empowered to make decisions regarding whether or not settlers were adversely affecting forests, wildlife and biodiversity. The JPC also suggested that in the case of land that had been allotted to forest dwellers, provisions similar to the Panchayat Extension to the Scheduled Areas Act (PESA) be applicable – in other words, gram sabha approval for any diversion of forestland for non-forest activity, and for any form of land acquisition, would be mandatory. In addition, the JPC also recommended that the Tribal Bill define core forest areas unambiguously, from where people could be evicted and resettled. Overall, the recommendations were at least a step towards loosening the vice-like grip forest departments and corporates aided by state governments have over forest dwellers. After the JPC report was tabled, a Group of Ministers (GoM) headed by Pranab Mukherjee looked into the recommendations and the final draft was prepared.
Crucial Loopholes in Current Act
The JPC recommendations were widely seen as being extremely important in lending some teeth to the Act. There has been a lot of talk on how the UPA government, supposedly due to pressure from the Left as well as from various tribal groups – has accepted most of these recommendations. However, the reality is otherwise.
TheForest Rights Act has accepted the cut-off date for consideration of land rights as December 2005, rather than 1980. Also, non-tribal forest dwellers have also been brought under the ambit of the Bill. Now, all those residing in forests for 25 years or more or for three generations prior to 2005 will be eligible to claim land – and the ceiling has been set as 4 hectares for each settler family. However, the Act has defined forest dwelling Scheduled Tribes or other traditional forest dwellers as those who “primarily reside IN the forest”. The fact of the matter is that most “forest dwellers” do not strictly dwell inside the forests, living on forest land – they live on the fringes of forests, but are heavily dependent on the forest land and resources for their livelihood. The Act therefore excludes them – and an estimated 90 per cent of forest dwellers are likely to be kept from availing benefits of the Act.
The Act has also excluded large number of non-tribal forest dwellers from its ambit through constrictive definition. The JPC had recommended various categories of people to be included under this category – communities living on, or adjacent to, forestland for at least three generations, communities forced through government policy to live on, or depend on forestland (for instance communities living in forest villages), communities displaced by development projects, communities evicted from wildlife sanctuaries, reserved forests and national parks, and communities forced to live on, or depend on, forestland due to failure of governments to provide sources of livelihood promised to them. The Act shrinks the scope of this broad definition – and states that non-tribal forest dwellers are only those who have been continuously residing on forestland for 75 years.
Weakened community self-determination
The attempts of the JPC to empower gram sabhas have been thwarted – instead of gram sabhas being in charge of settling land rights, with the forest department being no where in the picture, 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.
Providing rights without the right to exercise them!
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 that 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.
The issue of tribal rights in this country is intrinsically linked with many other issues – land acquisition (the draconian Land Acquisition Act is still very much alive and kicking), and displacement though “development”, tribal struggles for political autonomy, and resistance to state repression of which tribals often bear the worst brunt. Ensuring tribal rights will mean ensuring genuine tribal assertion, tribal participation in decision making - in short changing the parameters of engagement. Unless this is done, no Act can ever be effective.
- Radhika Krishnan