Undoing historical injustice: The role of the Forest Rights Act and the Supreme Court in departing from colonial forest laws

Introduction

• In terms of land tenure security, forest dwellers in India, who own and manage less than 3% of forested land nationwide, are among the worst off in the world.
• Vulnerable to forced eviction at any point, they stand at risk of losing their homes and means of survival with little legal redress.
• The Forest Rights Act of 2006, an attempt to increase their security, recognizes both individual and community land claims and mandates a uniform process for granting legal title.
• By passing the Forest Rights Act, however, India dramatically shifted its forest law away from the colonial framework.
• Greater recognition of forest rights, however, implicates the interests of powerful extractive industries also seeking control over forest land.
• In the Niyamgiri case, the Supreme Court of India defended an indigenous claim against a multinational corporation by tying cultural rights to land.
• This reasoning pushed Indian jurisprudence closer to developing international law on indigenous land rights, particularly that of the Inter-American system, which can offer guidance for building on this precedent.

How the colonial forest law did ‘injustice’ to forest communities?

• Under colonial rule, the British diverted abundant forest to meet their economic needs ir-respective of procedure for settlement of rights provided under the Indian Forest Act, 1927.
• Several Acts and policies such as the 3 Indian Forest Acts of 1865, 1894 and 1927 of Central Government and some state forest Acts curtailed centuries?old, customary?use rights of local communities.
• The forest dwellers faced insecurity of their livelihood and for home also.
  • Their lands were snatched and evacuated.
  • They were forced to do bonded labour and faced exploitation.
  • Their rights were denied and they cultural identities were threatened.
• The British government consistently appropriated forest land that was not privately owned, and protected its ability to use the resources of these areas through a policy of exclusion.
• The government retained the right to evict the inhabitants at any point.
• The act continued after the independence till the National Forest Policy, 1988 came to recognize for the need to associate tribal people in the protection, regeneration and development of forests.
• In the wake of government orders and some of the Supreme Court verdicts a massive protest broke of from 2002 which led in the formation of the forest rights act named as Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
• It was enacted to protect the marginalised socio-economic class of citizens and balance the right to environment with their right to life and livelihood.

How the FRA Act led a radical departure from the colonial legal framework?

The resulting Forest Rights Act of 2006 represents a radical departure from the colonial legal framework that had formed the basis of Indian forest law.

• Recognition: It recognizes not only individual, but also community land rights, along with the right to collect Non-Timber Forest Produce (“NTFP”).
• Standardized procedural requirements: The Act also establishes standardized procedural requirements for land claims recognition and prohibits evictions before the recognition and verification process is complete.
• Expanded legal protection: Finally, it expands legal protections for forest-dwelling communities to not only village forests, but also state forests and even wildlife sanctuaries.

The scale of this legal shift in favor of forest communities far outweighed the political will to implement the law.  Elected officials, however, have been wary of openly challenging the FRA because of the tribal votes at stake – which, in some states, can be a decisive constituency.  As a result, challenges to the Act are more likely to come through the courts than the legislative process.

What are the recent threats to the forest dwellers leading to 'Erosion' of democratic space?

• No legal right to their homes- People living in the forest and areas nearby depend on forest and their resources for the sustenance. Still many of them do not have legal right to their homes, lands or livelihoods. It is the hands of a few government officials who have all power over forests and forest dwellers.
• Forced eviction in the name of conservation-Forest dwellers are vulnerable to forced eviction at any point, stand at risk of losing their homes and means of survival with little legal redress.
• Discriminative laws- The Indian Forest Act, 1927, India’s main forest law, had nothing to do with conservation. It was created to serve the British need for timber.
  • In contrast with the customary rights- The 1927 Act was conceived to override customary rights and forest management systems by declaring forests state property.
• Concentration of power- The vast powers were given in the hands of the officials who did nothing to protect the forest dwellers.
• Un-fare laws-The same model was subsequently built into the Wild Life Protection Act, passed in 1972, with similar consequences. The Act passed in 2006, has also been criticized on several ground.
• Extractive industries- The interests of powerful extractive industries also seeking control over forest land.

What the government is doing?

The central government, state governments, officials and conservationists, from time to time has passed orders and notices for the evacuation of the forest land. The main concern surrounding them is the protection of the forest and biodiversity conservation. These are some of the examples-

• Government guidelines-The Ministry of Environment, Forests and Climate Change issued its own directive demanding that states remove everyone living on forest land without a title.
• Ambiguity over the notices- The many notices which are issued from time to time are vague in language and go against the spirit of the act and the rights of the people.
• Lack of political will to implement-The scale of the legal shift in favor of forest communities far outweighed the political will to implement the law.
• Vote bank- Elected officials have been wary of openly challenging the FRA because of the tribal votes at stake. As a result, challenges to the Act are more likely to come through the courts than the legislative process.
• Control over the management- The state want to have a management control over the forest produce and resources by denying or subverting the rights of the forest people. As this is one of the major part for the revenue of the state.
• Forest diversion- It remains amongst the most serious challenges to conservation in the country today. Most of the, forests are being diverted despite local communities’ opposition and in violation of their free, prior, and informed consent as is required under the Act. 

How is the 2006 Act significant in the light of injustice faced by forest communities?

For the first time Forest Rights Act recognizes and secures-

• Community rights recognition-Community Rights or rights over common property resources of the communities in addition to their individual rights
• Land Rights recognition- Rights in and over disputed land Rights of settlement and conversion of all forest villages, old habitation, un-surveyed villages and other villages in forests into revenue villages
• Conservation of forest-Right to protect, regenerate or conserve or manage any community forest resource which the communities have been traditionally protecting and conserving for sustainable use
• Traditional knowledge rights-Right to intellectual property and traditional knowledge related to biodiversity and cultural diversity
• Displaced communities- Rights of displaced communities are protected under the act.
• Developmental activities-Rights over developmental activities
• Conservation of wildlife- Makes a beginning towards giving communities and the public a voice in forest and wildlife conservation.
• Categories of rights- The rights can be summarised as: Title rights, use rights, Relief and development rights, forest management rights.
• In fact the community forest rights have improved conservation in forest.

Who’s right are recognized and who remained left out?

People who can enjoy the rights are those who are

1. Primarily residing in forests or forest lands
2. Depends on forests and forest land for a livelihood
3. The above conditions have been true for 75 years ( living for three generations), in which case there are an Other Traditional Forest Dweller 
4.  If a member is of from Scheduled Tribe (Forest Dwelling Scheduled Tribe)
5. If a member is residing in the area where they are Scheduled (Forest Dwelling Scheduled Tribe)

How the rights are recognized?

Section 6 of the Act provides a transparent three step procedure for deciding on who gets rights.

• Recommendation: First, the gram sabha makes a recommendation. Its recommendation goes through two stages of screening committees at the
  • taluka
  • district levels
• Finalization of decision: The district level committee makes the final decision. The Committees have six members – three government officers and three elected persons.
• Legal recognition: Finally, land recognised under this Act cannot be sold or transferred.

What are the challenges of the Act?

• Implementation- Implementation of the act remains the biggest challenge.
• Subversion of FRA-As tribals are not a big vote bank in most states, governments find it convenient to subvert FRA.
• Unawareness-Unawareness at the Lower level of forest officials who are supposed to help process forest rights claims is high and majority of the aggrieved population too remains in the dark regarding their rights.
• Misinterpretation- The forest bureaucracy has misinterpreted the FRA as an instrument to regularise encroachment instead of a welfare measure for tribals.
• Right recognition- Certain sections of environmentalist raise the concern that FRA bend more in the favour of individual rights, giving lesser scope for community rights.
• Misuse of Power- There has been misuse of power by the forest bureaucracy, both at the Centre and the state.
• Rough mapsof community and individual claims, which are prepared by Gram Sabha, lack technical knowhow and suffers from educational incapacity.
• Intensive process of documenting communities’ claims under the FRA makes the process difficult for illiterate tribals.
• Lack of education -The judgment is criticized on the basis of being the forest dwellers as poor and illiterate, who live in remote areas, they do not know the appropriate procedure for filing claims.
• Administrative lacunae- The gram sabhas, which initiate the verification of their claims, are low on awareness of how to deal with them.
• The rejection orders are not even communicated to these communities.
• Drawbacks of CAR- The Compensatory Afforestation Rules of 2018 severely undermine the FRA. Compensatory afforestation is slated to play a key role in India’s commitment to installing carbon sinks worth 2.5 to 3 billion tons by 2030.

What is the role of Judiciary in forest conservation?

Supreme Court gave orders regarding the forest conservation on several occasions, some of these judgments were in the favour of forest dwellers and some went to protect the forest and biodiversity over the concerns of the rights of the people.

• Niyamgiricase: The Supreme Court’s major decision on the Forest Rights Act, Orissa Mining Corp., Ltd. V. Ministry of Environment and Forests (“Niyamgiri”) provides some reason for optimism.
  • In this case, the Court upheld the rights of the Dongria Kondh, a forest community, against powerful and deeply entrenched mining interests.
  • Niyamgiri brought Indian Supreme Court jurisprudence more in line with precedent in the Inter-American system, which has consistently defended indigenous land rights by tying the right to property with the right to maintaining a cultural identity.
• Godavarman Thirumulpad case: In N. GodavarmanThirumulpad v. Union of India in 1996, the Supreme Court decided that the FCA applied to “any area recorded as forest in the Government record irrespective of ownership.” This meant that the FCA and its barriers to the recognition of forest rights were applied to anyplace that had trees. The Supreme Court also requested several states to detail steps taken to clear “encroachers” from the forests.
  • These mass evictions shocked the country into action, sparking massive protests in the lead up to the 2004 general election and making forest rights a campaign issue.
• Eviction crisis: In 2019, Supreme Court ordered the eviction of lakhs of the people belonging to the Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) categories across 16 States, whose claim as forest-dwellers has been rejected under the Forest Rights Act.

How the judgments of Supreme Court are going to impact them?

• The Supreme Court decision highlights the consequences of lack of fair and effective implementation of the 2006 Forest Rights Act. Though, in the past Supreme Court has passed judgments which protected the rights of the STs over the capitalistic powers.
• The passage of this judgment regarding the displacement of the forest dwellers has raised concerns over the rights of these people.
• The Supreme Court order is expected to worsen the harassment, imprisonment under forest offences.
• Sexual violence and atrocities that these communities are already facing can become acute.
• The legitimization of the ongoing illegal evictions and relocation of people from protected areas and other forest lands is also a cause of concern.

Conclusion

There is an urgent need for the government of India to respect and implement its own commitments under the international conservation and human rights conventions. It is needed to ensure that these are effectively communicated to and used by all concerned to safeguard the rights of tribal and other traditional forest dwellers, including their rights to conserve, sustainably use, and protect forests.It is also required to call for the rights-based conservation, equity, good governance, and recognition of indigenous peoples’ and local communities’ conservation contributions.