Forest-Rights-Act-iastoppers
Mains Article

Forest Rights Act, 2006: Challenges and Suggestions [Mains Article]

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is a result of the protracted struggle by the marginal and tribal communities of India to assert their rights over the forestland over which they were traditionally dependent.
By IT's Mains Articles Team
October 09, 2019

Contents

  • Introduction
  • What is Forest Rights Act, 2006?
  • Objective of FRA act 2006
  • Types of rights under this act
  • Different Authorities Created Under FRA act
  • Background
  • Why the Forest Right Act was enacted?
  • Eligibility under this act
  • Challenges in Implementing FRA act 2006
  • Why this act is debated often?
  • Disagreement of Forest Department on FRA act
  • Does FRA act implemented as it was intended?
  • Efforts done to amend Indian Forest Act (IFA), 1927
  • Rejections of the claim as forest-dwellers
  • Newly amendments to Indian Forest Act (IFA), 1927
  • Key features of newly proposed amendments
  • Criticism of newly proposed amendments
  • What are Fifth Schedule Areas?
  • Suggestions
  • Key Facts

Forest Rights Act, 2006: Challenges and Suggestions

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Introduction:

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is a result of the protracted struggle by the marginal and tribal communities of India to assert their rights over the forestland over which they were traditionally dependent.

What is Forest Rights Act, 2006?

forest-rights-act-2006

  • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act (or the Forest Rights Act or FRA) was enacted in 2006 and came into force in 2008.
  • The Act aims at addressing the historic injustice done to the forest dwellers by recognising forest land, resources, and resource management and conservation rights of the forest dwelling communities.
  • FRA not only confers individuals’ title to habitat, but also aims to protect their tradition and culture by recognising their collective ownership over a larger landscape within or outside their traditional village territories.
  • The Act provides chiefly for two kinds of rights to tribals and other forest dwellers.
  1. Individual rights over the dwelling and cultivation lands under their occupation.
  2. The community tenure/ rights over ‘community forest resources’ on common forest land within the traditional and customary boundaries of the village.
  • However, the implementation of the Act in general and especially in Protected Areas (PAs) has been negligible.

Objective of FRA act 2006:

  • To empower and strengthen the local self-governance.
  • To address the livelihood security of the people, leading to poverty alleviation and pro poor growth.
  • To address the issues of Conservation and management of the Natural Resources and conservation governance of India.
  • To Protect customary rights of the forest communities.
  • To Provide for basic developmental facilities for the forest villages.
  • To Protect traditional knowledge and intellectual property relating to biodiversity and cultural diversity.

Types of rights under this act:

  • Community Rights or rights over common property resources of the communities in addition to their individual rights
  • Rights in and over disputed land Rights of settlement and conversion of all forest villages, old habitation and un-surveyed villages
  • Right to protect any community forest resource which the communities have been traditionally protecting for sustainable use
  • Right to intellectual property related to biodiversity and cultural diversity
  • Rights of displaced communities
  • Rights over developmental activities

Different Authorities Created Under FRA act:

  • Gram Sabha
  • Forest Rights Committee
  • Sub Divisional Level committee
  • District Level Committee
  • State Level Monitoring Committee

Background:

Snapshot of History of centralized control of forests in India:

  • Indian Forest Act of 1865: Empowered the colonial government to declare any forest land as government forest.
  • Indian Forest Act of 1878: Classified forests into ‘protected forests’, ‘reserved forests’ and village forests’.
  • The National Forest Policy of 1894: 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: Permits compulsory acquisition of land for a ‘public purpose’.
  • Indian Forest Act, 1927: replaced the earlier 1878 Act with the aim of consolidating the law relating to forests, transit of forest produce and duty leviable on timber and other forest produce.
  • The Government of India Act 1935: Consolidated the power of the state on forests so as to meet the requirements of the British industry, military and commerce.
  • National Forest Policy of 1952: Converted certain concessions enjoyed by tribals for long by withdrawing the release of forest land for cultivation, controlling free grazing, encouraging tribals to do away with the practice of shifting cultivation.
  • National Commission on Agriculture (NCA) 1976: Recommended that forests be managed efficiently for commercial purposes, though the it became silent about the traditional rights of tribals.
  • 42nd Amendment of the Indian Constitution: The Government of India deleted forests from the State list and entered it under the concurrent list in 1976.
  • Wildlife (Protection) Act 1972 and the Forest (Conservation) Act 1980: Identified environmental protection and recognition of the rights of the tribal communities as mutually incompatible objectives.
  • The National Forest Policy 1988: Focuses on environmental stability through the preservation of forests by replacing contractors by tribal co-operatives, gave concession to ethnic minorities and provided suitable alternatives for shifting cultivators.

Why the Forest Right Act was enacted?

India's-forests

  • India’s forests are governed by two main laws, the Indian Forest Act, 1927 and the Wild Life (Protection) Act, 1972.
  • Procedure for settlement of rights was provided under the Indian Forest Act, 1927 which were hardly followed resulting in insecurities of tribal and forest-dwelling communities.
  • Under the Indian Forest Act, areas were often declared to be government forests without noticing any relationship between tribal and land such as who lived in these areas, what land they were using etc.
  • Under these laws, the rights of people living in the area to be declared as a forest area are to be settled by a forest settlement officer.
  • This requires an officer to enquire into the claims of people to land, minor forest produce, etc., and in the case of claims found to be valid, to allow them to continue or to extinguish them by paying compensation.
  • It is found that in many areas this process either did not take place at all or took place in a highly faulty manner. Those whose rights are not recorded during the settlement process are susceptible to eviction at any time.
  • Hence Forest Rights Act, 2006 was enacted to protect the marginalised socio-economic class of citizens and balance the right to environment with their right to life and livelihood.

Eligibility under this act:

There are two ways to be eligible under this act

  • Primarily residing in forests or forest lands.
  • Depends on forests and forest land for a livelihood.
  • Above conditions should have to be true for 75 years.

OR

  • Should be a member of a Scheduled Tribe
  • Resident of an area where they are Scheduled

Challenges in Implementing FRA act 2006:

Lack of Political will:

  • There is no political will to implement this act as assertion of power of forest dwelling communities is in direct conflict with the agenda of ease of doing business. It also challenges the power and authority of the Forest Department.
  • In recent times, new policies and orders such as the Compensatory Afforestation Act, draft forest policy, village forest rules have provisions that are diluting or contradicting the FRA.

Systemic issues

  • There is lack of coordination between the tribal, revenue and forest department on implementation of the Act.
  • Moreover, there is lack of recognition of Community Forest Resource rights. There is a huge resistance from the forest department to recognize CFR Rights and sharing of power with Gram Sabha for conservation and management of forest resources.
  • The Government approach towards forest is clearly reflected in the recently developed draft forest policy which is heavily tilted towards forest commercialisation, PPP model and forest dwellers have no place in decision making.

Functional/implementation barriers:

  • A large number of claims are being rejected; pending or limited rights are recognised. The area recognized has been drastically reduced from the area, which has been claimed without any proper reasons.
  • Ministry of Tribal Affairs has written to State Governments that in case of rejection, reasons have to be communicated and chances of appeal to be given to claimants, which is hardly happening.

Why this act is debated often?

Number of rejection rate of claim under the FRA act

  • One reason the Act receives so much attention is due to the rejection rate of the claims. Approvals and rejections are the result of decisions taken by the three-tier scrutiny committees constituted at the levels of village, taluk and district level.

Different Views

  • A consensus was never arrived between the different stakeholders during FRA, 2006 enactment.
  • The different views were mainly of the rights-based activists and NGOs arguing for the rights of the tribals against the views of conservationists whose voice was in tune with that of the Ministry of Environment and Forests, wildlife activists and like-minded NGOs.
  • The opposition was mainly on grounds of the inevitable destruction of forest cover and wildlife if the recognition of rights were extended on forest lands.

Disagreement of Forest Department on FRA act:

  • The Indian Forest Department, an important stakeholder, is not in agreement in principle on major issues of FRA act.
  • The Forest Department perceives the cut-off date to make land claims, which was extended to December 13, 2005, as a violation of Forest Conservation Act (FCA), 1980 despite a clear clause in the FRA about superseding all existing laws.
  • The Forest Department contends that the initial draft of the legislation had a provision of 2.5 hectares as the maximum forest land that can be claimed for a nuclear family, however, the four hectares was finally declared in the Act.
  • Moreover, Forest Department sees inclusion of wildlife sanctuaries or parks and inclusion of ‘other forest dwellers’ as eligible for claiming the land as late entries into the act lacking legitimacy.

Does FRA act implemented as it was intended?

Following the Act, three scenarios have emerged.

  • Regions within states where the implementation process, including the grant of rights, has been completed happened only in the initial period of enactment of this act.
  • The areas where implementation process has not taken place at all (like pockets of Chhattisgarh, where insurgency is the excuse)
  • The process has been initiated but is not able to reach the final stages of awarding the rights mostly in areas where a majority of the claims: (1) have evidence of occupation of forest land after October 25, 1980; (2) have a demand of more than 2.5 hectares of forest land per nuclear family; (3) were in wildlife sanctuaries or parks; and (4) are made by the ‘other forest dwellers.’

Efforts done to amend Indian Forest Act (IFA), 1927:

  • In 2015, TSR Subramanian Committee suggested changes in India’s forest governance recommending to amend IFA, 1927. Earlier, the M B Shah Commission too suggested amendments in 2010.
  • In, 2016, the Ministry of Environment, Forest and Climate Change constituted a committee compromising principal chief conservators of forests of Madhya Pradesh, Chhattisgarh, Maharashtra and Manipur.
  • However, the Ministry of Tribal Affairs (MoTA) was not included. Moreover, there was no one representing forest dwelling communities. The committee did not even share the draft amendment with the Parliamentary Standing Committee on Science & Technology, Environment & Forests.

Rejections of the claim as forest-dwellers

  • In the past decade, tribal communities across India have filed nearly 4.21 million claims to acquire forest land using FRA.
  • Till now, only 1.74 million of the total 4.21 million land right claims have been approved. Of this, only around 79,000 claims have been recognised under community forest rights.
  • In February 2019, Supreme Court ordered the eviction of 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.
  • However, due to intense opposition, the government put stay on this order in April 2019.

Newly amendments to Indian Forest Act (IFA), 1927:

  • In replacement of the above supreme court order (February 2019), the government proposed to replace IFA,1927.

Newly-amendments-to-Indian-Forest-Act-(IFA),-1927

Key features of newly proposed amendments:

  • The state government will have the power to take away the rights of forest dwellers if it feels it is not in line with ‘conservation of the proposed reserved forest’ by offering some arbitrary amount of cash compensation.
  • It has provisions to override other forest laws, especially the Forest Rights Act (FRA), 2006.
  • It also allows the forest department to use firearms to prevent offences. However, no forest officer can be prosecuted unless the state government approves.
  • It has the provision to punish entire communities by denying access to forests for offences committed by individual members.
  • It has provision to create national and state forest funds aided by private companies.
  • The present IFA is focuses on economic interests to consolidate the transit of forest-produce. However, the proposed IFA focusses on conservation and concerns related to climate change and international commitments.
  • It proposes to allow the government to open any area of forest it deems fit for commercial plantations and also allows it to assign forests to non-state entities, but not on lease.
  • While under FRA, the gram sabhas have the right to collect title claims, the amendment proposes that the authority will rest with the forest department.
  • The forest department can also deem any forestland as degraded or a wasteland and give it to a private party after evicting the forest dwellers.
  • It prescribes punishment for offences in detail—both bailable and non-bailable. The penalty for various offences has been increased from Rs 500 to Rs 5,000- Rs 500,000 and imprisonment has been increased from one month to seven years.

Criticism of newly proposed amendments:

  • The new proposed amendments are criticized as not only colonial, but an amendment that empowers the Centre to declare forests on state lands despite land being a state subject.
  • It clearly seeks to further consolidate the forest departments’ power over forests by acting arbitrarily and subvert the rights of forest-dependent communities in the name of forest protection.
  • It empowers the forest officials to use firearms and cause injury to prevent any violation.
  • The amendment gives the forest officials the power to seize property and sell it, even if the guilt of the accused has not been proved.
  • The forest department will also have the right to impose a cess on forest produce which is in contravention to FRA which says that minor forest produce used by forest dwellers cannot be taxed.
  • The amendment provides the definition of forest without mentioning forest ecosystem. It does not take into account parameters like the density of canopy or the length of trees.
  • The definition of ‘community’ added in the amendment can be interpreted to include someone from outside the area to be a part of the community.
  • It mentions about the creation of national and state forest funds aided by private companies. However, it can fuel timber harvest for commercial markets which is in contrast to the National Forest Policy, 1988 which focus is on ecological and livelihood needs and not on revenue generation.
  • It talks about appointing a forest settlement officer to deal with claims of people’s rights on forestlands. However, there is already a democratic authority under FRA to recognise claims.
  • Village forests and Joint Forest Management Committees (JFMCs), which became irrelevant after FRA, have been restored in new amendments diminishing the role of gram sabhas.
  • It forces the application of IFA in Fifth Schedule Areas. However, only the governor can decide whether a law will apply in these areas or not.

What are Fifth Schedule Areas?

  • The Fifth Schedule deals with administration of scheduled areas where tribal communities are in a majority.
  • Under the Article 244(1) of the Constitution, President can declare an area as Scheduled Area.
  • At present, 10 States namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana have Fifth Schedule Areas.

Suggestions:

  • There is a need for revisiting the act and amending the main clauses that emerged in the last stages of the legislation process leading to an increase in the number of claimants over forest lands.
  • Expedite implementation of the FRA through awareness creation, robust monitoring and better support systems.
  • Improve the record of recognising Community Forest Resource rights and provide support to post-claims management and conservation process for strengthening forest-based livelihoods.
  • Allocate financial resources and full-time staff at the subdivisional and district levels for the implementation of the FRA.
  • Align all legislations and policies governing forest land with the FRA.
  • Provide clarity on the time limit for accepting FRA claims.
  • Technology needs to be utilised to support implementation and make the process more efficient and effective.
  • Land used by the community should not be encroached by the Forest Department in the name of proposed plantation, mining and industrial development.
  • Habitat rights of pre-agricultural tribal communities, popularly known as PVTGs, should be settled through community rights over land.
  • Revenue, forest and tribal departments and panchayats should co-ordinate with each other in implementation of FRA act.
  • Priority should be given to single women Households while settling land through FRA.
  • In reserve, sanctuary and protected forest areas, claims of the rights holders should be settled on equal priority.
  • The conflict of interest between the STs and vested groups should be resolved through settlement of Individual cases (ICs).
  • Completion of recognition of rights of occupants of forest land under FRA should be mandatory before any relocation from the forests.
  • Resource centres should be set up in each state for FRA and further developed at the national Level bridging gaps among different stakeholders.

Key Facts:

  • The Ministry of Tribal Affairs releases monthly reports on the status of implementation of the Act.
  • Forest Rights Act is also known as Community Forest Management (CFM) in Telangana.
  • Today, 14 states follow their own versions of IFA, 1927

 

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