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Impossible deadline for the Forest Rights Act

By Ashish Kothari

The December 31 deadline of the tribal affairs ministry for full implementation of the Forest Rights Act is absurd. How can implementation of such a complex Act be rushed through when issues involving processing of claims, recent encroachments, and the Act’s relationship with existing forest and wildlife laws have not yet been thought through?

Chief ministers of all states, along with their state ministers of tribal affairs and forests, met between November 4-6, 2009, to discuss implementation of the Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act. The prime minister was expected to urge states to expedite implementation as a means of securing the future of tens of millions of forest-dwellers.  

Meanwhile, the ministry of tribal affairs has set a deadline of December 31, 2009, for full implementation of the Act.  

On the face of it, this seems like welcome pressure from the ministry to get the states moving. But in reality, sticking to this deadline will only show lack of seriousness about meeting the objectives of the Act.  

Enacted in 2006, and known by its shorter name -- the Forest Rights Act (FRA) -- this law underwent a protracted process of formulating rules and only came into operation in January 2008. With a December 2009 deadline, the FRA will have been given a short span of two years for full implementation. This is thoroughly unrealistic in a country where laws can take decades to reach any level of satisfactory implementation, and especially given the complex nature of the FRA.  

Tens of millions of people depend for their survival, livelihood and culture on forests. Most of them are part of traditional communities whose links with forests go back generations, if not centuries. As such, they have a legitimate claim to use and conservation of forests, and should have been provided clear rights and responsibilities decades ago. The Indian state’s inability to do so has resulted in an extremely complex and messy situation. Original inhabitants have been joined by recent settlers, for example in parts of northeast India where refugees and migrants from neighbouring states and countries have occupied large areas of forest land. Many adivasi communities have been alienated from their homelands, dispossessed or displaced by development projects and protected areas; this has intensified with the onset of globalisation as constitutionally protected lands in states like Orissa and Chhattisgarh are opened up for mining and industry. Land records remain unclear, as disputes between forest and revenue departments or between communities and the government drag on. Powerful vested interests have been allowed to occupy lands, often hand-in-glove with the very government agencies meant to protect such lands, or through political coercion under which honest officials trying to resist have been victimised. Cultural and economic changes in many traditional communities have weakened their traditional conservation ethos, or driven them to over-exploitation of forest resources in links with national and global markets. And, as a result of all this, forest cover and quality have suffered, with negative impacts on wildlife and forest-dependent communities.  

The FRA is actually an official acknowledgement of the injustices done to forest-dwellers in the past, and of the need to provide them with clear entitlements and responsibilities in order to establish a long-term stake in conservation and sustainable use. These are the stated aims; unfortunately, implementation is as yet far from achieving them.  

This is at least partly due to faults in the FRA itself: the grossly unequal way in which adivasis and non-adivasis have been treated (the former allowed titles for ‘encroachments’ up to 2005; the latter only if prior to 1930); an overly ‘generous’ package to very recent encroachers (providing a stimulus to fresh encroachments); an unhelpful dependence on multiple bureaucratic institutions for the processing of claims (often peopled by the same officials who have long denied people their rights); and an unclear relationship with existing forest and wildlife laws.  

Despite these, however, the FRA has the potential to provide livelihood security to several million households, and also generate a process of forest conservation. Implementation though remains a serious problem, for a number of reasons.  

Most forest-dwelling communities lack ‘evidence’ of occupation and use of forest lands. They do not have a tradition of written records, and both the colonial and post-Independence bureaucracy have been loath to properly record customary rights other than in a few regions. The FRA provides for communities to claim rights using several kinds of evidence, but generating such proof is not easy and there are many instances where even permissible evidence is being ignored by official committees handling the claims. In states like Gujarat, claims are being rejected en masse. In many national parks, sanctuaries and tiger reserves, communities are being told they cannot claim rights! 

The lack of records is complicated by actual recent encroachments by communities and by the land mafia or industrial interests. Sifting such occupations from the more legitimate traditional ones is by no means an easy task. There are reports from Andhra Pradesh of several ineligible (but politically powerful) claimants getting title deeds, or eligible claimants getting more than the maximum of 10 acres, while many marginal adivasis are not getting their due. In Assam, recent encroachments on a massive scale have complicated the ground situation so much that it will require a huge effort, over many years, to sort the problem out.  

One of the most serious lacunae at a national level is the focus of implementation on individual land titles (Section 3 (1) a). This ignores several provisions for community or collective rights (Section 3 (1) b, d, e, h, i, k, amongst others) to use, manage and conserve forests. These are arguably more important for the long-term survival of both forest-dwelling communities and of the forests themselves. According to the ministry of tribal affairs, of a total of 24 lakh claims made till the end of September 2009, less than 30,000 are related to community rights (http://tribal.gov.in/writereaddata/mainlinkFile/File1164.pdf). It is possible that this is an underestimate as some states have not reported on the break-up between individual and community rights. Still, the imbalance is striking. Also serious is the fact that in some states community rights claims have been mostly rejected, though on what grounds remains unclear. For instance, as of the end of September, in Orissa, of 588 such claims made only 56 were accepted; in West Bengal, only 222 of 1,107 claims made were accepted. Interestingly, in many instances (Kerala, Orissa, Gujarat), gram sabhas themselves have rejected a number of community rights claims before forwarding them to the sub-divisional committee. Though a break-up of the kinds of community claims being made is not available for most states, anecdotal information indicates that there are almost no claims for the right to protect and manage forests (Section 3 (1) i), even in areas where communities have a proven record of conservation.  

Some parts of the FRA have not even started being implemented. Claims for rights to development facilities (Section 3(2)), under which communities can ask for schools, health clinics, village roads etc, have not been made in most states. Provisions for declaring critical wildlife habitats (CWH) within protected areas (Section 4(2)), a potentially powerful space to balance stronger conservation status against external threats with livelihood needs, have only just begun to be considered. The ministry of environment and forests issued guidelines on these in 2008; several civil society groups under the Future of Conservation in India network organised two national workshops and issued their own guidance to states (http://www.kalpavriksh.org/f1/f1.2/futofcons/consandlivefutofcons). Still, not a single CWH has been declared so far.  

And no one is even talking of implementing the provision for community rights to traditional knowledge (Section 3 (1) k). Combined with a provision to protect such knowledge, contained in the Biological Diversity Act 2003, this could be developed into an effective means of checking the rampant biopiracy by which traditional knowledge is being stolen and privatised by corporate and government entities.  

Some states like Andhra Pradesh and Maharashtra have done commendably well in spreading awareness about and facilitating implementation. Others are seriously lagging behind. I was recently in Alwar district in Rajasthan, and in Tehri Garhwal in Uttarakhand; in both, villagers had only a vague notion of what the FRA was. No government agency or NGO had facilitated an understanding of the law, and the administration had not initiated the claims process. In Chhattisgarh, a state-sponsored civil war (Salwa Judum), in the name of tackling Naxalism has denied any chance for thousands of adivasi families to make claims. The ministry of tribal affairs claims that many states are not even sending in information regarding the status of implementation.  

The seriousness with which a government takes a law it has enacted can be gauged from how much infrastructure it puts in for its implementation. At a recent meeting of the Future of Conservation Network, a ministry of tribal affairs representative stated frankly that there were only one or two officials to support and monitor implementation for the country as a whole. It is hardly surprising that states do not give the FRA the importance it deserves.  

Finally, very little thought seems to have been given to the post-claims process. Once communities get the right to access and manage forests, what will be their relationship with the forest department that will, presumably, continue to have some jurisdiction? What will be the relative weightage of the multiple laws that will concurrently apply in such areas: the FRA, the Wild Life Act, the Forest Act, the Forest Conservation Act? What kind of institutional arrangements for community-based or collaborative management would best work in diverse local situations such that the relative strengths of local people and of government agencies can be synergised?   

It takes years for the intended beneficiaries of any law of this nature to understand and make use of it; for the relevant government officials to orient themselves to it; and for synergies to be built between it and other laws. Absolutely essential are a whole range of on-ground processes involving gram sabhas and relevant government agencies, with or without facilitation by civil society groups, using traditional and modern knowledge and tools to weed out misuse and optimise long-term management of forests. But such processes are extremely time-consuming; they are not two-year projects. To dictate that the FRA be fully implemented by December 2009 is foolhardy. It is hoped that the above and other issues came up at the November meeting. There needs to be a full discussion on how to gear the state machinery and empower communities for comprehensive implementation that is appropriately paced, learning from past mistakes, and providing time for feedback, while at the same time not being never-ending. There is also an urgent need to initiate a process of amendments regarding provisions that are of serious social and environmental concern.  

The FRA process must not be aborted at this stage by any misplaced notion of expedited completion. 

Infochange News & Features, November 2009