This article is written by Dhawal Srivastava, a student currently pursuing B.A. LLB. (Hons.) from the Rajiv Gandhi National University of Law. This is a comprehensive article which discusses the essence and provisions of the Forest Right Act or The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, also known as the Forest Rights Act, the Tribal Rights Act, the Tribal Bill and the Tribal Land Act, is pivotal legislation that governs and provisions for the legal rights of the forest-residing communities, particularly the indigenous Adivasi tribal community, over the territory and natural resources that they have been dispossessed of since the times of colonial imperialism of the British in India. Even after the independence of the country, it was observed that the forests were left at the whims and fancies of some government officials who commanded excessive power. Therefore, this act aims for the conservation of both the marginalised people and the forests they live in.
Why is this law necessary?
During the British Raj, rampant exploitation of the forests and its resources was executed by the imperialists to swell up their revenues and stimulate the economic growth of their country. There was a transition in the nature of the forests from a core of resources for the livelihood of its inhabitants to a State-owned resource used for the sake of meeting the commercial, agricultural and developmental needs. Even the existence of three Indian Forests Act (1865, 1894 and 1927) and certain other state legislations only fuelled the curtailment of the rights of local communities and deprived them of practising their customary, age-old traditions in a fearless, free environment, devoid of any insecurities.
Even in the post-independence era, the situation was not much different either. For a long time, a skewed, colonial definition of ‘forests’ derived from the Indian Forests Act was followed in the legal system. Under the Forest Act, even those territories were declared ‘government forests’ where improper supervision and collection of information regarding its residents, usage of land etc. was conducted. Sometimes, the lands were officiated as government-owned even without recording of data or proper investigation. Till today, almost 60% of India’s national parks have not been able to finish their procedure of enquiry and a resolution of the rights. This revealed a system of unconstitutional acquisition of land in the garb of conservation of forests. For combatting the same, and particularly for upholding the symbiotic relationship of the indigenous and their natural environment, this law was legislated in 2006. The implementation of the law commenced on 1st January 2008.
What are the conditions like in the forest areas?
Due to the persistence of the aforestated conditions and anti-forest laws, the inhabitants of the forests have been put through harassments, evictions and so on, by holding them culpable of encroachment in their lands. The local communities also had to face the bureaucratic brunt. Crimes such as sexual assault, torture, extortion for money, bonded labour and human trafficking were (and to some extent, even today) common. Post the eviction drive which started from the year 2002, more than 3 lakh families, particularly of the indigenous tribal communities, were displaced and left homeless. In many places, several villages in and around forests were destroyed. In a way, there was a legally sanctioned criminalisation of the entire tribal communities which is totally against the spirit and ethos of the Constitution.
What does the Forest Rights Act do?
The main purposes that are meant to be served by this statute are as follows:
- Sanctioning a legal recognition of the rights of the traditional communities living in forested areas since time immemorial who have been kept deprived of their basic fundamental legal rights due to the draconian provisions of the colonial forest acts.
- The Act also aims to shift away from the excess state control of the forests which were kept away from the purview of public discourse and discussion. This democratises and gives a respectful recognition to the tribal identity.
- The aim is also for empowering and encouraging local self-governance amongst the marginalised tribal communities and forest dwellers.
- Conservation of the traditional knowledge and the intellectual property rights related to cultural diversity and biodiversity of the inhabitants of the forests.
- The Act also provides for guidelines for undertaking developmental facilities of the villages in and around forested areas.
- Another important aspect dealt with the Act is the promotion of the vulnerable groups, aiming at alleviating their poverty levels and pro-poor growth.
Who is a forest dweller under this law, and who gets rights?
In order to enjoy the privileges and rights laid down in the Act, it is important to be categorized as a “forest dweller”. There are two important stages for the determination of the definition. The first stage involves conditions which are supposed to be satiated to qualify as a forest dweller. These are as discussed below:
- The person (s) should be inhabiting forests or forest lands.
- The person should be a bonafide dependent on forest, its land and resources for their livelihood.
The second stage involves proving the following:
- Section 2(o) of the Act stipulates that the aforementioned conditions of stage 1 need to be true for seventy-five years, a period of which will deem a person as an Other Traditional Forest Dweller.
- Two further alternatives are enshrined under the Act. These are as follows:
i) Section 2(c) of the Act which provides that the person is a member of the Scheduled Tribe.
ii) Section 4(1) of the Act provides that the person is a resident of an area where they are scheduled.
In the latter case, the person is deemed to be a Forest Dwelling Scheduled Tribe.
What kind of rights do forest dwellers get under this Act?
As per the Scheduled Tribes and the Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, there are three kinds of rights which are embodied. These are discussed below under separate headings.
- According to Section 4(3) of the Act, a date has been affixed for determining whether the rights to land which has not been cultivated before and after 31st December 2005.
- Under Section 3(1)(a) read with Section 4(6), as long as the land that is being cultivated by themselves for their livelihood but whose documents are not available at the claimant’s disposal, a minimum of 4 hectares of land can be claimed.
- As per Section 3(1)(f) and 3(1)(g), if the land of the claimant has been illegally occupied by the Forest Department or is subject to a Forest-Revenue department’s dispute, he or she can still claim those land rights on presentation of a patta or a government lease.
- Section 4(4) of the Act provides for the protection of the land in a way that permits the selling or transfer to anyone except through inheritance.
Rights of Usage
The right of usage and/or collection of the following have been enlisted by the Act :
- Section 3(1)(c) provisions for the rights to use minor, “traditionally” collected products manufactured by forests such as tendu patta, herbs or plants of medicinal benefits. Nonetheless, timber has been left excluded from this list as this would have facilitated rampant deforestation.
- Section 3 also enlists places such as grazing grounds and water bodies which can be used by the forest dwellers.
- Special provision has been laid down in the act for the lands of traditionally nomadic or pastoralist communities which do not follow a culture of settled agriculture and move to different places along with their herds.
Protection and Conservation Rights
- Before the existence of this legal regime, it was only the officers of the forest department that had a legally vested responsibility of protecting the forest. This provided a lot of exemplary powers to these officers who, according to their whims and fancies, were allowed to destroy or pass off land or territory.
- These were all counted as official work and stopping them from dispensing these services was criminalised according to the previous laws.
- After the introduction of the current Forest Rights Act, rights were also provided to the community for protecting and managing the forest.
- Section 3(1)(i) of the Act provisions for right and power for the conservation and protection of the community forests.
- Section 5 of the Act vests rights to different forest-dwelling communities for safeguarding their habitat, wildlife etc. With the presence of constant dangers and risks such as the forest mafia gangs, crony capitalists or industrialists, land grabbers and others, majority of whom act in consonance and after procuring support of the Forest Department.
How are the rights recognized?
Besides laying down an elaborate set of rights and powers to the Scheduled Tribes and other recognised forest dwellers, a lucid, three-step procedure is provided by Section 6 of the Act with regards to who gets these rights and their recognition. These are mentioned as below:
- The role of the entire gram sabha, and not merely the gram panchayat, has been given due importance in the Act. The members of the gram sabha are given the authority to make a recommendation concerning who possess and cultivate the land, the duration of the possession or/and cultivation etc.
- The reason behind providing the responsibility to the gram sabha is the democratic set up of the same, with participation from various members of the community and transparent deliberation.
- However, in the spirit of the democratic institutionalisation of the village legislature or gram sabha, their recommendations are not final and are sent for the screening procedures at two distinct levels: taluka and district levels.
- According to Section 6(6) of the Act, the power of making the final decision has been vested to the district-level committee.
- As far as the composition of the committees is concerned, they consist of six members, out of which three are elected while the remaining three are government officials.
- Section 6(2) stipulates that if at the taluka level, if a person believes a claim to be untrue, appeals to the Committee in pursuance of the same and they end up proving the veracity of the same, rights are denied to the claimant.
- Section 6(4) is an exact replication of the above stated, with the only difference being that this applies to the district level.
- Another important right that is recognised under this Act is that the land which is sanctioned under this law cannot be sold or transferred.
Why is this Act debatable?
One of the major reasons for this Act to be described as contentious is the high rate of rejection of the claims. Critics describe the three-tier committee level scrutiny as rigid and, to some extent, arbitrary. Some naysayers have paralleled the system with bureaucracy and thus tagged it as anti-people.
There exist way too many different views concerning the Forest Rights Act in India. Even at the time of its legislation and subsequent enactment, a proper parliamentary and public consensus was not arrived at. The Act has got major participation and involvement from several NGOs and rights-based groups, activists, environmentalists and other intellectuals. The political dichotomy of the Left (pro-tribal) and the Right (pro-capitalist) have also played a crucial part in the same. There has always been a conflict between the groups supporting tribal rights and those taking a pro-government stance, supporting the Forest Department and Ministry of Environment and Forests. The extension of the rights to humans on forest territories was, and is still, seen as a direct threat to maintaining and protecting the ecosystem, forests and the natural resources.
Despite the contentious and debatable nature of this law, the importance and necessity of the Scheduled Tribes and Other Traditional Forest Dwellers Act (Recognition of Rights) Act, 2006 can not be negated completely. The law assumes even more significant importance when the country is a developing economy and is full-fledged following the path of capitalism, thus making it even more substantial to provide a redressal mechanism for vulnerable and marginalised communities and groups, such as the Adivasis and the other similar tribes, from the necessary evil of development and infrastructural growth while also safeguarding their traditions, heritage and identity that forms an important part of the nation’s cultural diversity as well.
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