Forest Rights Act Enables State Control of Land and Denies Most Adivasis and Forest Dwellers Land Rights

Over a decade after the landmark Forest Rights Act, 2006 was enacted, a relatively small number of claimants have been able to access the rights it promises. The author identifies limitations built into the legislation and investigates the obstacles that have hampered the provision and recognition of forest rights in three districts of Himachal Pradesh. 

Nearly 23% of India’s landscape comprises of forest area, and 200 million citizens are dependent on forests for their livelihood (UNDP 2012). To formally recognise the rights of individuals and communities, the Government of India enacted the Scheduled Tribes (STs) and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 (commonly known as the Forest Rights Act, 2006 [FRA]). However, over a decade after the landmark act was enacted, few people have been able to access the rights it promised. Indeed, based on a 2018 report by the Ministry of Tribal Affairs (MTA), several states have been slow in recognising and settling the rights under the FRA. Himachal Pradesh is one such state because while residents made 2,223 claims, only 136 were settled as of 30 April 2018 (MTA 2018: 3). To better understand this gap in claims and settlements, I will examine the limitations built into the legislation and investigate the obstacles that have hampered the provision and recognition of forest rights in three districts of Himachal Pradesh. Understanding why there are gaps in implementation is particularly important, given that the Supreme Court in February 2019 asked states to evict people whose claims to forest land have not been settled under the FRA. While the order has since been stayed, tribals and forest dwellers without land rights continue to remain in a precarious position (Rajagopal 2019a).  

Examining the FRA

The act aims to recognise and provide ownership and land-use rights to forest-dwelling STs and other traditional forest dwellers (OTFD) at the individual and community level. It was designed keeping in mind citizens “who have been residing in … forests for generations but whose rights could not be recorded” (MTA 2006: 1). Passed in 2006 by the United Progressive Alliance government, the legislation intended to safeguard marginalised groups and “balance the right to environment with a right to life and livelihood” (Rajagopal 2019). Some hailed the act as a move that would address historical injustice and empower communities with the ability to participate in the management of forest and wildlife conservation. Others labelled the act a form of “eco-suicide,” arguing that it would lead to the destruction of India’s forest ecosystems and environment (Münster and Vishnudas 2012). 

A central function of the FRA is to recognise, settle and vest rights to the forest dwellers through proper examination of the filed claims. To understand the shortcomings of the act, it is important to understand the bureaucratic processes each applicant must follow. An individual or group must submit a claim for the rights of forest land, forest produce or both to the gram sabha. The gram sabha is tasked to consolidate, verify and prepare a map describing the area. It authorises and relies on the Forest Rights Committee (FRC) to investigate the claim(s).[1] The gram sabha considers their findings and draws resolutions that will be shared with the subdivisional committee (SDC). Based on the SDLC’s review of the claim, they will either send their recommendation to the district-level committee (DLC) or send it back to the gram sabha for modifications. A state-level monitoring committee (SLMC), constituted by the state government, is tasked to monitor the process to ensure that it follows the rules framed under the act. 

A cursory reading of the legislation suggests that policymakers attempted to create a robust system of conferring land titles. The legislation requires both the SDLC and DLC to be constituted by six members—three government officials from the tehsil and block level and three “people’s representatives” nominated by the district panchayat.[2] Non-governmental members were included to encourage wider participation and decentralised decision making. However, these two ideals are compromised since government officials are granted the position of chair in both the DLC and SDLC that gives them the final design-making power.[3] Beyond granting executive power to the chairperson, the act is unclear about the weightage governmental and non-governmental members of the committees will hold. Thus, based on the structure of the committee it is likely that the interests of bureaucrats and officials will override those the act is intended to enable with rights. 

Implementation of the FRA  

To better understand the experiential challenges of implementation, I conducted research in Himachal Pradesh, a state with low rates of conferring forest rights. I focused on Kinnaur, Chamba and Sirmour districts because large sections of the population rely on forests. Fifty-eight per cent of Kinnaur is Adivasi, and it is constitutionally declared a tribal district. Twenty-six percent of Chamba is Adivasi, and it has the highest number of Adivasis (1,35,500) among all 12 districts of the state. Sirmour has a Schedule Caste population of about 30%, and most of them are dependent on forests (Directorate of Census Operation 2011).  Between June 2019 and November 2019, I conducted semi-structured interviews with 32 respondents, which included district- and subdivision level government officials, non-official members in the district and state levels committees, and representatives of civil society groups. To complement and contextualise these interviews, I analysed government documents (that include records of decisions made by authorities empowered to vest forest rights).  

Based on the data retrieved from the district office and civil society members/organisations, I found that in 2018, in Sirmour and the Adivasi district of Kinnaur, no individual forest rights claims were approved, while 53 individual forest rights claims were approved in the Chamba district. While no claims for community forest rights were approved in Sirmour, 18 and 17 claims of community forest rights were approved in the districts of Chamba and Kinnaur respectively. Even though information on the number of claims submitted to the SDLC has not been made public, civil society groups estimate that 626, 525 and 56 claims in Chamba, Kinnaur and Sirmour respectively were made. Only a small proportion of the claims that were submitted—about 1% of claims— were recommended to DLCs in Chamba and Kinnaur. Archival and ethnographic evidence suggest that government officials displayed a pattern of “intentional ignorance” in recognising the rights of Adivasis and Other Forest Dwellers. 

While claims under Section 3(1) of the act are often stalled citing vague reasons and insignificant errors, those made under Section 3(2)—which allows the local government to transfer the forest land for construction of schools, road, hydropower projects, and so on—are approved on a far greater scale. Archival evidence shows that committees approve the gram sabha’s decision in claims under Section 3(2), but question the recommendations of the same body for claims under Section 3(1) of the act. [4] Between 2010 and 2019, under Section 3(2), the DLC approved 177 and 25 claims in Kinnaur and Chamba respectively.[4] During the same period, however, under Section 3 (1), the DLC approved only 60 claims in Chamba and none in Kinnaur in the same period.[4] To understand why these claims were rejected, my research focused on the meetings of the DLC and SDLC.

I found that multiple claims were rejected because government officials cited land settlement laws that predate the FRA and asked for documents that are not required under the FRA. In a DLC meeting held on 15 December 2018 in Kinnaur, government officials rejected the 47 IFR claims citing settlements under older acts. They argued that “the rights of the villagers of Lippa has been settled vide settlement process of the Revenue Department in 1984 and Forest Settlement in 1921. Therefore given above, these 47 petitions are not maintainable.”[5] The central government, as well as state governments, have repeatedly asked government officials to expedite the settlement of rights under the act, clarifying that the FRA 2006 supersedes previous acts and customary laws that attempted to recognise the rights of forest dwellers (MTA 2015: 6).[6] However, in instances where the rights of forest dwellers have been recognised under older acts, the two committees have used this recognition to justify dismissing claims under the FRA. In another such incident, the DLC dismissed 11 claims for forest rights in Chamba on 29 December 2018 based on the argument that rights have already been inscribed in the Naksha-Haq-Bartan (Wajib-Ul-Urz).[7]

In the Kinnaur case, the second justification the committee provided was that the applicants had not shown documents to prove that they resided on the land they claimed for three generations. However, tribal communities that submit their ST certificate do not have to fulfil this condition under Section 2(C) of the FRA (MTA 2015: 12). This condition was overlooked again in another committee meeting in May 2018 when the SDLC reviewed 444 claims for forest rights and sent them back to the gram sabha. The SDLC also argued, overlooking the rules under the act, that the SDLC had not proven dependency on the land and that they primarily reside in the forest. Both these conditions will be probed later in this piece. Not only did they demand paperwork and evidence that was not required under the act, but they also made procedural errors. The claims were rejected stating that approval was not taken from the FRC. However, according to the official process, claims are only forwarded to the SDLC after they are approved by the FRC.

An examination of other claims shows the extent to which local bodies are not empowered. Records of five SDLC and DLC meetings (three from Kinnaur and two from Chamba) that took place between 2017 and 2019 reveal that instances of dissent by non-official members have not been recorded. In these meetings, when gram sabhas and the FRCs have made decisions on claims for forest rights under Section 3(1) of the act, they were often found to be non-binding. This is because they were frequently scrutinised by government officials to the extent that their decision became a mere procedural formality. This is accentuated when, in stark contrast, in the cases of diverting forest land for construction of hydropower projects, roads, schools, etc (under Section 3[2]), officials during the course of my research did not reject any of the gram sabha’s decisions. Instead, there was an instance where officials have issued a “no-objection” certificate to divert forest land for a hydropower project under Section 3(2) of the act in Lippa village in Kinnaur district without getting the certificate from the gram sabha of the villages affected by the project.

Bureaucratic Mismanagement

It is discouraging to see that Himachal Pradesh’s legal department, too, has gone against aspects of the FRA. Specifically, in response to a query from the state’s tribal department, the legal department asserted that “the act is available only to those tribes and dwellers who are primarily dependent on the forest lands for their survival.”[8] However, the MRA has clarified that there is no clause in the law “that forest dwellers should be solely or even primarily dependent on the forests for their livelihood, or for disqualifying persons whose family income is derived from a basket of sources” (MTA 2015: 9). It also details that forest rights can enable additional family income, particularly when one or more member has a paid job that requires them to “live in an urban area, while the other family members reside in the village and are sustained through intricate and sustainable relationships with the forests and forest produce” (MTA 2015: 9). This makes it clear that even within governing bodies, there are discrepancies in interpretations of the act that have adversely impacted its implementation. 

Another reason that claims are not processed on time, or at all, is that multiple departments are involved in the process of reviewing and approving the claims at the level of SDLC and DLC. These include the Forest Department, the Tribal Department and the Revenue Department. This can lead to a multiplicity of interpretations (that are often contradictory) and leaves room for arbitrariness and personal bias. A forest official in Kinnaur said that “rights need to be recognised and settled if one goes by the act in toto but being a government official assigned for  governing the forest made me to delay  or reject the claim as it appears to me that it will destroy the wildlife and biodiversity, and I am the sole person to protect this.”  Another official, a subdivisional magistrate in Kinnaur, said that he is the guardian of the state and his sole duty is to protect the natural resources. These interpretations of the act stand in contrast with the goals and clauses in the legislation itself. Moreover, civil society members and local leaders have argued that multiple interpretations reveal the government’s lack of interest in implementing enabling tribals and forest dwellers with forest rights. 

After interviewing local leaders and several members of FRCs, DLCs and SDLCs I found that they had limited information about the act. A DLC member in Chamba subdivision admits that he is unaware about the act and says that he usually signs the committee’s order based on the chairperson’s request. In an interview with local leader Hasan Deen, who belongs to the Gujjar tribe in Chamba, he shared that his community’s main source of livelihood is rearing cattle, for which they are dependent on the forest. However, members of his community have neither been granted individual or community forest rights. He added that he has assisted community people in applying for claims, but applications remain pending with the SDLC. A member of the DLC says that while he is often invited for committee meetings, he does not have ideas about how to expedite the FRA process in Chamba. These responses suggest that community leaders and non-officials members in these committees are not aware of the intricacies of the act. The lack of information about the act among villagers discourages them from contesting or challenging decisions. Many of the people interviewed asked for a cell that helps implement the FRA at the district level.[9] Workshops to spread information about the act and its intricacies were also suggested. 

Ranjit Singh Negi, a retired IAS officer, works on FRA-related issues and argued that while the Bharatiya Janata Party promised to speed up the recognition and resettlement of rights of forest dwellers within a year and won the elections, it has not taken adequate action to fulfil its promise (showing a pamphlet distributed by the Bharatiya Janata Party during the 2017 assembly elections to substantiate his point). He added that the poor implementation of the FRA is not solely because of a delay caused by bureaucrats, but is also because of a lack of political will. He believes that the issue of forest rights must be made a part of mainstream political discourse. If this does not happen, government officials will continue to reject claims based on unsubstantiated grounds, and the FRA will remain a landmark legislation only on paper.  

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