The Genesis, Process, and Implications of the Forest Rights Act, 2006
*Tata Institute of Social Sciences (TISS), Mumbai, firstname.lastname@example.org.
Abstract: The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act, 2006, also known as the Forest Rights Act (FRA), has been in force for the last 13 years. While the evolution and impact of forest tenure rights in Latin America, parts of Africa, Indonesia, and Nepal have been analysed and documented widely, India’s legal experiment to recognise the ownership, use, access, and management rights of forest-dwelling communities relating to forest land is yet to be comprehensively analysed. This article provides an overview of the history, processes, and socio-economic implications of the FRA. Analysis of data on the status of FRA implementation from 2008 to 2020 reveals that its enforcement has been very uneven across the country. The article examines the factors determining the uneven implementation of FRA through case studies from three States. It is based on fieldwork and discussions with key stakeholders involved in the implementation of FRA in Odisha, Maharashtra, and Jharkhand between April 2014 and February 2020.
Keywords: Forests, forest-dwelling community, Forest Rights Act, rights, land, Scheduled Tribes, Odisha, Maharashtra, Jharkhand
Over the last three decades, the customary and traditional rights of forest dwellers over land and forest resources have been increasingly recognised in many parts of the world. Governments in Latin America, Africa, and Asia have introduced legal reforms that privilege community access and ownership of forest land, partly in recognition of the legitimate claims of indigenous and other local communities, and also because of the limitations of state-led forest governance. A report titled “Who Owns the World’s Forests? Forest Tenure and Public Forests in Transition” by Andy White and Alejandra Martin (2002) shows that at least 10 countries enacted new legislation to strengthen indigenous ownership of forest land between 1990 and 2002. The findings of the report suggest that legal rights to approximately 57 per cent of some 380 million hectares of forest land were transferred to, or reserved for, indigenous communities between 1985 and 2000. This shift in ownership of forest land began in Latin America in the late 1970s, gained momentum in Africa in the late 1990s, and spread to Asia in the early 2000s.
In the Asian context, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act (also called the Forest Rights Act), passed by the Government of India in 2006, is considered to be a unique piece of legislation. The Act is unique not only for securing the tenured and traditional rights of indigenous communities over forest land and resources, but also for providing democratic, community-based forest governance. These provisions, combined with the power of the gram sabha (village assembly) to initiate claims over forest rights and to manage customary and traditional forest resources, are significant developments in the history of community forest rights globally and of forest governance in India.
The Forest Rights Act (FRA) has been in force in India for the last 13 years. While the evolution and impact of forest tenure rights in Latin America, parts of Africa, Indonesia, and Nepal have been analysed and documented widely (Bray, Antinori, and Rojo 2004; Wily 2007; Fisher et al. 2018; Kanal and Kandel 2004), India’s legal experiment to recognise the ownership, use, access, and management rights of forest-dwelling communities over forest land is yet to be comprehensively analysed. Scholars have discussed in detail how particular villages have been denied forest rights, and how forest diversion often takes place without compensation being given to local people for their right to forest land. However, there has been at best only perfunctory discussion of the inadequate recognition of rights and the selective recognition of individual forest rights but not community rights by state agencies. While the FRA has been in force, such discussions have been narrowly confined to specific claims and forest areas. There has been almost no analysis of why the FRA has been implemented unevenly (or not at all in some regions), or of the socio-economic impact of recognised claims on forest dwellers. This article seeks to provide a comprehensive overview of the history, processes, and implications of the FRA.
The findings presented here are based on fieldwork and discussions with key stakeholders involved in the implementation of FRA in three Indian States – Odisha, Maharashtra, and Jharkhand – between April 2014 and February 2020. The primary sources include a rapid assessment study of the major issues and challenges involved in the FRA implementation process in 32 villages (11 villages from Odisha, 10 villages from Maharashtra, and 11 villages from Jharkhand). We conducted interviews and focus group discussions to obtain information from gram sabha members in the study villages. We also conducted interviews with stakeholders to obtain information from State- and district-level officers dealing with the implementation of the FRA. These interviews sought to understand their roles and the challenges at the grassroots level. The interviews were based on structured questionnaires and checklists.
The Genesis of the Forest Rights Act: A Historical Perspective
Forests constitute 21.5 per cent of the total geographical area of India (GoI 2017). It is well established that the socio-economic, cultural, and material interests of people living close to or within a forest are inextricably linked to the forest’s ecosystem. According to a report of the Ministry of Environment and Forests (MoEF), there are around 173,000 villages located in and around forests in India (GoI 2006); these support between 275 million and 350 million people (World Bank 2005; MoEF 2009). These forest dwellers benefit significantly from the use of a variety of forest resources, which they use for food, fodder, agriculture, and housing, and from the collection of a number of profitable minor forest products. Various regulations control forest-dependent people’s right to access and use of forest land and resources.
The history of rules and regulations that prohibit forest dwellers from gaining access to and using forests goes back to the nineteenth century. Before the advent of British rule, forest dwellers in many parts of India used and managed forest land and resources according to customary norms and belief systems (Tucker 2012). However, under colonial rule, these community-controlled resource management systems were dismantled, and new rules and regulations were framed to determine people’s rights over forest land and resources.
A new regime was ushered in with the enactment of the Indian Forest Act of 1865, which asserted the colonial regime’s exclusive power to regulate forests and pastures. This Act was later repealed, and a more authoritative legislation was enacted in 1878 under the same name. Under the 1878 Act, forests were, for the first time, legally categorised into reserve forests, protected forests, and village forests. The provisions of the Indian Forest Act of 1878 gave power to the colonial authorities to identify and demarcate valuable tracts of forest land that they needed, especially for the development of railways, while retaining the flexibility to revise their policy from time to time regarding the remaining extent of forest land (Guha 1983). The jurisdiction of the 1878 Act spanned all three types of forests and gave the Revenue and Forest Departments control over all forest and grazing lands. This Act was superseded by the Indian Forest Act of 1927, which is still in force.
The Indian Forest Act, 1927 retains the earlier categorisation of forests into reserved, protected, and village forests. It further allowed the Forest Department to declare any forest land or wasteland as reserved forest land and prohibit people’s access to these reserved forests without prior approval of the Forest Department. It imposed similar conditions in protected forests and village forests. The legislation ensured the provision of material for development of the railways and expanding markets for British industrial products (Guha 1983). The Indian Forest Act of 1927 also enabled the colonial authorities to reserve forest areas for non-forest purposes, including agricultural activities. Deforestation became more systematic and extensive in order to promote the cultivation of commercial crops like jute, sugar, wheat, and cotton. This deforestation and the increasing prohibition of access to forest resources led to the deprivation of thousands of forest dwellers dependent on forests for their subsistence. Scheduled Tribe groups protested in many parts of British India, but the rulers paid no heed to protecting and settling their rights.
The colonial forest laws were adopted in post-Independence India’s forest legislation. There was no departure from colonial forest policy, and in fact, independent India reinforced the principles of centralisation and exclusion, and the extraction of forest resources as part of its nation-building programmes. For example, the National Forest Policy of 1952 made no mention of regularising the rights of forest dwellers; rather, it emphasised production-forestry. It gave priority to ensuring a sustained supply of timber and other forest produce to meet the requirements of defence, communications, and industry.1
In the first two decades after Independence, India practised a highly centralised forest governance regime that did not take into account the rights of forest-dwelling communities. In addition, wildlife conservation groups lobbied to bring in the Wild Life (Protection) Act in 1972, which was an attempt to suggest that the coexistence of wildlife and forest dwellers was not possible.
The eviction of forest dwellers from their lands provoked a series of movements of Scheduled Tribes and farmers across India in the subsequent decades. Politically, too, there was a major shift – from a one-party regime to a coalition regime and from “command” politics to “demand” politics – in the late 1980s. The changing political culture and increasing pressure from protests led the state to rethink its forest policy. It began with the publication of the 29th Report of the National Commission for Scheduled Castes and Scheduled Tribes, 1989, which recommended a framework to address the rights of Scheduled Tribes over forest land and settle disputed claims across India. This resulted in the MoEF issuing six circulars on September 18, 1990. These provided guidelines for the regularisation of pre-1980 claims that State government orders sought to implement (Asher and Agarwal 2007). Other attempts to uphold the rights of forest dwellers included the framing of the National Forest Policy of 1988, which, for the first time, recognised that the life of Scheduled Tribes and other poor persons living within and near forests revolves around forests, and that their rights and concessions were to be fully protected. Their domestic requirements of fuelwood, fodder, minor forest produce, and timber for construction were to be the first charge on forest produce. These and substitute materials had to be made available through conveniently located depots at reasonable prices (GoI 1988).
Similarly, the MoEF’s circular on joint forest management (JFM), dated June 1, 1990, emphasised the need to work out means to give village communities living close to forest land usufruct benefits to ensure their participation in the afforestation programme. The most important statutory Act among these was the Panchayats (Extension to Scheduled Areas) Act, 1996, which empowered Scheduled Tribes to determine the use and management of common property resources in Fifth Schedule areas.
However, the concerned ministries did not take these attempts to address the rights of forest dwellers seriously, and the implementation of these Acts remained very inadequate. In addition to their weak and ineffective implementation, the onslaught of liberalisation, which advocated the deregulation of rules and appropriation of natural resources, significantly affected the rights of forest dwellers. Since the 1990s, the deprivation and alienation of forest dwellers has been substantial, and the degradation of forests has intensified (Kohli and Menon 2008; CSE 2011). It was at this juncture, in 2002, that the Supreme Court of India, while hearing T. N. Godavarman v Union of India, directed the States to stop regularising encroachments following the MoEF order of 1990.2 The MoEF misinterpreted this as an order to evict encroachers, resulting in the massive eviction of Scheduled Tribes from forest land across India (Asher 2019).
What followed the Supreme Court order of 2002 until the enactment of the FRA in December 2006 was unprecedented in the history of the struggle for forest rights in India. My intention here is not to argue that the struggle for forest rights was not significant before the 2002 order, but to highlight that in 2003 – perhaps for the first time in independent India – a nationwide network of forest rights groups, NGOs, and grassroots organisations came together under one platform, called the Campaign for Survival Dignity (CSD), to protest the eviction order of the MoEF. The CSD employed multipronged strategies, ranging from campaigns to dialogue with political parties to litigation, to address the eviction of forest dwellers.
With the change of regime at the Centre in May 2004, the United Progressive Alliance (UPA-1), backed by Left political parties, took the bold decision to stop the eviction of forest dwellers and, in the Common Minimum Programme, promised to restore and recognise the rights of Scheduled Tribes. An immediate step taken by the UPA-led government was to convey to the Supreme Court through the MoEF that, historically, while Scheduled Tribes across India had been alienated from their lands, and their occupation of forest land for habitation and cultivation labelled as encroachment, they had not been provided viable livelihood alternatives or compensation for their loss of rights over the forest.
Forest rights groups under the banner of CSD argued that, given the record of the MoEF, it should not be assigned the task of addressing the rights of forest dwellers. The CSD received support from the National Advisory Council constituted during the UPA-1 regime to act as an advisory body to the Prime Minister to implement the Common Minimum Programme. This resulted in the responsibility of drafting the legislation on forest rights being assigned to the Ministry of Tribal Affairs (MoTA) rather than the MoEF, which has jurisdiction over forest land and resources. This was a big victory for forest rights groups, as forest bureaucrats and wildlife conservation groups had been strongly opposed to such legislation (Rajshekhar 2012).
The draft Bill was initially titled “The Scheduled Tribes (Recognition of Forest Rights) Bill 2005,” and was introduced by the MoTA during the winter session of Parliament on December 13, 2005. Political parties across the spectrum raised several pertinent issues, such as the title of the Bill, the cut-off date for recognition of forest rights, and the inclusion of other traditional forest-dwelling communities in the list of beneficiaries. After much discussion and a series of deliberations, both within and outside Parliament, on the nature and process of recognition of forest rights, the Bill was finally passed in Parliament on December 15, 2006 as the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and received the approval of the President on December 29, 2006. The rules of its implementation were finalised in December 2007, and the Act came into force on January 1, 2008.
Key Provisions of the Forest Rights Act
The Forest Rights Act, 2006 has been amended once so far, on September 12, 2012. Between December 2006 and March 2020, the MoTA issued a series of orders to address various confusions and complexities in its enforcement. The preamble of the FRA begins with a progressive statement emphasising that this legislation is
an Act to recognise and vest the forest rights and occupation in forest land in forest-dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded.
In other words, the FRA is not a land distribution act; rather, it recognises the pre-existing rights that forest dwellers enjoyed before colonial rule. The preamble further emphasises that the non-regularisation and non-recognition of forest dwellers’ rights over forest lands, both during the colonial period and in independent India, have resulted in historical injustice to forest-dwelling communities. This Act is an attempt to address this historical injustice by recognising and vesting in forest dwellers rights over all types of forests, irrespective of their ownership and classification. A careful reading of Section 2(a) of the FRA suggests that forest dwellers are eligible to claim not only their rights over the forest land within the boundary of their respective revenue villages, but also are entitled to own, access, use, and manage their forest land within the traditional and customary boundaries of the village, irrespective of the classification of the forest. In other words, forest dwellers who have lived in and depended on any type of forest land on or before December 13, 2005 are eligible to claim their rights over this forest land. Another important dimension of the FRA is that the recognised rights can be inherited by family members of the title holder, which means that the title deed will pass on to the next generation of the title holder and cannot be alienated after his/her demise. Sections 3(1) and 3(2) of the FRA recognise all the customary and traditional rights of forest-dwelling communities over forest lands. Broadly, these rights can be categorised into four types and are discussed below.
Types of Rights
Individual forest rights (IFR)
Under Section 3(1)(a) of the FRA, forest dwellers can claim the right to hold and live on the forest land under individual or common occupation for habitation or self-cultivation purposes. They can claim this right over forest lands that they held in possession on or before December 13, 2005. For both habitation and self-cultivation, a nuclear household can claim a maximum of four hectares (or about 10 acres) of forest land.
Community forest rights (CFR)
As discussed earlier, prior to the regulation of forest land and forest resources by British colonial authorities and the subsequent nationalisation of forest produce by the Government of India after Independence, forest dwellers all over the country enjoyed customary and traditional rights over forest land and resources. The processes of regulation and nationalisation prohibited forest dwellers from owning, accessing, using, and selling forest resources without the permission of the Forest Department. This severely affected their socio-economic condition. Chapter II of the FRA mentions that the Act seeks to restore all customary and traditional usufruct rights of forest-dwelling communities within the traditional or customary boundaries of the village, irrespective of the ownership, classification, and size of forests. Some of these include grazing and fishing rights; nistar rights;3 and ownership, access, use, and disposal rights of minor forest products traditionally collected within or outside village boundaries.
Community forest resource management rights
The significance of the FRA is not limited to its emphasis on the need to address the historical injustice done to forest-dwelling communities and extends to its recognition of forest dwellers as integral to the very survival and sustainability of the forest ecosystem. There are two important provisions in the Act that recognise the forest resource management rights of forest-dwelling communities. First, Section 3(1)(i) of the Act: “the forest-dwelling communities are entitled to protect, regenerate, conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.” Secondly, Section 5 of the Act, which states that “recognised forest-dwelling communities, gram sabhas and village-level institutions are empowered to protect forest resources from destructive practices carried out by any authority that is likely to affect their cultural and natural heritage.”
Diversion of forest land for local development rights
Several studies have pointed out that forest areas in India, inhabited by millions of forest-dependent people, lack basic infrastructural facilities and essential services. One of the crucial factors for this has been the centralised forest diversion process for non-forest activity under the Forest Conservation Act, 1980. The FRA aims to address this complex process by empowering State governments to undertake development projects on forest land to improve basic services in local areas. Permissible development activities include the establishment of schools, dispensaries or hospitals, anganwadi centres, fair price shops, electric and communication lines, minor water bodies work, drinking water supply pipelines, rainwater harvesting structures, minor irrigation canals, roads, non-conventional sources of energy, skill upgradation training centres, and community centres. However, these activities are subject to three conditions: (a) a single development activity shall not involve the felling of more than 75 trees per hectare, (b) the proposed activity space shall use less than one hectare, and (c) each development activity must be approved by the gram sabha of that area.
Institutional Framework to Recognise and Vest Forest Rights
The process of recognising and vesting all types of rights to forest dwellers involves a three-tier governance structure: gram sabha, sub-division-level committee (SDLC), and district-level committee (DLC). The most significant aspect of this structure is that the Act prioritises the role of the gram sabha over the panchayat in initiating, scrutinising, taking a decision on the claims submitted at the village level, and then forwarding them to the SDLC.
In addition to processing and verifying forest rights claims under Section 4(1)(e) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Right Amendment Rules), 2012, the gram sabha shall constitute a community forest resource management committee (CFRMC) to protect recognised forest areas and fulfil its duties under Section 5 of the Act. Section 4(1)(f) of the FRA Rules, 2012 further emphasises that the forest conservation and management plan prepared by the gram sabha shall be integrated with the micro working or management plans of the Forest Department, with modifications that the committee might consider necessary. Another important way in which the FRA ensures the devolution of power is by entrusting the gram sabha, and not the Forest Department or any other local authority, with approving the decisions of the CFRMC, such as the issuance of transit permits for forest produce and the use of income from the sale of produce or modification of management plans. Likewise, under Section 4(1) of the Act, no State or Central Government is permitted to create or expand critical wildlife habitats in national parks and sanctuaries until the processes of recognising and vesting rights are complete in all areas under consideration; more importantly, they cannot alter natural habitats without the free, prior, and informed written consent of the relevant gram sabhas.
The 2012 Rules require that the forest rights claims forwarded by the gram sabhas are verified by the SDLC, which is constituted by the State Government. After verification and remarks, the SDLC forwards the claims to the DLC for a final decision. To enable the gram sabha to initiate claims to forest rights, the SDLC is required to take an active interest in providing forest dwellers information about the objectives and procedures laid down under the Act and the Rules and to ensure that the claimants can access the records and forms necessary to claim their rights. Finally, the DLC, also constituted by the State Government, is authorised to consider and approve the record of forest rights prepared by the SDLC. The decision of the DLC on the record of forest rights is final and binding.
Unlike the forest rights committee (FRC) and CFRMC members, who are at the same level as the gram sabha, the SDLC and DLC are constituted by officers of the Departments of Revenue, Forest, and Tribal Affairs of the State Government at the sub-divisional level and three members of panchayati raj institutions, of whom two are Scheduled Tribe members and at least one is a woman. It is important to highlight here that if the SDLC or DLC modifies or rejects a gram sabha resolution, it is required to provide detailed reasons for doing so, communicated in person to the claimant. Similarly, no claim by the above three-tier structure can be rejected merely on technical or procedural grounds. More importantly, the SDLC and DLC, while deciding the claims, cannot insist upon any particular form of documentary evidence. Claimants who are aggrieved by a decision of the gram sabha may file a petition with the SDLC within 60 days; similarly, claimants who are aggrieved by a decision of the SDLC may file a petition with the DLC within the same duration. The SDLC and DLC consider and dispose of such petitions, but both authorities need to ensure that no appeal petition is disposed of unless the aggrieved persons have been given reasonable opportunity to present their case. If the aggrieved persons are not satisfied with the decision of the DLC, then they can invoke Article 226 or Article 32 of the Indian Constitution to seek the intervention of the High Court or Supreme Court, respectively.
Status of Implementation of the FRA: Key Issues and Concerns
This section gives an overview of forest rights claims and trends in the recognition of both individual forest rights (IFR) and community forest rights (CFR) claims in 2008–20, followed by a discussion on the major issues and concerns in the implementation of the FRA. The MoTA, being the nodal agency, has consolidated a State-wise data set on the implementation status of FRA and presents it under two broad categories: IFR and CFR. In the absence of any other authentic data set on the status of the FRA across the country, Table 1 presents an analysis of the MoTA’s Monthly Progress Report (MPR) data set, which documents claims till March 31, 2020.4
|Total IFR claims filed at the gram sabha level||4,102,437|
|Total IFR claims recommended by the gram sabha to SDLC||2,678,355|
|Total IFR claims recommended by SDLC to DLC||2,132,003|
|Total recognised IFR claims||1,907,126|
|Rejected IFR claims||1,705,297|
|Pending IFR claims||490,014|
|Total recognised forest area||4,169,121.7 acres|
|Average IFR recognised area||2.2 acres|
The data in Tables 1 and 2 reveal that 96 per cent of the claims filed and recognised are for IFR. A deeper analysis of the data set further reveals that 64 per cent of IFR claims are from Odisha, Madhya Pradesh, Chhattisgarh, Maharashtra, and Tripura (see Table 3). These five States also account for 71 per cent of the total number of recognised IFR claims and 76 per cent of the total recognised IFR lands in the country. Similarly, around 72 per cent of CFR claims are from Odisha, Madhya Pradesh, Chhattisgarh, Maharashtra, and Gujarat; these States also constitute 88 per cent of recognised CFR claims and 87 per cent of total recognised CFR lands in the country (see Table 4).
|Total CFR claims filed at the gram sabha level||149,108|
|Claims recommended by the gram sabha to SDLC||106,263|
|Claims recommended by SDLC to DLC||97,201|
|Total recognised CFR claims||76,378|
|Rejected CFR claims||47,256|
|Pending CFR claims||25,474|
|Total recognised forest area||8,805,266.9 acres|
|Average CFR recognised area||115.3 acres|
|State||Claims received||Claims recognised||Area recognised (in acres)|
|State||Claims received||Claims recognised||Area recognized (in acres)|
The above analysis of the data set on the status of FRA implementation in 2008–20 reveals that its enforcement has been very uneven across the country. Field observations from Odisha, Jharkhand, and Maharashtra in 2014–20 also reveal serious concerns at the implementation level, some of which are outlined below.
Poor Quality of Recognised Claims
The extent of forest lands on which IFR and CFR claims are recognised is lower than forest lands on which IFR and CFR claims are made. For example, the information obtained from 37 IFR title holders from two villages – Tilher and Batane of Vasai taluk, Palghar district, Maharashtra – suggests that the average IFR area claimed by forest dwellers was 3.25 acres, but the average recognised forest land area was only 1.1 acres. Also, all 37 claimants received titles without maps of their recognised forest land. In the claim recognition process, surveys to update forest land records either were not undertaken or completed, and forest maps were not used to establish recognised boundaries on the ground. Therefore, in several cases, the titles of recognised forest lands do not match their actual positions. Finally, the focus is on the number of titles and not on their quality, both in terms of the accuracy of the recognised area (compared to the claimed area) and whether it has been physically demarcated. For example, in Dhamtari district in Chhattisgarh, 1,378 CFR claims were recognised, but the district has only 653 villages.5 There are multiple CFR titles recognised for several villages in this district. Thus, multiple CFR titles are recognised for a given village, which questions the legitimacy of the titles.
Misinterpretation and Violation of FRA Provisions
Since 2008, the MoTA has issued several orders and notifications to clarify procedures for the verification and recognition of forest rights claims. Despite these regular clarifications, government officers, particularly SDLC and DLC members, misinterpret and violate FRA provisions. For example, a letter dated March 27, 2017 from the National Tiger Conservation Authority announced to the chief wildlife wardens of all States that in the absence of guidelines on notifying critical wildlife habitats, no forest rights were to be conferred in critical tiger habitats. This is a clear violation of Section 2(a) of the FRA, which states that forest-dwelling communities are entitled to claim their customary and traditional rights over forest lands irrespective of the forest’s classification. Furthermore, the SDLC and DLC arbitrarily reject forest rights claims without any communication to the claimants. For example, Sundargarh district in Odisha had recognised 555 IFR claims of other traditional forest dwellers (OTFD) up to June 30, 2018. But on March 31, 2019, the district administration arbitrarily rejected all these claims without giving the title holders a fair opportunity to state their case.6 Titles are randomly issued in the name of JFM committees or panchayat bodies. For example, verification of CFR titles issued to 10 villages in Deori taluk of Gondia district of Maharashtra showed that the DLC had issued titles in the name of the panchayat instead of the gram sabha. Finally, an analysis of recognised IFR and CFR claims reveals that only a minuscule number of OTFD claims have been recognised. For example, Odisha recognised only 73 OTFD claims against the 31,690 submitted claims, whereas the total number of recognised IFR claims for Scheduled Tribes stands at 437,718 against 621,195 submitted claims.
Lack of Coordination Among Line Departments
Three key departments of the State Government – namely, the Revenue, Forest, and Tribal Departments – are crucial to the verification and recognition of forest rights claims. The Department of Tribal Welfare is the nodal agency for enforcement of the FRA at the State level and must coordinate with the Revenue and Forest Departments at the SDLC and DLC levels to facilitate the process of claim recognition. However, DLC officers from Kolhapur district of Maharashtra and Godda district of Jharkhand revealed that between January 2019 and August 2020, the DLC of Kolhapur had met only twice, whereas the DLC of Godda district had never met. Between January 2018 and August 2019, residents of Sundarpahari block in Godda submitted a total of 25 CFR claims through a local organisation, Badlao Foundation, but not a single claim has been recognised due to the DLC’s lack of interest and failure to hold meetings.7 Residents of villages in Odisha, Maharashtra, and Jharkhand revealed that SDLC officers, especially those in the Forest Department, do not share land records and maps with them. The SDLC has also not taken any active interest in creating awareness about FRA procedures and rules, or in providing relevant documents and forms to residents so they can submit their claims.
Lack of Institutional Support in the Post-Claim Recognition Process
When recognising IFR and CFR claims over forest land, the Revenue and Forest Departments have the responsibility of preparing maps of the forest land and of updating revenue and forest records within the duration specified under relevant State laws or within three months, whichever is shorter.8 During discussions with 37 IFR title holders from two Maharashtra villages – Ambesari and Jamshet of Dahanu taluk, Palghar district – we did not find any IFR title holder who had received a final map of the recognised forest land, or a mention of the recognised land in the village revenue record. Section 16 of the FRA Rules, 2012 specifies that the State Government must deliver all government schemes, including those relating to land improvement, land productivity, basic amenities, and other livelihood measures, to claimants and communities whose rights have been recognised and vested under the Act. However, a study of 33 villages from three States – Odisha, Chhattisgarh, and Jharkhand – reveals that institutional support in the post-recognition phase has been almost non-existent (Sahu et al. 2017). The IFR and CFR title holders are left to improve their productivity and livelihoods and protect the forest through their own initiatives.
Lack of Political Will
Political parties across the spectrum have shown little interest in supporting and strengthening enforcement of the FRA – any enthusiasm is limited to brief periods preceding an election. This was seen in the BJP-led National Democratic Alliance government’s interest in the FRA during the pre- and post-election phases of 2019. Before the election, following the Supreme Court’s interim order of February 13, 2019 to evict forest dwellers whose claims were rejected, the government intervened by issuing a stay order on their eviction. However, after winning the election, between May 2019 and August 2020, the BJP has shown no interest in addressing pending forest rights claims. The MoTA data set reveals that out of 201,829 pending IFR claims, only 19,232 have been recognised. The status of CFR recognition is also poor – out of 29,122 pending CFR claims, only 224 had been recognised during the same period. The performance of the Congress-ruled state of Rajasthan is equally alarming. Between November 2018 and March 2020, the State Government did not recognise a single IFR or CFR claim. Recognition of forest rights claims in the Left-ruled state of Kerala is also not high. Between May 2018 and March 2020, it recognised 1,657 IFR claims, among 31,536 pending claims. Over the last 13 years, both the Central and State Governments, ruled by various political parties, have attempted several times to dilute the provisions of the FRA.
Socio-Economic Benefits of CFR: An Overview
This section explains the socio-economic benefits of CFR through case studies from Gondia, Amravati, and Gadchiroli districts of the Vidarbha region in Maharashtra, where 1,388; 857; and 166 CFR claims, respectively, have been recognised. These three districts account for 29 per cent of the 7,909 recognised CFR claims in the State of Maharashtra (TRTI 2020). With the recognition of CFR, villages in these districts have asserted their rights to ownership, access, use, and disposal of minor forest products. These communities have rejected the pre-FRA arrangement relating to minor forest products and institutionalised gram sabha-driven governance structures for minor forest products (Sahu 2020). Our studies of Deori taluk of Gondia; Korchi taluk of Gadchiroli; and Achalpur, Dharni, and Chikhaldara taluks of Amravati reveal that these recognised villages have collectively designed rules and regulations to harvest and sell minor forest products with the support of NGOs. In addition to this support, the Maharashtra government’s policy decision to deregulate minor forest products after the 2006 enactment of the FRA has also enabled the communities to exercise their rights over them. For example, in the case of ownership rights over minor forest products like kendu/tendu leaf (Diospyrosmelanoxylon) in Deori, residents of the village, regardless of whether the government recognises their CFR claims, have gained significantly due to the deregulation of kendu leaf rules in Maharashtra. The information collected during May–July 2020 (see Table 5) provides an overview of the economic benefits and the profile of the CFR-recognised villages in Deori.
|Total number of recognised CFR villages under group gram sabha||41|
|Total recognised CFR area for the 41 villages||7,836.3 hectares|
|Total number of bags of kendu leaf collected (standard bags*) in 2020||4,811.27|
|Rate fixed per standard kendu leaf bag||Rs 5209|
|Total income from kendu leaf||Rs 25,061,905.4|
|Total number of households involved||3,230|
|Scheduled Tribe households||2,155|
|Other traditional forest dweller households||1,075|
|Average income per household from kendu leaf||Rs 7,759.1|
Note: *1 standard bag = 1,000 bundles, with each bundle consisting of 70 leaves.
Source: Group gram sabha and Vidarbha Nature Conservation Society, the facilitating organisation.
There are many similar examples from Maharashtra’s Vidarbha region. For instance, in Amravati district, 31 villages consisting of around 3,000 households across the Achalpur, Dharni, and Chikhaldara taluks sold 2,774 standard bags of kendu leaf in 2020 and earned Rs 8.3 million.9 Similarly, Amhi Amchya Aarogyasathi, an organisation working on various socio-economic, health, and forest rights issues in Korchi taluk of Gadchiroli district, revealed that 72 gram sabhas in Korchi earned Rs 52.8 million by selling 8,130 standard bags of kendu leaf during the Covid-19 lockdown period, which benefited 6,393 households.
The economic gain discussed here is from only one minor forest product – kendu leaf – which involves only 10–12 days of labour. We can only imagine the scale of economic gain from other kinds of minor forest products, and how they could have helped households cope with financial distress, had they been a viable option.
There are also other intangible benefits due to the shift in decision-making power from the Forest Department to the gram sabha over the use and management of minor forest products through collective action. We found out from the gram sabhas of Korchi and Deori taluks that the participation of the most marginalised members – the landless and women – in decision-making on forest resource use and harvesting has increased significantly. Today, women represent 50 per cent of the membership in decision-making bodies at all levels, from the FRC to the CFRMC. Prior to the FRA, forest dwellers were excessively dependent on credit from middlemen, who offered it at high interest rates. However, after their forest rights were recognised, their dependence on these middlemen has weakened. Additionally, the reservation of 50 per cent of seats in the gram sabha for marginalised groups has neutralised elite power. We also found that in the absence of secure tenure rights and access to minor forest products, forest dwellers in these gram sabhas had been migrating to nearby towns and districts for decades. With the recognition of their rights over forest land and resources, migration in these villages has declined (Sahu, Paul, and Dethe 2019). Each gram sabha has also framed stringent rules to prohibit the harvesting and use of forest resources in an indiscriminate manner. These are striking examples of how collective action with legal sanction can bring material benefits to forest dwellers and lead to the empowerment of marginalised groups and eventual social transformation in rural areas.
The promise of the Forest Rights Act (FRA) to legalise tenure rights over forest land is a significant policy move to address the historical injustice meted out to millions of forest dwellers in the country. Though the potential of the Act is yet to be fully harnessed, preliminary research and prima facie evidence suggest that the FRA has improved the socio-economic conditions of local communities around forests. There is an urgent need to employ concerted strategies to scale up the implementation of the FRA. Some immediate tasks that relevant agencies must implement include evolving a participatory institutional mechanism to review illegally and arbitrarily rejected claims, fast-tracking pending claims, preparing records of rights for recognised claims as per State forest and revenue laws, integrating line department schemes with forest rights holders, deregulating minor forest product rules at the State level, facilitating the sale of minor forest products harvested by forest dwellers, and providing institutional and technical support to community members to prepare and manage recognised customary and traditional forest areas. These efforts will substantially contribute to not only securing tenure rights but also to enhancing the livelihood of forest dwellers and sustainable use and management of forest resources.
Acknowledgements: I thank the anonymous reviewers of this journal for their many insightful comments and suggestions on how to revise the paper. I also thank the Foundation for Ecological Security (FES), Anand for providing financial support to conduct this study.
1 For more details, see GoI (1952).
2 In 1995, T. N. Godavarman filed a public interest litigation to stop commercial interests from encroaching upon forests in the Nilgiri Biosphere Reserve, but the Supreme Court expanded its jurisdiction beyond the Nilgiris and directed all States to stop diverting forest land for non-forest use without the approval of the Central Government. The Court also expanded its sphere of hearing to all other matters related to forests, including illegal occupants and encroachment of forest lands, based on cases filed by several wildlife NGOs.
3 Nistar rights refer to concession rights over forest land and resources as recognised by erstwhile rulers or zamindars before Independence.
4 The MPR uploaded by the MoTA on its website provides a State-wise cumulative data set on the status of FRA implementation. However, the report is not uploaded monthly, so the latest available report (March 2020) has been used for analysis.
6 The research officer of TISS gathered this information during her fieldwork in Sundargarh district between September 2018 and April 2019.
8 For more details, see the MoTA’s Circular on Record of Rights, dated March 3, 2014, F. No. 23011/06/2014-FRA, Government of India.
|Asher, Manshi (2019), “Evolution of the Forest Rights Act: A Historical Perspective,” Indian Journal of Social Work, vol. 80, no. 4, November, pp. 405–22.|
|Asher, Manshi, and Agarwal, Nidhi (2007), Recognising the Historical Injustice: Campaign for the Forest Rights Act 2006, National Centre for Advocacy Studies, Pune.|
|Bray, David Barton, Antinori, Camille, and Rojo, Juan Manuel Torres (2004), “The Mexican Model of Community Forest Management: The Role of Agrarian Policy, Forest Policy and Entrepreneurial Organization,” Forest Policy and Economics, vol. 8, pp. 470–84.|
|Centre for Science and Environment (CSE) (2011), “System of Green Clearances Not Working for Environment and People and Clearances Not the Impediment to Growth,” available at https://www.cseindia.org/system-of-green-clearances-not-working-for-environment-and-people-and-clearances-not-the-impediment-to-growth-says-cses-new-study--3186, viewed on November 20, 2020.|
|Fisher, M. R., Moeliono, M., Mulyana, A., Yuliani E. L., Adriadi, A., Kamaluddin, Judda J., and Sahide, M. A. K. (2018), “Assessing the New Social Forestry Project in Indonesia: Recognition, Livelihood and Conservation?” International Forestry Review, vol. 20, no. 3, pp. 346–61.|
|Government of India (GoI) (1952), National Forest Policy, New Delhi, available at https://www.latestlaws.com/bare-acts/state-acts-rules/state-laws/national-forest-policy-1952/, viewed on September 11, 2020.|
|Government of India (GoI) (1988), National Forest Policy, New Delhi, available at http://asbb.gov.in/Downloads/National%20Forest%20Policy.pdf, viewed on December 1, 2020.|
|Government of India (GoI) (2006), Report of the National Forest Commission, Ministry of Environment and Forests, New Delhi.|
|Government of India (GoI) (2017), Forest Survey of India, Ministry of Environment, Forests and Climate Change, New Delhi.|
|Government of India (GoI) (2020), “Monthly Update on Status of Implementation of the Scheduled Tribes and Other Traditional Forest Dweller (Recognition of Forest Rights) Act, 2006,” Ministry of Tribal Affairs, New Delhi, March, available at https://tribal.nic.in/FRA/data/MPRJan2020.pdf, viewed on December 1, 2020.|
|Guha, Ramachandra (1983), “Forestry in British and Post-British India: A Historical Analysis,” Economic and Political Weekly, vol. 18, no. 44, October 29, pp. 1882–96.|
|Kanal, K R., and Kandel, B. R. (2004), “Community Forestry in Nepal: Achievements and Challenges,” Journal of Forest and Livelihood, vol. 4, no. 1, July, pp. 55–63.|
|Kohli, Kanchi, and Menon, Manju (2008), “License to Destroy,” in Wani, Milind (ed.), Nought Without Cause, National Workshop Report on Underlying Causes of Deforestation and Forest Degradation in India, Bhubaneswar, January 26–28.|
|Ministry of Environment and Forests (MoEF) (2009), Asia-Pacific Forestry Sector Outlook Study II: India Country Report, Working Paper No. APFSOS II/WP/2009/06, FAO, Bangkok.|
|Rajshekhar, M. (2012), “The Act That Disagreed with Its Preamble: The Drafting of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006,” available at https://mrajshekhar.wordpress.com/on-the-draftingofthe-forest-rightsact/, viewed on November 20, 2020.|
|Sahu, Geetanjoy (2020), “Implementation of Community Forest Rights: Experiences in the Vidarbha Region of Maharashtra,” Economic and Political Weekly, vol. 55, no. 18, May 2, pp. 42–48.|
|Sahu, Geetanjoy, Paul, Mrinalini, and Dethe, Vijay (2019), “Socioeconomic Benefits of Community Forest Rights: A Case Study of Pachgaon in Chandrapur District of Maharashtra,” Indian Journal of Social Work, vol. 80, no. 4, October–November, pp. 501–16.|
|Sahu, Geetanjoy, Sharma, Asavari Raj, Sahoo, Uttam, Verma, Asha, Gill, Parminder, Sahoo, Bikash Kumar, Radhakrishnan, Goutham, and Agarwal, Kritika (2017), “A Rapid Assessment Study of Forest Rights Act Implementation Process: Case Studies from Jharkhand, Odisha and Chhattisgarh,” Tata Institute of Social Sciences, Mumbai.|
|Tucker, P. Richard (2012), A Forest History of India, Sage Publications, Delhi.|
|Tribal Research & Training Institute (TRTI) (2020), “Monthly Progress Report on Status of Forest Rights Act 2006 Implementation in Maharashtra,” Pune, Government of Maharashtra.|
|White, Andy, and Alejandra Martin (2002), Who Owns the World’s Forests? Forest Tenure and Public Forests in Transition, Rights and Resources Initiative, Washington D. C.|
|Wily, L. A. (2007), “So Who Owns the Forest? An Investigation into Forest Ownership and Customary Land Rights in Liberia,” Sustainable Development Institute/FERN, Monrovia, available at https://www.fern.org/fileadmin/uploads/fern/Documents/so%20who%20owns%20the%20forest%20summary.pdf, viewed on November 20, 2020.|
|World Bank (2005), India: Unlocking Opportunities for Forest Dependent People in India, Report No. 34481-IN, Agricultural and Rural Development Sector Unit, South Asia Region.|
|BJP||Bharatiya Janata Party|
|CFR||community forest rights|
|CFRMC||community forest resource management committee|
|CSD||Campaign for Survival Dignity|
|FRA||Forest Rights Act|
|FRC||forest rights committee|
|IFR||individual forest rights|
|JFM||joint forest management|
|MoEF||Ministry of Environment and Forests|
|MoTA||Ministry of Tribal Affairs|
|MPR||MoTA’s Monthly Progress Report|
|OTFD||other traditional forest dwellers|
|UPA||United Progressive Alliance|