Forest Rights Act of India, Part 3

(This is a continuing series of articles on the Forest Rights Act, part 1 and part 2. This is the third and final part of the series.)

The following anomalies need to be addressed for better implementation of the act:

Tendu Leaf Collection in Forest of Chhattisgarh in India

There is a need for better implementation of the Act. This was evident in the workshop organized for better implementation of the Forest Rights Act held in Sep., 2012. It was noted by the officials that the implementation of the Act had been far from satisfactory.[1] There is also an urgent need for the translation of the Act into vernacular languages and dialects to empower the local communities by informing them of their rights as noted by Vibha Puri Das, Union Tribal Affairs Secretary, “translating of FRA Act in tribal dialects is an innovative attempt to generate awareness among tribal communities. Other State governments should follow this practice.”[2]

Further, the media owned by the State and the public relations department need to undertake exercises in spreading awareness amongst the local population. It must be kept in mind that the Forest Rights Act is meant for the lowest of the low, they are such highly marginalized sections of society that they are hardly aware of their rights. So informing them of their rights would be the first step in empowering them.

Simple guidelines detailing steps on filing of claims, something like “How to file a claim” should be popularized by Ministry of Tribal Affairs. The guidelines should be in local languages to enable better comprehension by the indigenous population.

The ultimate goal of the Forest Rights Act is necessarily the democratization of the process of governance of India’s forests. This can hardly be achieved if the present rigid structure continues. In many cases such as the Bamboo controversy in which states have not allowed locals to harvest bamboo citing the relevant forest acts. The rights granted by the Forest Rights Act would be of no meaning if they can be overshadowed by other acts.

The Act itself states, Save as otherwise provided in this Act and the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

There is therefore a need to adequately amend relevant sections of other forest related acts to fine tune them with the Forest Rights Act so as to remove all conflicts.[3]

Due to the confusion as to the claims of the Other Traditional Forest Dwellers as they need to demonstrate that they have primarily resided in and depended on the forest or forest lands for bona fide livelihood needs since the year 1930. This has been cited as one of the reasons for the rejection of claims of Other Traditional Forest Dwellers. The committee recommended that, “…Specifically, the MoTA should clarify in one single circular that, in the case of OTFDs: a) the requirement “for at least three generations prior to December 2005” applies to the residency clause only, and relates to the recognition of a non Scheduled Tribe person as an OTFD under the Act; this requirement does not relate to the parcel of land for which a claim is being made, or to the forest on which other rights are being claimed. The claimant need not have occupied the land, or been using the forest, for 75 years.”[4]

It is important to note that the requirement of 75 years is for deciding whether the person qualifies as an Other Traditional Forest dweller. Once it is established that he is, then he is liable to get his rights for which the criterion is same, that is, of being engaged in that activity before December 13, 2005. This again brings one of the issues to the fore that the officials need to be sensitized and imparted technical training for correct interpretation of the act.[5]

The Other Traditional Forest Dwellers is an inclusive term and an enabling provision. It was incorporated as an arbitrary division into Scheduled Tribes and non-scheduled tribes would leave out many who did not belong to either category. To exclude the claims of Other Traditional Forest Dwellers would be defeating the very purpose of the Act which meant to include all such people dependent on forests for their livelihoods.

There have been cases where the forest department refused to issue transit permits to facilitate trade of bamboo or other minor forest produce.[6] For long, the minor forest produce trade has remained a monopoly and the forest department has been reluctant to give up this exclusive right. The Ministry of Tribal Affairs has issued fresh guidelines to ensure this is done away with.

“The State Governments should exempt movement of all MFPs from the purview of the transit rules of the State Government and, for this purpose, the transit rules be amended suitably.  Even a transit permit from Gram Sabha should not be required.  Imposition of any fee/charges/royalties on the processing, value addition, marketing of MFP collected individually or collectively by the cooperatives/ federations of the rights holders would also be ultra vires of the Act.” [7]

In some states, it has been seen that even after the intervention of the MoEF, there has been a resistance from the forest department and the minor forest produce trade has remained largely with the forest bureaucracy. [8]

The Act is very much applicable to the protected areas but in the absence of clear guidelines, there has been varied interpretation even to tiger reserves but there have been instances where such sites have been excluded. [9] However, the scope of the Forest Rights Act extends over all of forest land no matter which category it may fall under. Care should be taken to ensure that no notifications relating to Tiger Reserves and Critical Wildlife Habitats are undertaken in violation of the FRA. According to section 4 (2) of the Forest Rights Act, “Forest dwelling people can be relocated and resettled only on a voluntary basis for declaring a CWH and creating an inviolate area for wildlife conservation.”  but the term inviolate does not necessarily mean completely devoid of human existence. [10] The process of declaring such critical habitats is still not complete in many states and a recent order was issued with regard to tiger reserves by the court which might see the process expedited.

The Act except a few states is not being implemented in protected areas, particularly Community Forest Rights provision have been largely ignored on account of the mis-interpretation that the act does not apply to such areas.

According to figures available with the tribal affairs ministry, some 31.75 lakh ownership claims have been filed as of March, 2012. Only 12.50 lakh titles or less than 50 per cent have been distributed.[11] A large number of claims have also been rejected.[12]

The fresh guidelines issued ensure that no claims can be rejected without giving the claimant the chance to present his/her case. The guidelines also ensure that state governments should ensure that forest and revenue officials were present during verification of claims. If a claim is modified or rejected, it should be communicated to the claimant to give them a chance to contest the decision.[13] However, there have been reports of claimants not being communicated of the decision and thus cannot contests the decision.[14]

The Forest Rights Act has suffered due to lack of implementation because of a lack in administrative back up, budgetary and infrastructure support for implementation.[15] A large number of claims remain pending for want of manpower and financial support to complete the verification process, mapping and recording of rights.

Concluded.

[1] “Though the Act was operative from last four years, not much had been achieved as far a community forest rights of people traditionally living in and near the forests are concerned.” Better coordination sought for Forest Rights Act implementation , Times of India (2012)  [Online: web] Accessed 1 Oct. 2012 URL: http://m.timesofindia.com/city/nagpur/Better-coordination-sought-for-Forest-Rights-Act-implementation/articleshow/16562851.cms

[2] FRA: State initiative comes in for praise, The Hindu (2012) [Online: web] Accessed 1 Oct. 2012 URL: http://www.thehindu.com/todays-paper/tp-national/tp-otherstates/article3925373.ece

[3] Multiplicity of vertical roles (planning, regulation, execution and monitoring) vested in a single agency (such as the FD) leads to conflict of interest. Government of India, Report National Committee on Forest Rights Act (2010)Pgs218 [Online: web] Accessed 1 Oct. 2012 URL: http://moef.nic.in/downloads/public-information/FRA%20COMMITTEE%20REPORT_FINAL%20Dec%202010.pdf

[4]Furthermore, Regarding what constitutes “primarily  resided in”, the MoTA in its  circular of 09.06.2008 has already clarified the interpretation of the phrase “primarily resided in and who depend on” includes persons “who are not necessarily residing inside the forest but are depending on the forest for their bona fide livelihood needs”

or “who are working on patches of land in such areas irrespective of whether their dwelling houses are outside the forest or forest land”.   Government of India, Report National Committee on Forest Rights Act (2010)Pgs57 [Online: web] Accessed 1 Oct. 2012 URL: http://moef.nic.in/downloads/public information/FRA%20COMMITTEE%20REPORT_FINAL%20Dec%202010.pdf

[5] Lack of awareness among administrative officers at the district and block levels about the Forest Rights Act (FRA) 2006 and poor supervision are some of the main reasons behind the tardy implementation of the FRA in the state. Time of India [Online: web] Accessed 1 Oct. 2012 URL: http://lite.epaper.timesofindia.com/getpage.aspx?articles=yes&pageid=5&max=true&articleid=Ar00500&sectid=1edid=&edlabel=TOIL&mydateHid=07-06-2010&pubname=Times+of+India+-+Lucknow+-+Times+City&title=%E2%80%98Ignorant%E2%80%99+officials+led+to+poor+FRA+implementation&edname=&publabel

[6] However, forest officials have been resisting any liberalisation on bamboo, as it would have deprived them of the power to harvest bamboo and auction it to the pulp, paper and cardboard industry. The tribals could only watch in despair the industry getting bamboo at throw-away prices because of the long-term lease they enter into with the government, whereas they had to face all kinds of harassment for cutting bamboo even for their own domestic use. The New Indian Express, Give tribals the right to harvest, sell bamboo (2012) [Online: web] Accessed 3Oct. 2012 URL: http://newindianexpress.com/editorials/article600240.ece

[7] Government of India, Ministry of Tribal Affairs, Implementation of the Scheduled Tribes and Other Traditional

Forest Dwellers (Recognition of Forest Rights) Act,  2006 – guidelines regarding (2012) [Online: web] Accessed 1 Oct. 2012 URL:http://tribal.nic.in/writereaddata/mainlinkFile/File1416.pdf

[8] Actual implementation of the fresh guidelines issued by ministry could still be an uphill task though. A prominent example of this is Congress-run Maharashtra where even though the chief minister and Union environment ministers intervened to get the bamboo trade out of the clutches of contractors and forest department in one particular case, the bureaucracy has denied rights to people to cut and sell bamboo under FRA. Times of India, (2012) [Online: web] Accessed 1 Oct. 2012 URL: http://articles.timesofindia.indiatimes.com/2012-07-13/india/32663028_1_kishore-chandra-deo-tribal-affairs-ministry-forest-rights-act

[9] The fact that Tiger Reserves are not mentioned in the definition of ‘forest land’ in the FRA (though they are a separate category in the WLPA 2006), has been used by some people to claim that the FRA does not apply in Tiger Reserves. However this ignores the fact that Tiger Reserves are mostly composed of national parks, sanctuaries, and/or RF/PF/other forest areas, over all of which the FRA applies. Government of India, Report National Committee on Forest Rights Act (2010)Pgs127[Online: web] Accessed 1 Oct. 2012 URL: http://moef.nic.in/downloads/publicinformation/FRA%20COMMITTEE%20REPORT_FINAL%20Dec%202010.pdf

[10] Yet another example is ‘inviolate’, which commonly gets interpreted to mean ‘human-free’, leading to the presumption that relocation has to take place from all CWHs. The MoEF Guidelines does not provide guidance on

these terms… Government of India, Report National Committee on Forest Rights Act (2010)Pgs127[Online: web] Accessed1Oct2.2012URL:http://moef.nic.in/downloads/publicinformation/FRA%20COMMITTEE%20REPORT_FINAL%20Dec%202010.pdf

[11] Government of India, Ministry of Tribal Affairs Status report on implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (31stMarch, 2012) [Online: web] Accessed2Oct.2012URL: http://tribal.nic.in/writereaddata/mainlinkFile/File1381.pdf

[12] Where land rights are recognised, title is issued only for a fraction of the area to which the people are actually entitled. The Hindu, Forest dwellers denied rights as law bristles with lacunae: Deo (2012) [Online: web] Accessed2Oct.2012URL: http://www.thehindu.com/news/national/article3463128.ece

[13] Individual right recognition process is not being followed up as per the law. The claimants are not intimated about the status of their claim by which they are being deprived of appeal as per the provision of the Act. Orissa Diary (2012)  [Online: web] Accessed2Oct.2012URL: http://www.orissadiary.com/CurrentNews.asp?id=34385

[14] “But the claimants often do not know why their claims have been rejected, so they do not appeal. The apathetic attitude of the administration is mainly responsible for the poor rate of distribution of pattas (title deeds),” said Tushar Dash, a researcher on FRA implementation at Vasundhara, an NGO in Bhubaneswar. The Telegraph (2012)[Online:web]Accessed2Oct.2012URL:http://www.telegraphindia.com/1120713/jsp/nation/story_15723566.jsp#.UGpZJJhJ7sQ

[15] A significant fraction of government and other funds should be provided for strengthening the monitoring and technical capabilities of local communities and of the FD for community-based forest orientation, through direct training, through R&D on multipurpose forestry, through experimenting with various participatory planning models, etc. Such funding should be under the supervision of state and district committees, and be completely transparent to the public. Government of India, Report National Committee on Forest Rights Act (2010) Pgs151 [Online: web] Accessed3Oct.2012URL:http://moef.nic.in/downloads/publicinformation/FRA%20COMMITTEE%20REPORT_FINAL%20Dec%202010.pdf

Image credit: Pankaj Oudhia on Wikipedia

Puskar

Editor in chief @GreenCleanGuide.com

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