On the fringes

As various agencies implement the Act, many issues having a bearing on its objectives are likely to come up for resolution.

in New DelhiTribal people injured

The recognition of forest rights is an acknowledgement that forests and forest-dwelling people are inseparable. One may wonder why the country took so long to enact the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act. The answer has to be found in the evolution of the Act itself.

The statement of objects and reasons (SOR) of the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 (as it was originally called), attributed the delay in recognising forest rights to colonial rule which somehow ignored this reality for greater economic gains. The SOR admitted that after Independence, in its enthusiasm to protect natural resources, the state continued with colonial legislation. The simplicity of the tribal people and their general ignorance of modern regulatory frameworks precluded them from asserting their genuine claims to resources.

The SOR suggested that insecurity of tenure and fear of eviction from the lands where they lived and thrived for generations were perhaps the biggest reasons why tribal communities felt emotionally as well as physically alienated from forests and forest lands.

The Indian Forest Act, 1927, the Wildlife Protection Act, 1972, and the Forest (Conservation) Act, 1980, have been premised on the misconception that any human interference in a forest ecosystem would lead to its destruction. The National Forest Policy, 1988, which outlined a policy statement on national conservation strategies, challenged this traditional view. It preferred to recognise forest-dwelling communities as primary stakeholders in forests and involve them in the conservation process.

The policy statements, notifications and judicial affidavits of the Government of India after 1988 have consistently pushed this agenda forward. One of the promises made in the National Common Minimum Programme adopted by the United Progressive Alliance in 2004 before the formation of the government at the Centre gave expression to this aspiration. The alliance vowed to discontinue eviction of tribal communities and other forest-dwelling communities from forest areas.

The background note on the Forest Rights Bill explained the rationale of the Bill in terms of vesting the forest rights and occupation of forest land with forest-dwelling S.Ts who had been residing there for generations, and who were integral to the very survival and sustainability of the forest ecosystem, but whose rights could not be recorded.

The Joint Parliamentary Committee (JPC), which considered the Bill and submitted its report in May 2006, vastly changed the character of the Bill to further the interests of forest-dwelling communities and to address the core concerns of its critics.

The JPCs major contribution was to expand the scope of the Bill to include traditional forest-dwellers other than the S.Ts who have been residing in the forest or in close proximity to the forest for generations and primarily depend on forest land or forest resources for their livelihood. Non-recognition of their rights would not just have posed a threat to their livelihood, but led to their eviction. They have lived in harmony with the S.Ts in the forests.

Section 2(o) of the Act defines other traditional forest-dweller as any member or community who has for at least three generations prior to December 13, 2005, primarily resided in and depended on the forest or forest land for bona fide livelihood needs. The word generation has been defined as a period comprising 25 years for the purposes of this clause.

The Act imposes no such restriction (with regard to the number of generations) if the forest-dweller happens to be an S.T. Therefore, it is ironical that the government did not accept the JPCs broader definition of traditional forest-dweller, so as to erase a feeling of discrimination against non-S.T. forest-dwellers.

According to the JPCs suggested definition, the term includes, apart from those living in or adjacent to forests for at least three generations, such communities which have settled or have been located in forest land as a result of government policy or those who have been forcibly displaced from their original habitats because of development projects, natural calamities or other circumstances, or those whose original habitat has been declared as forest, sanctuary, national park or protected area.

There are misgivings among activists that most forest-dwellers do not strictly dwell inside forests. They live on the fringes of forests, but are heavily dependent on forest land and resources for their livelihood. Therefore, there are apprehensions that the Act may exclude a large number of beneficiaries by its constrictive definition.

The JPC felt that there was a need to expand the definition of forest-dwelling S.Ts to include such S.Ts who reside in or in the close proximity of the forest land, to protect their rights to livelihoods and other rights. This recommendation, however, did not find favour with the government. Section 2(c) of the Act defines forest-dwelling S.Ts as those residing in and who depend on forests for bona fide livelihood needs.

The JPCs contribution also lies in pushing the cut-off date for recognition of rights from October 25, 1980, as provided in the Bill to December 13, 2005, the date of introduction of the Bill in the Lok Sabha. The JPC noted that the earlier cut-off date had no legal sanctity except that it was the date of the commencement of the Forest (Conservation) Act, 1980. The JPC observed: Such a cut-off date in the distant past will take away the right of many people who have migrated or been displaced or shifted from their original location during this period. Furthermore, it will make it very difficult for the forest-dwellers to prove and establish their claims for rights. The governments acceptance of this recommendation by suitably changing the cut-off date in Clause 4(3) of the Act is in sync with the very spirit and object of this legislation.

With the notification of the Rules on January 1, the stage is now set for the implementation of the Act. The evidence for recognition and vesting of forest rights, as per Rule 13, includes public documents, government-authorised documents, physical attributes, quasi-judicial and judicial records, research studies, any record from erstwhile princely States, traditional structures establishing antiquity, genealogy tracing ancestry to individuals mentioned in earlier land records, and statement of elders other than claimants, reduced in writing. The Rules say that the gram sabha, the sub-divisional level committee and the district level committee shall consider more than one of these in determining forest rights.

As the various agencies implement the Act in accordance with the rules framed, many issues of concern having a bearing on its objectives are likely to come up for debate and resolution, throwing further light on the merits of various provisions of the Act and the rules.

Two such issues of concern, already expressed, appear to be serious. In the draft rules, Section 34 provided that the Ministry of Environment and Forests may, within six months from the date of coming into force of the rules, and in consultation with the Ministry of Tribal Affairs, issue detailed guidelines regarding the nature of data to be collected, the process for collection, validation of the data, their interpretation, and so on in determining the critical wildlife habitat. These guidelines, the draft suggested, shall take into account the existing guidelines relating to documentation of biodiversity and wildlife and delineation of areas such as heritage sites and national parks. But the final rules chose to be silent on this, leaving it to bureaucrats to define the critical wildlife habitat. The discretion given to bureaucrats on this issue is viewed with suspicion by activists.

Second, the definition of gram sabha under Section 3 of the draft rules has been distorted. In the draft, it was said that gram sabha might comprise a hamlet or a group of hamlets or even adult members of the village, managing their affairs in accordance with their traditions and customs. The final rules say the gram sabhas shall be convened by the gram panchayat, which is a bigger entity. Merger of these hamlets by the gram panchayat, in practice, may result in serious dilution of their rights, as the gram panchayat may be susceptible to extraneous influences.

Nandini Sundar, sociologist and one of the non-official members of the technical support group (TSG) for framing rules, said the group did not have a say in finalising the rules, as the task was given by the government to the two-member committee comprising tiger conservationist Valmik Thapar and Supreme Court lawyer Mahendra Vyas. The TSG simply wasted its time, she lamented.