A silent betrayal

In a travesty of the Forest Rights Act set up to protect indigenous communities, members of the Lippa tribal village in Himachal Pradesh are being denied individual forest rights.

Published : Oct 06, 2019 07:00 IST

A resident returns after collecting fuelwood from the forest.

A resident returns after collecting fuelwood from the forest.

Himachal Pradesh , a State where two-thirds of the landscape is categorised as forest and 90 per cent of the population is dependent on it, has been slack in implementing the Forest Rights Act, 2006 (FRA). The story of a tiny tribal village called Lippa, from where 47 individual forest rights claims were among the first to be rejected in the State, reveals the grim reality of a betrayal.

Enacted by Parliament to recognise the legal rights of forest-dependent communities on land categorised as forest, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the FRA in short, is still mired in myriad contestations, in idea and in implementation, both nationally and on the ground in States such as Himachal Pradesh.

A plate of unshelled almonds and another one with pine nuts ( chilgoza ) are laid out on a small table at Tashi Chhewang’s home in Lippa in the tribal district of Kinnaur. Tashi, secretary of the Forest Rights Committee formed under the FRA, placed the forest rights claims file on the table.

Lippa’s “Community Forest Rights” claims file, running into almost a hundred pages, is testimony to the relationship between indigenous people and forests. Customary documents of recorded rights called the “wajib-ul-arz” and “naksha-haq-bartan”, prepared during forest settlement carried out by the British, indicate that the residents of Lippa have traditional usufruct rights over a massive area running into 6,200 hectares of forest land.

Today, the number of right-holders (adult members in the village) laying claim to the forest land is 829. Apart from information on grazing land, paths, sites of spiritual and religious significance for this Buddhist community, floral and faunal biodiversity, and names of 138 groundwater springs, there is meticulously handwritten material in the file on nearly 30 types of recipes and decoctions made from forest produce, an exhaustive inventory of musical instruments, measuring devices, metal works, handicrafts and traditional dresses, woodwork, agricultural and other implements and vessels.

“Elders from the community have put in a collective effort to bring this together,” said Tashi. “This is nothing, there is much more,” he added, indicating that a bunch of papers to fulfil bureaucratic requirements cannot capture the essence of life in these highlands.

Critical dependence

Life of the Kanauras, the people of Kinnaur, is defined by the remoteness as well as the geological and ecological vulnerability, characteristic of these borderlands of the high Himalaya. Lippa, at 8,800 feet, sits in a small valley formed by the Kerang stream, which eventually meets the Sutlej, the spine of Kinnaur. A prominent shift in the local economy and the relationship with land in this region came post-Independence with the building of roads and the introduction of apple cultivation.

Traditionally, owing to the local ecology, nomadic pastoralism was practised together with trade and subsistence farming, with each family owning large herds of sheep, goats and mules migrating down to the valleys of Sirmaur, 400 kilometres away. Two generations ago, a member of Tashi Chhewang’s family also worked as an agricultural labourer on a farmer’s land there.

Tashi’s sister Chandrapuri, who served rotis made on a tandoor with wild greens called pret , said: “We walked three hours to bring this from the forest. These will be sun-dried for use in winter.” Even today, apart from fodder, grass and fuelwood, the forests provide wild chilgoza pine nuts and kala jeera, a source of substantial income.

Today, landholdings are more fragmented as nuclear families are the norm. Given the short earning season from farms and the tiny size of the landholdings (around one hectare on average), making the high-investment apple crop a viable source of income meant bringing more land under orchards.

As part of land reforms, the “nautor” (breaking new land) rules of 1968 provided the legal opportunity for families that were completely or near landless, many of them Dalit, to occupy new land. After 1980, the Forest Conservation Act made diversion of forest land, even for basic livelihood needs, next to impossible, leaving many of the occupants with holdings that were “illegal” in the revenue records.

Hukum Dolma, a weaver in her late seventies, sat on the floor in the tiny kitchen of her home in Chamraring hamlet of Lippa, looping a woollen yarn on a metal rod in meditative motion. Next to her on one of the two khaddis (weaving looms) was her 47-year-old son, Tashi Wangyur. In the neighbouring room, his wife, Savita Kumari, was weaving a shawl on their third loom, inserting the weft over and under the warp with rapidity and precision. This Dalit family of weavers supports itself on the five bighas (1 bigha = 0.08 hectare) of land allotted to it in the 1980s, on which a small orchard has been grown. They are one of the 47 applicants from Lippa claiming individual forest rights under the FRA.

“We just claimed 4 biswas of land [one biswa is 0.0164 ha or between 37 and 42 square metres depending on the revenue area] on which this house stands. It was built by my father decades ago and we do not have the ownership title,” Wangyur said.

There are three others like him among the 47 who claimed land for habitation. One is his neighbour, Chhering Zhangmo, a 78-year-old Dalit widow who lives with her adult son and daughter, who are both polio-stricken. Chhering’s husband, who worked in the government veterinary department in the neighbouring village, passed away years ago.

“After his demise I got the job of a cleaner there. I managed to save some money and built this house,” said Chhering. This landless family is now surviving on her pension and doing odd jobs like carding wool for the neighbours.

The rest of the applicants have mostly claimed rights for orchards and farm lands that they occupied before December 13, 2005, the cut-off date for occupations on forest land specified in the FRA. The average size of the land claimed is less than five bighas and, barring four or five applicants, the landholdings of the majority are up to 10 bighas (less than a hectare).

For instance, Chhering Tashi owns five bighas, which he finds insufficient to raise his family of five. He has made a claim over two bighas of land on which, besides apples, the family grows phaphar (buckwheat), jau (barley), rajma and potatoes for its consumption. Prosperity from cash crops is a recent phenomenon, and people worry that it may not be a long-lived one given the vagaries of the market and climate change. While the area under apple production has been increasing over the years in Kinnaur, productivity has not kept pace.

“There are more pests, we don’t get the same number of chilling hours…,” Chhering claimed. Farmers also recall the unexpected rain and floods of 2013 that devastated fields and led to losses that took them almost three years to recover from.

“A substantial chunk of the 200 families in the village have some ‘occupation’ on forest land, but the claimants are hesitant to come forward to stake their claims under individual forest rights,” residents said. This situation is not unique to Lippa but has been witnessed across the State, which is why only about 2,319 claims, according to official estimates, have been filed in Himachal so far.

In a State where almost 70 per cent of the total geographical area is classified as forest, this number is abysmally low. The lack of faith that occupations on forest land may be regularised is rooted in both history and present-day reality. The making of the “encroacher” is a process that began with the colonial government bringing all forest land under its control and following it up with conservation policies and legislation which ensured that people’s, individual as well as community access to all land classified as “forest” was restricted.

In 2002, when the Ministry of Environment initiated removal of “encroachments” from forest land, the Himachal Pradesh government led by the Bharatiya Janata Party (BJP) drafted its own regularisation policy, and close to 1.65 lakh rights holders filled out forms with the revenue department hoping to finally get titles over the forest land.

The policy, however, was bound to fail in the face of the powerful Central conservation laws barring forest land diversion. Thus, the FRA , which would have an overriding effect, was enacted to provide rights to such occupants. After Parliament enacted the FRA in December 2006, and it came into force a year later, the Himachal Pradesh government announced its implementation in the tribal areas.

In 2009, the then Chief Minister Prem Kumar Dhumal of the BJP wrote to the Ministry of Environment seeking exemption for the State from mandatory consent of the gram sabha as part of FRA compliance for diversion of forest land under the 1980 Forest Conservation Act. Clearly, the government was not interested in using this law to provide rights to people but was only worried about the hurdle it posed for development projects.

The question of the applicability of the Act to Himachal has been brought up repeatedly in meetings of the State Level Monitoring Committee set up under the FRA. The argument of the high-level officials is said to be that there is no need for the Act in Himachal Pradesh because the forest and revenue settlements carried out in the State have ensured that “there are no restrictions imposed on customary uses of land” and that all rights have been “settled”.

This reasoning, however, fails to explain why more than a lakh claimants applied under the 2002 policy. It also fails to explain the cases of “illegal occupations” present for decades in the revenue records in every single district of the State.

“It was after several clarifications from the Union Ministry of Tribal Affairs, the nodal agency monitoring the implementation of the Act, that irrespective of earlier settlements the process under the FRA was mandatory, the implementation in Himachal moved a few inches ahead,” said Akshay Jasrotia of the Himachal Van Adhikar Manch.

However, in April 2015, the faith of forest dependents was shaken further when the High Court in Shimla ordered the removal of encroachments on forest land. The State government used the forms filled in 2002 by occupants to help the court identify the names of “encroachers”.

An “active” forest bureaucracy systematically portrayed these “encroachers” as large-scale horticulturalists who had grabbed huge parcels of land for their apple orchards. The same line was taken by Agriculture Minister Ram Lal Markanda, who said last year: “Individual rights are a problem, but we have no issues in giving community rights.” In reality, though, neither is being processed. On the question of indivual rights, he contended that the rich would grab all the land. This apprehension does not seem to be grounded in data; also, it overlooks the fact that the Act has a full-fledged process to prove eligibility of claimants with space for the administration to verify the same.

“Significantly, in the cases before the court, the majority of applicants hold less than 10 bighas of land,” said Prakash Bhandari, a forest rights activist based in Himachal Pradesh. An analysis of Kinnaur’s claimants carried out by Himdhara Environment Research and Action Collective and Zila Van Adhikar Samiti (Kinnaur) revealed that not only are most claims (96.5 per cent) for less than 10 bighas of land, close to 26 per cent of the claimants belong to the Scheduled Castes (S.Cs).

The State government failed to defend strongly in court the fact that many occupants may be eligible to file claims under the FRA and are protected by Section 4(5) of the Act, which clearly states that they cannot be evicted until the process under the FRA is complete.

While Himachal Pradesh has not seen evictions on the scale of other States, over the last three years incidents of encroachment removal by intimidation have come to light in the State. “Most of these cases are of poor S.C. families who are highly dependent on forest land and have rights as Other Traditional Forest Dwellers under the FRA,” said Vimla Vishwapremi of Parvatiya Mahila Adhikar Manch. Ironically, the mandate of the FRA, which is to protect forest-dwelling communities from the threat of eviction by freeing them from the label of “encroachers”, has been subverted to such an extent in Himachal Pradesh that people are scared to come out openly and file their claims.

Claims have been filed from six of the 12 districts in the State, namely Chamba, Kangra, Kullu, Mandi, Lahaul Spiti and Kinnaur. In the non-tribal districts, the FRA is perceived more as a forest diversion law than in terms of the critical rights granted by it.

A partial implementation has led to more than 1,900 cases being approved under Section 3(2) for local development facilities, while only 136 titles—seven Community Forest Rights (CFR) and 129 Individual Forest Rights (IFR)—under section 3(1) have been issued in the State as of November 2018.

Bureaucratic distortions

The fears of the Lippa’s tribal people came true when late last year the 47 IFR claims approved by the gram sabha were rejected by official members of the district level committee formed under the Act. “The unofficial members refused to sign the minutes finalised by the committee,” said Daulat Negi, chair of the District Council and member of the committee.

This decision came within a week of Ram Lal Markanda, who is also the Minister for Tribal Development, making a statement in the Assembly that the government would implement the Act in “mission mode”.

The Minister himself belongs to the Scheduled Tribe community from Kinnaur’s neighbouring Lahaul Spiti district, where 76 individual claims were accepted in 2017 when a Congress government was in power.

Lippa’s is the first case of rejection of claims in the State. “The reasons for rejection are legally untenable as they question the applicability of the Act. The law, as well as guidelines issued by the Ministry of Tribal Affairs, make it clear,” said Sushil Negi, ex-Vice Chancellor of Horticulture University and senior resident of Lippa.

For instance, one of the reasons is the “absence of evidence” regarding three generations of residence, which is not required even for forest-dwelling Scheduled Tribes under the law.

Tribal leaders from the region advocating action on pending claims said that the higher bureaucracy has already decided that the tribal people in Kinnaur do not “depend” on forest land for their “bona fide livelihood needs” as defined in the Act, and other officials are parroting this line.

“The Act makes it amply clear that ‘bona fide livelihood’ implies both subsistence and earning a cash income from the sale of surplus produce,” said Jiya Negi of the Zila Van Adhikar Samiti, Kinnaur.

This faulty reasoning was used by the district level committee to subvert due process and summarily refuse, not once but twice, appeals to examine Lippa’s files claims.

The district level committee in Kinnaur forwarded the matter of the 47 “illegal occupants” to the Forest Department for “necessary action” in July 2019. The Forest Rights Committee (FRC) Lippa moved the High Court and got an interim stay on eviction. The claimants have reason to be apprehensive given that there is an impending threat of eviction of “rejected” claims in an ongoing Supreme Court case. If Lippa’s rightholders have to face eviction, then the FRA will continue to be a non-starter in Himachal Pradesh.

A matter of dignity

Lippa’s forest rights struggle is unique also because the community has been engaged in a court battle since 2011 at the National Green Tribunal, where it challenged the grant of forest clearance to a hydropower project without the mandatory consent of the gram sabha.

The petition raised the issue of adverse impacts of the project on the local ecology, economy, society and culture. In 2016, the Tribunal directed that rights be settled under the FRA before proceeding on diversion of forest land. Today, despite the approval of the CFR, the gram sabha consent is still pending as the company is ready to begin construction work on the 130-megawatt project.

It is conjectured that the CFR approval was rushed by the administration because of a Shimla High Court interim order in a case where the Army was pressing for 40 hectares of forest land belonging to Lippa village to set up an arms depot. The proposed site of the depot, Tsering Thanga, is sacred to Lippa’s people, and the court had ordered that customary rights be settled at the earliest.

Today, both the IFR and CFR claims of Lippa are in limbo and the village continues to be embroiled in court cases.

Gopal Singh, 67, a retired soldier and one of the 47 IFR claimants from Lippa, said:“People are tired of making trips to the court and the district level committee’s office. Who else do we have to beg in front of?” Back at his home, Chhokit Lamo, his wife, had just separated the seeds from wild apricots and dried them out in the sun. Apricot pulp is mixed in a big drum with fallen apples from last season to prepare the local brew. The kernels from the shelled seeds will be cold-pressed to draw wild apricot oil, part of the local diet and sold commercially.

The political and bureaucratic class in Himachal Pradesh, a State which scores highly on several socio-economic indicators, has used the “our-people-are-better-off-compared-to-other-States” argument to dismiss people’s eligibility as “forest-dwellers”. It has done so by not just overlooking provisions of the law but also systematically de-legitimising the criticality of forest land in the lives and livelihoods of vulnerable communities. The onus of proving “eligibility” now lies with the actors of the State, whose job is to uphold the law and constitutional principles in favour of the people. Do they have what it takes to support people to access the FRA?

Manshi Asher is associated with Himdhara Environment Research and Action Collective based in Himachal Pradesh.

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