Subverting FRA

The Forest Rights Act recognises the indispensability of forest rights for the survival of tribal people and forest dwellers, but the NDA government is trying to undo this.

Iruligas, who were evicted from tribal settlements during the formation of the Bannerghatta National Park, staging a protest demanding title deeds to cultivate land at Bantanala forest area in Kanakapura taluk of Ramanagara district in Karnataka.

ONE of the landmark pieces of legislation enacted during the first tenure of the first United Progressive Alliance (UPA) government (2004-08), with the support of the Left parties, was the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which recognised the rights of forest dwellers and those dependent on forests for their livelihood. But instead of implementing what has come to be known as the Forest Rights Act (FRA) in the spirit in which it was enacted, Bharatiya Janata Party (BJP)-led State governments have been tardy in settling individual and community rights under the Act, according to data available with the Tribal Affairs Ministry. Moreover, new notifications issued and the law enacted by the National Democratic Alliance (NDA) government seek to undo whatever little rights have been guaranteed under the FRA.

A perusal of the data on the website of the Ministry shows that out of the claims received until April 2017, Odisha, Kerala and Tripura were among the States that distributed over 60 per cent of the titles; Jharkhand, Rajasthan, Telangana and Andhra Pradesh 50-54 per cent; Chhattisgarh, Gujarat and Madhya Pradesh settled less than 45 per cent of the claims; Maharashtra 30.93 per cent; and Tamil Nadu and Uttarakhand recorded nil settlement. Chhattisgarh rejected the highest number of claims, followed by Madhya Pradesh, Maharashtra and Karnataka. Kerala rejected the lowest number of claims.

NTCA notification

On March 28, the National Tiger Conservation Authority (NTCA) under the Ministry of Environment, Forest and Climate Change sent a note to all the Chief Wardens in the tiger range States directing them not to recognise the forest rights under the FRA in critical tiger habitats on the grounds that the guidelines for notifying such habitats had not yet been framed. The order violated sections of the Wildlife Protection Act, 1972, and the FRA. In fact, in 2007 the UPA government had, without applying its mind, notified all tiger reserves as critical tiger habitats. To date, the order has not been put up on the website of the Environment Ministry.

According to a statement issued by the Campaign for Survival and Dignity, “this order comes as a further attack on people’s rights. On the ground, forest officials have already begun to use this order to threaten and harass forest dwellers. In tiger reserves where rights were already recognised—such as in Simlipal in Odisha—forest officials have even demanded that recognised rights should be cancelled. This would be a double crime and a further atrocity.”

Brinda Karat, the Communist Party of India (Marxist) Polit Bureau member, wrote to Prime Minister Narendra Modi on April 11 pointing out that the notification itself was a serious violation of the legal rights of tribal people and forest dwellers in critical tiger habitats. She was a member of the Select Committee of Parliament on the FRA and had moved critical amendments to the Wildlife Protection (Amendment) Act, 2006, which were incorporated in the Act. In her letter, she pointed out that the Ministry and the NTCA had no jurisdiction over the implementation of the FRA, which was the domain of the Ministry of Tribal Affairs, whose directives, if any, had also to be in consonance with the Act; that under Section 38(0) of the Wildlife Protection (Amendment) Act, in which powers and functions of the NTCA have been defined, it was specifically mentioned that “no such directions shall interfere with or affect the rights of local people particularly the Scheduled Tribes”; and that Clause 38V (5) laid down that no conservation areas shall be so designated “unless the process of recognition of the rights of tribals and other forest dwellers is complete”. The letter also underscored that Section 3(1) of the FRA ensured that the rights of tribal people and other forest dwellers were applicable to all forest areas and the Act made no exception as such regarding critical wildlife habitats.

The order of March 28 was, therefore, a violation of the FRA. In fact, a specific provision in Section 4(2) of the FRA states that conditional to various provisions in the clause, the “rights of tribals and other forest dwellers may be modified and resettled” but only after the process of recognising and vesting rights is complete. The NTCA’s order was illegal, she wrote, adding that any government officer could be charged with violating the provisions of the Scheduled Castes & Tribes (Prevention of Atrocities) Act and the FRA, if forest rights were obstructed in such a manner. Brinda Karat had previously written to the Prime Minister regarding “illegal village forest rules” and the passage of the Compensatory Afforestation and Fund Management Planning Authority (CAMPA) Act despite “strong concerns of tribal organisations”.

She told Frontline that the FRA had proved to be of great historic value as it had provided security of resources and ownership to Adivasis. She said: “It is precisely because of its effectiveness that it is seen to be a barrier to the policies of handing over India’s natural wealth and resources to the present phase of the company raj. Even in the last years of the UPA government, it became clear that the lawmakers in Parliament saw the FRA as a barrier to their policies. As a result, a series of steps were taken then and are being taken now to dilute the FRA. The first direct attack is the rejection of claimants’ applications, which is extremely high. If you look at the data, you will find that 61 per cent of individual and 63 per cent of community resources claims have been rejected. We have been working through the Adivasi Adhikar Rashtriya Manch in almost every State and we have seen in our experience that either claims were rejected outright or accepted by giving land that is less than the claim.”

In the first few years of the implementation of the Act in Maharashtra and undivided Andhra Pradesh, the Manch found that the extent of land that a tribal family could keep well within the ambit of the FRA was not accepted. “Even while the process of verification was going on, we found forest lands being snatched away by forest officials. This was seen in Madhya Pradesh’s Ratlam district where we saw forest officials digging up the land ostensibly for afforestation,” Brinda Karat said.

In Chhattisgarh, the government made no effort to register claims in the Maoist-affected areas. In the entire forest region of mineral-rich Chhattisgarh and Jharkhand, the government deliberately did not give them the rights citing left-wing extremism.

There was great resistance from the Forest Department for the registration of community resources. “There were, as it is, lakhs of cases against Adivasis on minor issues for taking away minor forest produce. This was an area of power for the forest officials. So, issuing patta s [titles] meant giving up power,” Brinda Karat said.

Wildlife sanctuaries

The dilution began in the first term of the UPA. The Wildlife Protection Act was amended with a view to setting up the Tiger Conservation Authority without offering any protection to tribal people. Areas were arbitrarily declared sanctuaries without recognising the rights of the tribal people and forest dwellers. “We brought in 11 amendments to their amendments, which were accepted. I had to meet Mr [M.] Karunanidhi [Dravida Munnetra Kazhagam president], as the Environment Minister at that time was A. Raja [of the DMK]. We [the DMK and the CPI(M)] were supporting the UPA [then]. They had a relook at that Bill and we stated our position clearly. In spite of the protection given after this, the Tiger Conservation Authority started evicting tribal people. One of the main points in the amendments we proposed was that their rights had to be recognised in the forest and in community resources and a rehabilitation programme that they accept should be initiated. That was not implemented.”

In the 10 years since the FRA was enacted, both the FRA and the amendments to the Wildlife Act with regard to protection to tribal people have sought to be diluted, more particularly during the term of the BJP-led government at the Centre. In the Land Acquisition Bill, which the UPA government had brought in and the NDA government pursued, 13 Acts were exempted from the purview of the Act. The Left parties fought hard for the inclusion of these Acts, many of which had a direct bearing on forest rights. “Of those, the Coal Bearing Act is of direct relevance to tribal people as many coal-bearing areas are in tribal-inhabited areas. We fought against that exemption. Then land under the Railways was exempted and now they have extended it to infrastructure. A series of guidelines were made to exempt projects from environment clearance or gram sabha scrutiny. Smaller mines and small power projects were exempt from environmental and forest clearances,” she said.

There were two laws that were in direct conflict with the FRA.

The amendments to the Mining and Minerals (Development and Regulation) Act, 1957, “liberalised the entire process from reconnaissance [of minerals] and surveillance for mines”, Brinda Karat said. The checks that were required at different stages were removed. “The shocking thing is that no tribal consent is required for mineral mining. It is framed in such a way that the person whose lands under which the mines fall is required to give consent. If the person does not agree, it doesn’t matter. The government then acquires the land. The right to consent or dissent is not there,” she said. The manner and extent to which royalties would be shared was diluted. The amendments to the Minerals and Mining Act provided for a District Mineral Foundation (DMF), which was meant for the benefit of persons affected by mining operations. It had, she said, more “company representatives” than tribal representatives. Lease holders were required to pay only a percentage of the royalty. “Instead of giving 100 per cent equivalent of royalty to the DMF, the lease holders have to give one-third royalty or 30 per cent and that too to the foundation, which is populated by company representatives. It is a farce of a CSR [corporate social responsibility]. All these changes have been introduced after the FRA has been passed,” said Brinda Karat.

Tribal land

The second Act that the NDA passed was the CAMPA Act in July 2016. The Left parties and the Congress objected to it. A select committee was formed after it was passed in the Lok Sabha. Brinda Karat said that no tribal organisation other than those close to the Rashtriya Swayamsewak Sangh was allowed to present its views at the select committee. “In the name of afforestation, community resources can be given to the tribal people. Where are they going to raise forests? It can only happen on tribal land. They have marginalised the Tribal Affairs Ministry,” she said. The Act came up for special mention in the monsoon session of the Rajya Sabha where former Union minister Jairam Ramesh recalled the assurances made by the late Anil Dave that the gram sabha would be consulted before the formation of rules. A year passed but no consultation was held and no rules promulgated, said Ramesh during the special mention. “The rights and livelihoods of lakhs of families were under threat because of the manner in which the CAMPA law had been enforced,” he said, demanding that the draft rules be made available and debated before they were finalised.

While the BJP government at the Centre amended the Central laws and introduced new laws such as the CAMPA Act, some BJP-ruled States brought in amendments to State laws to make it easier to transfer tribal land to non-tribals (“Assault on tribal rights”, Frontline , November 25, 2016).

“The first government to tamper with the provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996, and the constitutional provisions guaranteed in the Fifth Schedule was the Jharkhand government, which brought in the Chota Nagpur Tenancy and Santhal Pargana Tenancy Acts. Following tribal outrage, the Jharkhand government was forced to drop an amendment on conversion of agricultural land for non-agricultural purposes. But it has not withdrawn the provision for conversion of tribal land into non-tribal land,” Brinda Karat said.

In Telangana, the FRA was violated by illegalising podu , or shifting cultivation. Podu was permitted under the FRA. Brinda Karat said while podu may not be the best form of cultivation or productive enough to meet the needs of a family, the government cannot stop shifting cultivation, as it was allowed under the FRA, until an alternative was provided. The government’s concern was that huge tracts of forest land would come under podu cultivation. She said that 700 CPI(M) activists had been arrested for resisting the government’s moves.

In bauxite mining areas of Andhra Pradesh, government orders had been “tampered with” to transfer tribal land on long lease without taking the consent of the tribal people. In the Polavaram project, which affected both tribal and non-tribal people, no consent was taken from more than 80,000 tribal families, she said.

Unholy alliance

“There is a concerted move to give full rights to commerce, industry and the Ministry of Environment and Forest to take over forests, minerals, other natural wealth resources, [and] water and completely marginalise the tribal people. The FRA is the biggest obstacle, also for environmental fundamentalists who have been dead against this Act in the name of animal-human conflict and who have never appreciated the role of Adivasis in environmental conservation. This is an unholy alliance,” said Brinda Karat.

Petitions are pending in the Supreme Court against the FRA. Two years ago, the court lifted the stay given by the Madras High Court against the implementation of the Act in Tamil Nadu. For nine years, there was no FRA in the State. In January 2016, the court issued show cause notices to State governments asking what they had done about the land for which the claims had been denied. This was in effect asking the governments to evict the tribal people from the land whose claims were rejected, Brinda Karat said.

The FRA recognised the indispensability of forest rights for the survival of tribal people and forest dwellers. The subversion of the Act, through direct and indirect means, will result in further marginalising the marginalised, in total variance with the much-touted sabka saath, sabka vikas motto of the NDA government.