Erosion of Community Forest Rights in India Under The Forest Rights Act, 2006
**Stuti Rastogi
The Forest Rights
Forests serve as the cornerstone of the livelihood and cultures of millions of indigenous communities. Therefore, recognising their rights is essential for sustainable forest management, tribal economic development and safeguarding their cultural identity. To vest such rights in forest-based communities, the Government of India enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”). While the Act aims to legalize certain natural rights such as sustainable use of land, conservation of biodiversity and maintenance of ecological balance of the forest-dwelling Scheduled Tribes and other traditional forest dwellers (“OTFD”), the Preamble of the Act states that it also attempts to remedy the historical wrongs done to communities such as OTFDs who have been integral to the sustainability of the forest ecosystem.
From a rights-based approach, it deals with three major rights: individual forest rights, community forest rights (“CFR”), and community forest resource rights (“CFRR”). This piece, therefore, focuses exclusively on CFR under Sections 3(1)(b) and 3(1)(c), which includes rights of ownership, access to water bodies, biodiversity, pastoral lands, rights to traditional knowledge and other customary rights recorded or unrecorded under the FRA. CFRR, on the other hand, focuses on the management and governance of the land under Section 3(1)(i) of the Act. The potential of CFR can be understood by the UNDP Report on CFR, suggesting that India has the largest number of forest dwellers, which constitute about 16 % of India’s population and comprise both tribals and other communities. In light of this, this piece highlights some of the major loopholes in the implementation of CFR in India.
Looking at the Ground Realities
Although a landmark legislation, the Act falls short of a simplified implementation mechanism. Since its introduction, there has been an issue of incongruity with other legislations such as Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 (erstwhile “Forest Conservation Act”) and Wild Life Protection Act, 1972 (“WPA”), which, respectively, allow diversion of forest lands for non-forestry purposes and establishment of Protected Areas, including tiger reserves, etc. Simultaneously, this has also resulted in a tug-of-war between the Ministry of Tribal Affairs (“MoTA”), the Ministry of Environment, Forests and Climate Change (“MoEFCC”), the judiciary, the civil society and the bureaucracy. While the MoTA is the nodal ministry for FRA, MoEFCC serves as the nodal agency in the administrative structure for implementation of India’s environmental and forestry policies thereby creating recurring clashes between the two with respect to FRA. Discussed below, it is seen that the underlying challenges boil down to institutional issues, laxity of the authorities, disparities among the legislations and erroneous data records. Even the best-performing districts, such as Gadchiroli in Maharashtra, are biased against the CFR to protect mining leases and forest clearances. In response to a question in the Rajya Sabha, Minister of State, MoTA, Shri Bisheshwar Tudu stated that 1.13 million community claims have been distributed against the claims of 1.89 million with land spanning around 13 million acres to the CFR. While the data assures about 60% of settled claims, the ground reality of potential claims and granted claims could be different.
Analyzing the Implementation of the FRA
In the analysis of the above-mentioned data, numerous issues can be highlighted. Firstly, the claims are not addressed according to the legal mechanisms without accountability. As per the Forest Rights Act, 2006: Act, Rules and Guidelines (“Rules”), only Forest Rights Committees (“FRCs”) and Gram Sabha can receive, reject or modify any claim at Block, Panchayat, forest or range level. However, in numerous cases, claims have been illegally rejected by the forest guards. As seen in the case of Chittorgarh, the claim was rejected without tendering any written information of the same as is mandated by the Rules. This also bereft the claimants of the right to appeal under Section 6 of the FRA against the rejection of the claim, which is to be made within sixty days of rejection under the Act. The procedure for addressing the claims and their rejections involves a three-tier system, including Gram Sabha, Sub-Divisional Level Committee (“SLDC”) and District Level Committee (“DLC”) with admissible evidence mentioned under Rule 13. In the garb of the same, it is seen that many claims are arbitrarily rejected, citing a lack of these evidentiary documents, which ultimately puts the intent of the legislation to recognise unregistered OTFDs at stake.
Acknowledging the issue, in the case Action Research In v State of Gujarat, the Gujarat HC addressed the complexity of the documentation and paved the way for easier grant of rights. A survey in Kandhamal district (Odisha) also found that there is a general impression among the administration and the public that OTFDs are not covered under FRA.
Secondly, illegal manipulations in the records are another prominent issue. Under the FRA, FRCs are constituted by Gram Sabhas to receive and verify the claims, prepare the maps and record the findings. Surprisingly, in Chhattisgarh, patwaris (revenue officials) and forest guards were illegally included in the FRCs to manipulate the decision-making at the Gram Sabha level. ATREE’s report on Chhattisgarh expresses misleading numbers of the titles distributed. The data shows notable confusion between CFRR which concerns itself only with the conservation and the management of the land while CFR extends to the use of the land by the community for sustainable livelihood.
Additionally, numerous repeated entries were done for the same claim in a village. On a careful study, it was found that only 243 Gram Sabhas received community rights instead of the mentioned 1378. These discrepancies also shed light on the exaggerated span of claimed areas mentioned. While these are just a few estimation mistakes for a single state, when cumulatively seen along with the other states, they give a poor picture of the implementation of FRA.
Thirdly, it is seen that the Gram Sabhas, scheduled tribes and OTFDs are poorly aware of the law and their rights. The wrong interpretations by FRC members and foxy bureaucratic interference have disadvantaged the communities in understanding the procedures and the law. Even though certain states like Chhattisgarh have simplified the law with awareness campaigns and guidelines, only civil societies have been seen to play a significant role in such campaigns. Due to a lack of awareness, community rights titles are often not granted despite long time-lapse. The reasons cited for the same are the absence of committee members, lack of quorum, etc., to delay the process deliberately. Consequently, there are instances where the titles (patta) are given provisionally, citing these reasons.
Along with the social issues, there is friction caused by forest legislation such as the Compensatory Afforestation Fund Act, 2016 (“CAMPA”). Plantations and fencing of the forests done under CAMPA meddle with the community’s traditional rights and limit the area that can be declared a community forest. In case of diversion of forest lands for non-forest purposes under the FCA, 1980 community forests are susceptible to harm, especially after the FC (Amendment) Act, 2023, which allows more activities such as ecotourism, zoos, safaris on forest lands. An example of the same is the transmission line set to be established in Gadchiroli (Maharashtra) which diverts CFR land for forest clearance of almost 1675 trees contributing to a loss in income for the inhabiting community.
Learning from the Best Practices
From this perspective, FRA as a legislation falls short of the supporting factors that ensure its effective implementation. Even the best-performing states like Maharashtra and Odisha have struggled to ensure transparency and robust monitoring. However, innovative approaches can help mitigate these issues.
For instance, the creation of power centres in the form of Van Suraksha Samiti (Forest Protection Committees) as seen in Mendha Lekha (Maharashtra) could involve local people in the management to ensure adherence to the CFR procedures. Such committees will spread awareness and encourage active participation of women, particularly vulnerable tribal groups (“PVTGs”) and OTFDs. Moreover, following the examples of Maharashtra, Odisha and Madhya Pradesh, State legislations can strengthen the Gram Sabhas under the Panchayats (Extension to Scheduled Areas) Act, 1996 (“PESA”) by recognising them as “body corporates”. This would bestow legal recognition to the Gram Sabhas, enabling them to function as self-governing institutions under Article 243G of the Indian Constitution.
In addition, efficient record-keeping in digital formats by the forest and state departments has become crucial. The incorporation of GPS instruments can precisely measure land and resolve competing claims and rejections of CFR applications. A notable example of the same was seen in the Narmada district (Gujarat), where an NGO, ARCH created a mapping methodology using satellite imagery to create digital maps of the forested area. Furthermore, State Governments are also advised to take assistance from technical resource agencies such as the National Remote Sensing Centre, Bhaskaracharya Institute for Space Applications and Geo-Informatics (“BISAG”), Department of Science and Technology and other relevant research institutes.
To create awareness and capacity building, Tribal Research Institutions in the states can model training platforms similar to the Adi Prashikshan Portal launched by the MoTA. Such training programs would educate the stakeholders about their rights and duties further empowering the tribals and OTFDs to resist the bureaucratic hurdles within DLCs and SDLCs which are headed by the Collector, District Magistrate, etc.
Most critically, coordinated efforts like joint communication between MoEFCC and MoTA on environmental policies are essential to ensure the implementation of the FRA in letter and spirit. Similarly, the state governments, being primarily responsible for the implementation of the Act, must foster collaboration between the State Forest Department and the State Tribal Welfare Department.
In this context, proactive participation of the Government and the empowerment of self-governing bodies like the Gram Sabhas are vital to promote informed participation of the stakeholders in the decision-making process. Additionally, state-devised technological machinery must be employed to address land conflicts and ensure greater accountability and transparency in the implementation of the FRA.
** Stuti Rastogi is a law graduate from Dr. Ram Manohar Lohiya National Law University, with an interest in legal and policy research in environmental and technology laws.
Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.
