Saturday, June 27, 2015

Forest Rights Act

On June 23, Prime Minister Narendra Modi directed the Ministry of Tribal Affairs (MoTA) to ensure that all States implement the Forest Rights Act (FRA) and grant land rights to tribals over the next two months. Mr. Modi’s announcement is welcome, but nevertheless surprising, as his government has come under scathing criticism for removing community consent clauses for land acquisition in the ill-conceived land ordinance bill.
Nearly 250 million people live in and around forests in India, of which the estimated indigenous Adivasi or tribal population stands at about 100 million. To put these numbers in perspective, if considered a nation by themselves, they would form the 13th largest country in the world, even though they cannot be depicted as representing any singular, monolithic culture. For this population, there cannot be any better news than the government’s willingness to recognise their customary rights and undo the historical injustice they have faced, as outlined in the FRA.
The directive to achieve this historical transformation in the next two months, however, shows a lack of understanding of what the process entails, and the factors that have prevented the proper implementation of the FRA since its passage in 2006.
One, the process of documenting communities’ claims under the FRA is intensive — rough maps of community and individual claims are prepared democratically by Gram Sabhas. These are then verified on the ground with annotated evidence, before being submitted to relevant authorities. The Gram Sabha is treated as a public authority under the FRA, and if the higher authorities under the law reject its claims, substantive reasons have to be provided for doing so. This exhaustive process is why the official diktat to implement the FRA so quickly lacks any understanding about the extent of the task and labour involved.
Second, the main factor inhibiting the FRA’s full implementation is the reluctance of the forest bureaucracy to give up control. The forest bureaucracy has misinterpreted the FRA as an instrument to regularise encroachment. This is seen in its emphasis on recognising individual claims while ignoring collective claims — Community Forest Resource (CFR) rights as promised under the FRA — by tribal communities. To date, the total amount of land where rights have been recognised under the FRA is just 3.13 million hectares, mostly under claims for individual occupancy rights.
Collective ownership

This deliberately narrow interpretation of the FRA is against the letter and spirit of the law, which seeks to undo historical injustices and return the forests to community jurisdiction. It also contradicts the estimates for forest area collectively used by tribal and other forest communities that are provided by government agencies themselves. The most important of these estimates is from the State of Forest Report 1999, in which the Forest Survey of India, using data from the 1991 Census, identified 32.198 million hectares of forest land inside revenue village boundaries. The inclusion of forest lands within revenue village boundaries reflects and legitimises the use, interaction and dependence of the village community on such forests.
Thus, all forest lands within revenue village boundaries would be eligible for recognition as community forest resources (CFR) under the FRA, and brought under the jurisdiction of Gram Sabhas. It should be noted that these numbers are highly conservative, as the data leaves out the States of Jammu and Kashmir, Manipur, Arunachal Pradesh, Nagaland, Mizoram and Sikkim, and ignores the forests collectively used by communities outside the revenue boundaries of their villages.
While these facts indicate a remarkably high potential for recognition of CFR rights, the actual recognition of these rights remains tragically low. The MoTA’s February 2015 status report indicates that the total area reported to be recognised under CFR is only 73,000 hectares, less than one-five hundredth of the CFR potential in the country.
This does not, however, mean that progress cannot be accelerated.
The government can start by recognising the role played in the FRA’s meagre implementation by the forest bureaucracy’s resistance as well as the acute lack of awareness of FRA’s community rights provisions in State administrations and forest communities. In almost all States, the Forest Department has either appropriated or been given effective control over the FRA’s rights recognition process. This has created a situation where the officials controlling the implementation of the law often have the strongest interest in its non-implementation, especially the community forest rights provisions, which dilute or challenge the powers of the forest department. Evidence from different States clearly indicates the forest bureaucracy’s efforts to stall or subvert the CFR provisions of the FRA.
If the government is serious about implementing the FRA, it should confront the forest bureaucracy and make it clear that any obstruction on their part is unacceptable. The little progress that has been made in implementation so far has been due to close coordination between tribal departments, district administrations and civil society.
There is a clear need to strengthen the nodal tribal departments, provide clear instructions to the State and district administrations, and encourage civil society actors. Without a strong political will, this historical transformation is unlikely to take place.
The Prime Minister has taken the first step. The strides that come after will need a strong follow-up with a dose of realism.
(Arvind Khare is executive director of the Rights and Resources Initiative, a global coalition engaged in forest and land policy reform across the world, including India.)

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