Forest Rights Act, 2006: Promise Delivered Or Just A Hoax?
Authored By - Sparsh Peter
Institute: LLM student, TERI School of Advanced Studies
The most pressing concern in the arena of development for a third world country is the opportunity cost that a select few citizens have to pay. The losses they incur financially, religiously and emotionally are immense, and the credit they receive is zilch. The effort of a nation to reach Pareto Optimality, which can be defined as – “… an economic state where resources cannot be reallocated to make one individual better off without making at least one individual worse off.”, may make the one that is worse off, even worst, and the one that is better off, flourishing.
Such is the case that the Forest Dwelling Scheduled Tribes (FDSTs) and the Other Traditional Forest Dwellers (OTFDs) have been going through since the advent of law and power in India. But, the depressing part of the Pareto Optimality theory in the Indian context, is the exploitation, non-recognition and ill-treatment is all that have been at the platter for the OTFDs and FDSTs and these Traditional Dwellers were the ones who were made worse off to make others better off.
This research paper focuses on the factors that have led to the enactment of the Forest Rights Act, 2006 and the impact of the FRA, 2006 on the OTFDs and FDSTs.
Statement of Problem
While the FRA, 2006 can be considered the most progressive of the legislations of the 21st century in India, it still has a long way to go. This “long way” is the problem that needs to be acknowledged, catered to, and addressed.
Background and attitude of the rulers and forest-related legislation: A brief history and an overview of the pre-colonial, colonial, and post-colonial legislation. (Rangarajan, 1994) (Guha, 1983) (Sarkar, 1982) (DeSilva et al. 1979)
Factors that led to the enactment of the Forest Rights Act, 2006: The following authors discuss the social, economic, and rights based theories that led to the enactment of the FRA, 2006 (Leftwich, 2007) (Bose, 2010) (Chandra et al. 1988) (Gadgil, 2008) (Ghosh, 2007) (Dubey, 2009) (Madhusudan and ShankarRaman, 2003) (Rangarajan, 1996) (Khare et al., 2000) (Kundan et al., 2013)
The performance of the FRA and comments related thereto: The following authors give their opinions about the performance of the FRA, 2006. (Ramnath, 2008) (Bose, 2010) (Rudolph and Rudolph, 2008) (Leftwich, 2007)
FRA, Poverty Alleviation, and Institutional Reform: The following authors provide an insight into the socio-economic aspect of the FRA. (Brinks, 2006) (Springate et al., 2008)
While there is immense literature critically evaluating the FRA, 2006, not much is available on the way forward, or the strengthening of the FRA, 2006, to be able to achieve what the preamble of the FRA promises.
Objectives, Research Questions and Methodologies
Objective: To gain an in depth understanding of the FRA and evaluate its performance, and make suggestions on the related aspects.
RQ1: What situations led to the enactment of the FRA, 2006, and how the FRA, 2006, has been doing so far.
Methodologies: The method used to achieve the objective is a doctrinal one. References from government documents, research papers, journals, and books would be used to derive insights relating to the object.
A Background of the Attitude of the British and the Forest Related Legislations
Pre-British times were not idyllic, and there were numerous ways in which state laws affected the forested areas. In order to increase profits and maintain military authority, pre-British governments frequently sponsored the clearing of trees. The extent to which the native populace was kept out of areas of special interest to the ruling and landed classes probably made Sindh and Awadh remarkable. States generally argued that they had first rights to some commercially valuable goods. Significant efforts by various later rulers should not be diminished by the political division of the Mughal empire. However, in general, they were more focused on reclaiming land from the jungle than on restricting access or limiting the extraction of forest products. (Rangarajan, 1994, p. 152)
The advent of the British and their pattern of forestry was manipulative. The local population was either kept out or included in a regime of control. In any case, the larger British interest in revenue and timber was crucial. (Rangarajan, 1994, p. 161) The Forest Act of 1865 was the first step towards establishing a law of property for British India's forests, but its provisions quickly sparked a heated discussion among officials. (Rangarajan, 1994, p. 162)
The forest communities had a strong response to this gradual diminution of "rights" and the ensuing loss of control over their natural resources. There have been uprisings in various tribal areas since the beginning of forest administration that have been centred on the issue of forests. These revolts, which attempted to restore a 'golden past' where the tribal roamed freely in his forest habitat, were swiftly crushed by the colonial state. Nevertheless, they recurred throughout the period in almost all tribal areas, where "forests have always been the fortress of social movements against successive governments" (Guha, 1983, p. 1884) (Sarkar, 1982, p. 19)
Man's alienation from the forest can be considered synonymous to the main producer's alienation after being cut off from the means of production, which is something Marx discusses. Because before British interference, adivasis and other forest residents "were free men, possessing the means of production." (Guha, 1983, p. 1885) (DeSilva et al. 1979)
The post-colonial era of forestry has been at the expense of the forest communities, the state's monopoly rights are explicitly asserted. The "national interest" is used to justify this exclusion in order to prevent the "country as a whole" from losing a "national asset" due to the "accident of a village being situated next to a forest." (Guha, 1983, p. 1888) Post-colonial policy has remained characterised by the unthinking acceptance of colonial standards, particularly with regard to the takeover of state monopoly rights. There have been innumerable instances of unrest by the tribes, but the state’s reaction to such unrest has been to suppress such movements by the use of force, as was the case of the Gua firings of 1980. (Guha, 1983, p. 1891)
One thing that could be established from the above-mentioned study of the forestry regime of India, is that, in all the cases. All that was achieved, was at the expense of the forest communities. They have been deprived of their rights for a very long time.
Factors that led to the enactment of the Forest Rights Act, 2006
Policies develop in particular contexts. The history of this act, which documents an increase in the denial of tribal rights and development, provides a broader perspective. Assuming that human political interactions must be studied sequentially, as life is lived, rather than taking a snapshot account of those interactions at only one point in time and in isolation from the rule structures (institutions) in which they occur, historical institutionalism is sensitive to historical legacies and to cultural considerations in shaping and sustaining institutions. (Leftwich, 2007) (Bose, 2010, p. 6) In truth, the history of the tribes and other forest dwellers that live in this region of South Asia is one of long-standing exploitation and extortion, which peaked in intensity during the time of British colonial control. (Bose, 2010, p. 6) (Chandra et al. 1988) (Gadgil, 2008)
At the onset of the post-colonial era, the STs have been provided with constitutional safeguards under the fifth and sixth schedules, which enable the Governors to determine which areas to be Scheduled. (Ghosh, 2007) (Dubey, 2009) (Bose, 2010) After independence, however, when the unsurveyed community lands, under the Princely States, zamindars, and private owners were transferred to the Forest Department through blanket notifications declaring them to be "deemed" reserved or protected forests, the deprivation of the tribals and the issue of non-recognition of their rights to land and forest resources worsened. Tribals and forest inhabitants faced new dangers as independent India advanced towards industrialization and progress, turning them into puppets ready to be slaughtered on the altar of "development" and "modernization." (Bose, 2010, p. 7)
Through its various laws for forest conservation, the Indian state has usurped tribal peoples' lands, which has made them feel threatened. A powerful conservation lobby made sure that the colonial legacy of a regimented forest service was given the responsibility of guarding India's biological diversity after independence. The Indian Parliament started to actively get involved in creating laws and policies to safeguard the environment in the 1970s. There was a need for protection to resume with renewed vigour due to the serious concern over the tiger's decline in India. (Madhusudan and ShankarRaman, 2003)
The Constitution was amended in 1976 to include clauses that placed obligations on the state and the people to protect the environment. Thereafter, numerous national parks and sanctuaries were announced in an effort to safeguard India's wildlife and habitat. In order to provide a safe and healthy environment for the nation, the Department of Environment was founded in India in 1980. The Ministry of Environment and Forests (MoEF) was subsequently upgraded and established in 1985. The tribe’s population had notably expanded, as had its concurrent need for forested land and forest produce, while the cause of conservation was being championed with increasing vigour. The access of the traditional landowners was becoming more and more limited. (Bose, 2010, p. 7) The access to the land that had been provided for the traditional users of the land for millennia was becoming more and more restricted. These folks were becoming more and more regarded as "encroachers." The non-use value of species and their habitats in a region overrode considerations of their use values to local people thanks to a strong environmentalist push. (Rangarajan, 1996)
According to the majority of socioeconomic statistics, rural inhabitants in India who live near or in the forest continue to be among the poorest of the poor. About 200 million of the approximately 300 million people (or 60 million households) in India are considered to be entirely or partially dependent on forest resources for their subsistence. (Khare et al., 2000)
The idea of democratic decentralisation of natural resource control is widely accepted in the literature and among policymakers. Few decentralisation measures, though, have resulted in greater democratic management of natural resources in emerging nations. The Recognition of Forest Rights Act (RFRA), 2006, was passed in India as a consequence of democratic processes motivated by forest dwellers' demands for the recognition of their rights to the land. Through the granting of rights to those who rely on the forest, the FRA constitutes a political, demand-based initiative to change forest governance. The joint forest management (JFM) programme, a more conventional state-initiated decentralisation initiative, is still run in India. (Kundan et al., 2013, abstract)
The performance of the FRA and comments related thereto.
One wonders if the government's FRA initiative is primarily a populist one. Some think it's primarily a political ploy to divert attention from its development shortcomings and place it on its dedication to democracy and human rights. This is crucial in an era of globalisation when India must demonstrate, both nationally and internationally, its care for and dedication to the misery of the poor and marginalised elements of the population in addition to its pursuit of higher economic growth. (Ramnath, 2008) The sceptics go on to claim that with India clearly on the path of development, more 'development' projects for mining, dams, the creation of special economic zones, etc., will be considered and implemented, which can only mean that there will be more cases of eviction, which will further expropriate and impoverish the non-elite rural people. (Bose, 2010, p. 25)
On the other hand, other people believe that the FRA is an admirable and uncommon example of politically marginalised groups, such as the poor and tribal people who depend on the forest, obtaining a concession from the political elite. It might be a sign that India's politically engaged poor are gaining power and are better equipped to protect and expand their autonomous zones within the country's political economy. Their ability to maintain and protect both their private and communal property, which is essential to their livelihood, will play a significant role in determining their economic security or pauperization in the coming years. (Bose, 2010) (Rudolph and Rudolph, 2008)
The FRA’s fruitfulness is akin to the legislations that come as a package deal, like the PESA, 1996; the NREGA, 2005; and the LARR, 2013.
The FRA's contents have a significant impact on the lives of India's tribals and forest inhabitants. At the same time, it must be acknowledged that the Act won't, on its own, end poverty or improve the situation of India's marginalised forest dwellers. It is unquestionably a historic piece of law that requires other unofficial entities to support it. These non-formal institutions might cover gaps and boost the effectiveness of the official ones. (Leftwich, 2007)
FRA, Poverty Alleviation, and Institutional Reform
The implementation of FRA is divided into 4 levels: (i) the Gram Sabha; (ii) Subdivisional Committees; (iii) District Level Committees; (iv) the State Committee. The problem is the dearth of fundings. The Act is in oblivion as to how the rights need to be implemented.
There are innumerable number of inconsistencies that prevail between the FRA and the pre-existing legislation. (Brinks, 2006, p. 225)
Section 13 of the FRA, states: “save as otherwise provided in this Act and the PESA, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”, this confuses the understanding of the FRA as the provisions mentioned in the FRA are supposed to supersede the other legislation.
Conflict with the forest departments is unavoidable, especially when people strive to manage their community forests in accordance with their own laws and exert the authority granted to them under Section 5 to safeguard wildlife, forests, biodiversity, etc. It is reasonable to anticipate that the MoEF will attempt to persuade the MoTA to provide instructions on how these rights ought to be used. The only task for which MoEF is particularly equipped is to identify crucial wildlife areas inside national parks and sanctuaries, which is a consolation. They have already demonstrated the game they were trying to play with that power, and the MoEF secretary has been served with a notice for violating parliamentary privilege for publishing guidelines and procedures for designating vital wildlife habitats. (Springate et al., 2008)
The FRA has anticipated improvements in the lives of the poor and marginalised communities dependent on the Forest produce, which include, freedom from extortionist behaviour in terms of rent, livelihood vulnerability, forest management rights, incentivisation and land-based investment, legal forest rights, and cultivation rights.
All of the FRA's goals will only be realised provided a number of other conditions are met: acculturation of a reoriented role by the forest bureaucracy from the top right down to the level of the forest guards; mechanisms ensuring better coordination between the Centre and the states in overseeing the implementation of the Act; mechanisms ensuring better coordination between the nodal ministry (MoTA) and other related ministries and departments; and availability of reliable land records for providing a suitable basis for processing claims and vesting rights.
Extending the reach of judicial intervention, as in most of the displacement cases, the judiciary does not speak in favour of the people being displaced. They consider it the forte of the government and leave it to them in the name of “public purpose”. The purpose may or may not be as much for the public, whereas the “public”, here, the forest dwellers, are lost in transition.
Providing rehabilitation and resettlement habitats to those ousted from their own lands so as to benefit those alienated from their own land. These areas should be designed to help them settle well and have good amenities. Most of the time, we see these displaced FDSTs and OTFDs settle for less, as the areas provided for resettlement are not up to the mark and have the worst living conditions available.
The government faces immense competition pressure and is in a rush to attract investment, so much so that they forget to do the due diligence on their part and educate the forest dwellers about the long-term impacts and the resettlement schemes. The due diligence efforts should be top priority. As we tend to claim the lands of the people who have been settled through generations, it becomes important to not treat them as “encroachers” on their own land and treat them like humans and not objects that are causing hindrance in the process of satiating the urge of a big developmental project.
The turbulent history of the Act demonstrates the divisions between the pro-tribal lobby, which has hailed the legislation as a turning point in the long struggle of tribal people and other forest dwellers, and environmentalists, conservationists, and the MoEF, who worry that the Act will spell the end for efforts to protect our natural resources. It is indisputable that a number of the Act's provisions were not written with the negative effects of their implementation on conservation in mind. For instance, the advantages of the Act have been extended to other traditional forest residents in accordance with the JPC's recommendations. (Bhullar, 2008)
Necessary changes must be taken or else, the long-standing vested interests that have long taken advantage of India's marginalised forest-dwelling communities and its forest wealth will continue to spread their roots deeper and have a negative impact on the otherwise promising Act. It's intriguing to see how evenly placed the optimism against pessimism argument is. (Bose, 2010)
The FRA, 2006, needs to modified in a manner so that it is not contradictory to other legislation related to land rights or land acquisition. FRA, 2006, mostly looks like lip-service than something that has truly been worked upon, or rather, there is an absence of political will to really acknowledge and cater to the issues of land rights of the FDSTs and OTFDs. The Social Impact Assessment provided in LARR, 2015, needs to be taken seriously to allow the FRA, 2006, to work in a better and non-contradictory manner.
While we do understand that there is a need to develop certain areas and reserve certain areas for the community as a whole, but, we also do need to keep in mind that the Traditional Forest Dwellers should be treated like humans and not as mere objects that can be just moved around and discarded according to the whims and fancies of any new legislation that is passed. It is important to take these communities into confidence and arrange rehabilitation and appropriate remuneration, if in case there is an “absolute” need to uproot the Forest Dwellers. The government should work towards seeking help from the Forest Dwellers in maintaining a well-balanced ecosystem, as they have been living in harmony with the forests for generations and understand the basics of how the forests need to be used and preserved while not randomly exploiting it.
It is us that have been non-judiciously exploiting the forest to monetize every inch of it, and now we are crying foul and pretending to save the forest only to displace those who have made the forest their abode.
We should persevere to let these “have nots”, have, and enjoy the fundamental right to life enshrined in the Constitution; to give them a life of certainty and dignity and not displace them, while leaving them no choice but to fend for themselves and forcing them to live a life of despair and hurt.
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