Millions of people live in and near India’s forest lands, but have no legal right to their homes, lands or livelihoods. A few government officials have all power over forests and forest dwellers. The result? Both forests and people die. This Act recognises forest dwellers’ rights and makes conservation more accountable.
Why is this law necessary?
What are called “forests” in Indian law often have nothing to do with actual forests. Under the Indian Forest Act, areas were often declared to be “government forests” without recording who lived in these areas, what land they were using, what uses they made of the forest and so on.82% of Madhya forest blocks and 40% of Orissa’s reserved forests were never surveyed; similarly 60% of India’s national parks have till today (sometimes after 25 years, as in Sariska) not completed their process of enquiry and settlement of rights. As the Tiger Task Force of the Government of India put it, “in the name of conservation, what has been carried out is a completely illegal and unconstitutional land acquisition programme.”
What are conditions like in the forest areas?
Because of this situation, millions of people are subject to harassment, evictions, etc, on the pretext of being encroachers in their own homes. Torture, bonded labour, extortion of money and sexual assault are all extremely common. In the latest national eviction drive from 2002 onwards, more than 3,00,000 families were driven into destitution and starvation. In Madhya Pradesh alone, more than 125 villages have been burned to the ground.
The situation is so bad that the then Commissioner for Scheduled Castes and Scheduled Tribes, in his 29th Report, said that “The criminalisation of the entire communities in the tribal areas is the darkest blot on the liberal tradition of our country.”
Why were people’s rights not respected when these forests were declared?
The Indian Forest Act, 1927, India’s main forest law, had nothing to do with conservation. It was created to serve the British need for timber. It sought to override customary rights and forest management systems by declaring forests state property and exploiting their timber. The law says that, at the time a “forest” is declared, a single official (the Forest Settlement Officer) is to enquire into and “settle” the land and forest rights people had in that area. These all-powerful officials unsurprisingly either did nothing or recorded only the rights of powerful communities.
The same model was subsequently built into the Wild Life Protection Act, passed in 1972, with similar consequences.
Mistakes may have been made, but surely these laws are the best way to protect our forests?
It is not just people who have lost. The very purpose of the Forest Acts was to convert forests into the property of a colonial department; and when you convert an ecosystem into someone’s property, there will always be stronger claims to that property than conservation. To destroy a forest today requires nothing more than either a bribe to the local forest officer or an application to a committee in Delhi. The results include:
The loss of more than 90% of India’s grasslands to commercial Forest Department plantations.
The destruction of five lakh hectares of forest in the past five years alone for mines, dams and industrial projects;
The clearing of millions of hectares of forest for monoculture plantations by the Forest Department;
Recent proposals to privatise “degraded” forest lands for private companies’ timber plantations.
Moreover, the forest laws destroyed all the community management and regulation systems that had existed before, forcing people to choose between either abandoning the forest entirely or living as ‘criminals’ within or near it. To this day it is a criminal offence for you or I to plant a tree in a reserved forest; but it is legal for the Department to fell the entire forest so long as it has Central government permission.
What does the Forest Rights Act do?
The Act basically does two things:
- Grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the forest laws.
- Makes a beginning towards giving communities and the public a voice in forest and wildlife conservation.
Who is a forest dweller under this law, and who gets rights?
There are two stages to be eligible under this Act. First, everyone has to satisfy two conditions:
- Primarily residing in forests or forest lands;
- Depends on forests and forest land for a livelihood (namely “bona fide livelihood needs”)
Second, you have to prove:
- That the above conditions have been true for 75 years, in which case you are an Other Traditional Forest Dweller (s. 2(o));
- That you are a member of a Scheduled Tribe (s. 2(c)); and
- That you are residing in the area where they are Scheduled (s. 4(1)).
In the latter case you are a Forest Dwelling Scheduled Tribe.
What kind of rights do forest dwellers get under this Act?
The law recognises three types of rights:
No one gets rights to any land that they have not been cultivating prior to December 13, 2005 (see section 4(3)) and that they are not cultivating right now. Those who are cultivating land but don’t have document can claim up to 4 hectares, as long as they are cultivating the land themselves for a livelihood (section 3(1) (a) and 4(6)). Those who have a patta or a government lease, but whose land has been illegally taken by the Forest Department or whose land is the subject of a dispute between Forest and Revenue Departments, can claim those lands (see section 3(1)(f) and (g)).
There is no question of granting 4 hectares of land to every family. If I am cultivating half a hectare on December 13, 2005, I receive title to that half a hectare alone; and if I am cultivating nothing, I receive nothing. If I am cultivating more than 4 hectares without documents or a dispute, I receive title to only 4 hectares.
The land cannot be sold or transferred to anyone except by inheritance (see section 4(4)).
The law secondly provides for rights to use and/or collect the following:
- Minor forest produce things like tendu patta, herbs, medicinal plants etc “that has been traditionally collected (see section 3(1) (c)). This does not include timber.
- Grazing grounds and water bodies (sections 3
- Traditional areas of use by nomadic or pastoralist communities i.e. communities that move with their herds, as opposed to practicing settled agriculture.
Right to Protect and Conserve
though the forest is supposed to belong to all of us, till date no one except the Forest Department had a right to protect it. If the Forest Department should decide to destroy it, or to hand it over to someone who would, stopping them was a criminal offence.
For the first time, this law also gives the community the right to protect and manage the forest. Section 3(1) (i) provide a right and a power to conserve community forest resources, while section 5 gives the community a general power to protect wildlife, forests, etc. This is vital for the thousands of village communities who are protecting their forests and wildlife against threats from forest mafias, industries and land grabbers, most of whom operate in connivance with the Forest Department.
How are rights recognised?
Section 6 of the Act provides a transparent three step procedure for deciding on who gets rights. First, the gram sabha (full village assembly, NOT the gram panchayat) makes a recommendation – i.e who has been cultivating land for how long, which minor forest produce is collected, etc. The gram sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent. The gram sabha’s recommendation goes through two stages of screening committees at the taluka and district levels. The district level committee makes the final decision (see section 6(6)). The Committees have six members – three government officers and three elected persons. At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees, and if they prove their case the right is denied (sections 6(2) and 6(4)). Finally, land recognised under this Act cannot be sold or transferred.