The taproot of conservation justice

Context

  • Cutting down the Forests Right Act will only weaken the conservation regime and affect the rights of forest dwellers.

The Forest Rights Act (FRA)

  • The Forest Rights Act (FRA) is a piece of social legislation which aims to address the historical injustice that our forest dwelling communities have had to face for nearly 150 years by providing them with security of tenure over land for cultivation and habitation through individual rights.
  • It also provides access to a variety of resources through more than a dozen types of community forest rights.
  • The FRA also empowers forest dwelling communities to protect, regenerate, conserve and manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.
  • It has the provision for creating critical wildlife habitats within protected areas which currently is the strongest conservation provision among existing laws of the country.

Legal challenges

  • It is extremely unfortunate that the very constitutionality of the FRA was challenged in the Supreme Court in 2008 by about half a dozen conservation organisations.
  • The court has tagged many other cases including from several High Courts which are currently being heard jointly. The court’s order of February 13, 2019 since put in abeyance by its order dated February 28, 2019 highlights the very tardy implementation of the FRA by the State governments.
  • One of the key arguments of the petitioners has been that it is beyond the legislative competence of Parliament to enact the FRA as ‘land’ is a state subject.
  • Tenuous as this is, if this argument of the petitioners is accepted, the Wildlife Protection Act and the entire architecture of forest laws will have to be dismantled as ultra vires as all of them deal with ‘land’, including the Indian Forest Act and the Forest (Conservation) Act.
  • The February 13 order of the Supreme Court directs the eviction of lakhs of forest dwellers whose claims have been rejected under the FRA.
  • With recent media reports showing that many State governments have admitted to the Supreme Court that their implementation of the FRA has been incomplete and flawed — with due process not having been followed especially while rejecting claims — the misguided and unmeritorious nature of this whole legal challenge becomes very clear.

What the FRA is?

  • The FRA has been savagely criticised as a land distribution legislation, which it is not. The FRA very clearly states that forest dwellers who are either Scheduled Tribes or Other Traditional Forest Dwellers are only entitled to claim both individual and community forest rights through a clear process of submitting a claim and after its verification and subsequent approval or rejection. For the rejected cases, an appeal process has been outlined.
  • The FRA aims to only confirm tenure and access rights which in some sense the forest dwellers have been exercising de facto but under severe restrictions and control especially by the forest department. In fact, it is the failure of the state to settle pre-existing rights under existing forest and conservation laws that created the situation of historical injustice.
  • The FRA does not sanction any fresh clearance of forest, as individual rights over land will only be granted if the forest dweller was in possession of that parcel of land on December 13, 2005.
  • It also limits the extent of land that can be granted to the area that was occupied on December 13, 2005 and places an upper limit of four hectares per claimant for individual rights. These provisions are often overlooked or deliberately suppressed by those who criticise FRA.
  • The FRA, by design, has tremendous potential to strengthen the conservation regime across India by recognising rights of forest dwellers over land and community forest resources, a key factor for conservation to succeed as shown both by research and practice in many countries.
  • By democratising forest governance and conservation through the provision of rights and authority to local communities and gram sabhas for conservation and management of forests, the FRA will empower gram sabhas of the forest dwelling communities to halt the destruction of forests, as especially highlighted in the Niyamgiri case. Implementing the FRA in letter and spirit with empathy for forest dwellers will be a decisive step by India to achieve conservation justice.

Source:TH