The State versus gram sabhas
Or why the Forest Rights Act was never implemented efficiently
The Supreme Court’s sudden orders on the eviction of potentially 1.89 million tribal and other forest-dwelling families and its stay following a review petition has refocused attention on how poorly the Forest Rights Act has been implemented.
The 2006 law was meant to legally recognise the rights of tribals and others over forestlands they have traditionally inhabited. This included not only rights to live on these lands but also to protect forests and sustainably utilise the resources that these lands generate.
As the Union government admitted before the Supreme Court on February 28 while pleading for a stay on evictions, even the recognition of primary rights to inhabit these lands has been done so badly that many rightful claimants have been refused land titles.
In the court, the Union government said it had been asking the states for a while to address the “high rejection of claims, noncommunication of rejection orders, lack of reasons in the order (rejecting claims by tribals and others), raising of frivolous objections etc.” It said that many of the so-called rejections that states claimed on their records were illegal and incorrect. The Union government admitted that in some states, the forest officials had evicted tribals without allowing them to appeal, as the law requires.
A detailed analysis by Land Conflict Watch lists the impediments states put in forms of additional conditions and regulations to deny claimants their legitimate rights. These included putting extra-legal and onerous burdens on the poor to prove their claims, such as providing documents that are more than 75 years old or rejecting claims without giving people the chance to either present their case, as required by law, or to go in appeal. The law permits two levels of appeal if the rejection occurs at the village council level.
The Supreme Court case filed in 2008 that led to the controversial interim eviction order was never meant to address these systemic lacunae to begin with. The petitioners in the case — select wildlife groups and some retired officers — had originally pleaded that the law itself is against the provisions of the Constitution. One of their pleas was that only states could distribute land rights and Parliament did not have the competence to pass a law doing so. But during oral arguments over the last few years, the petitioners’ and the court’s focus shifted to the status of those whose claims had been rejected bypassing both the original challenge to the law and the question of whether the large- scale rejections were legally valid.
It is unclear if the Supreme Court intends to pursue the case for implementation of the law — the plea for which has been made by neither the petitioners nor the government — or tackle the question of who should be evicted. This would become clear only when the apex court hears the case again in July.
Experts on forest governance in India contend that the lackadaisical approach by the political leaderships, regardless of their ideologies, arose because the law provides for a fundamental shift in forest governance. It gave primacy to the communities. Under the Forest Rights Act gram sabhas (village councils) are made statutory authorities to regulate, protect and govern forests that they get claims over as commons. They also get veto powers to decide if these forestlands are then to be diverted by governments for any other purpose, such as setting up industrial projects or mining. Before the law was enacted, the forest bureaucracy and the political leadership had the sole discretion to decide which forest patches could be opened to such “non-forest activity”. For large patches, the Central government held the veto and for smaller ones the state government.
Government data for the past 15 years shows that above 90 per cent of proposals for diverting these forest patches eventually did get clearance. Once the Forest Rights Act came into force, allegations of corruption and proven cases of wrongful diversion of forest tracts through this process have emerged. “This fundamental shift [in the Forest Rights Act] is discernibly observed in the states where gram sabhas have used Community Forest Rights (CFR) and ownership of minor forest produce in particular,” says Tushar Dash researcher with CFR Learning and Advocacy group.
He pointed out that, “Gram sabhas have also used their authority to challenge actions by state agencies, forest departments such as illegal diversion of forest land, monoculture plantations, felling of good forest by forest development corporations and creation of land banks.”
With empowered village councils coming up against vested political-industrial interests, the Centre and state governments dilute their powers in several ways. At times gram sabhas were bypassed summarily, at others the claims over the lands were not entertained to begin with and in yet others the regulations were amended to not require consent.
Tribal access to usufruct from the lands hit hurdles under other forest laws. In several cases, the governments interpreted the regulations and provisions of the Forest Rights Act in tandem with other forestry-related regulations and laws to retain a deeper say in the management of the forests with the forest bureaucracy. As several cases highlighted either in litigation or by the media show, the attempt to prevent claims being filed or processed for rights over forests that governments want for industrial and mining purposes has also been a practice.