State governments dilute Forest Rights Act, threatening forest communities

Change of Forest Rights Act in three states will hit forest-dwelling communities hard

IN MAY-END, Maharashtra, Odisha and Chhattisgarh, where over one-fourth of India’s tribes live, changed a law meant to protect them. They modified the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA, threatening to make the forest-dwelling communities even more vulnerable.

On May 18, Maharashtra governor Bhagat Singh Koshyari, using his powers under Schedule V of the Constitution, notified an amendment in Section 6 of FRA. Now, a divisional-level committee would serve as the appellate body to examine people’s grievances. As per the government, the change would help serve justice to tribal people whose individual or community rights have been rejected by the district-level committee.

Creation of the new appellate body has taken many by surprise because under the FRA provisions, a state-level monitoring body already exists to oversee the process. “On several occasions, state-level bodies

have asked the district-level committees to review their decisions. It’s a different matter that statelevel committees, which are supposed to meet once every two months, do not meet. Creating another body will only complicate matters,” says Shomona Khanna, a Supreme Court advocate and former legal counsel of the Ministry of Tribal Affairs (MoTA). “It will also reduce the claimants’ ability to approach higher courts to challenge the decision of the district-level committee, as the courts would hold that an appellate body has already rejected the claim,” she adds.

More worrying is that the amendment applies only to areas covered under the Panchayats (Extension to Scheduled Areas) Act, 1996, (PESA). “The spirit of FRA was to take the provisions of PESA, such as gram sabha’s ownership over forest resources, to non-scheduled areas. Now, scheduled and non-scheduled areas will be treated differently,” says Khanna.

Forest rights experts say the state’s decision to amend

FRA may have been driven by an affidavit by Wildlife First, a conservation advocacy non-profit and petitioner in an ongoing case in the Supreme Court. On February 13, 2019, the apex court had ordered the eviction of tens of thousands of tribal people across 16 states whose claim as forest-dwellers were rejected under FRA. Accepting procedural lapses, state governments started to review the rejections suo moto. But such a process has no legal basis under FRA, Wildlife First stated in its affidavit.

“In a way, the decision to create a body to review rejections shows that Maharashtra agrees with the petitioner’s rationale. This is despite the fact that MoTA has filed an affidavit stating that the suo moto review is a procedural decision for ensuring natural justice and has no bearing on the judicial process under FRA,” says a forest rights expert who did not wish to be named.

POWER SWITCH

Soon after Maharashtra, the Odisha Forest and Environment department issued a notification on May 21 appointing the as the forest settlement officer, who would inquire into and determine the “existence, nature and extent of any rights or privileges alleged to exist in favour of any person”.

The move overturns FRA’s democratic process. Under its three-tier process, a claim is filed at the gram sabha-level committee, which goes to the sub-divisional committee and finally to the district committee, which accepts or rejects it. These bodies had representatives from forest, revenue, tribal and panchayati raj departments. The move would create conflict with FRA.

Experts say the step was taken to use the compensatory afforestation fund (CAF). “Odisha received the highest amount under the CAF

Act to carry out compensatory afforestation. The notification will make it easier for the forest department to notify compensatory afforestation areas as reserved forests by bypassing the rights recognition process laid under FRA,”

says Giri Rao of Vasundhara, a Bhubaneswar-based forest-dweller rights non-profit. As per the CAF

Act, any land over which compensatory afforestation is done must be notified as a reserved or protected forest. “If the idea is to just notify new areas as forests then the government should amend relevant provisions under the Indian Forest Act, 1927, and the respective state forest Acts to incorporate the rights recognition process. To give all the powers to the forest settlement officer is regressive,” says Tushar Dash of Community Forest RightsLearning and Advocacy, a group of FRA activists and researchers.

FRA VIOLATED

On May 31, Chhattisgarh also amended the law. It made forest department the nodal agency for recognition of community forest resource rights. These rights are given collectively to the gram sabha and come with the power to conserve and manage forests by the village. The decision completely violates the provisions of FRA, under which a state’s tribal department is the nodal agency. This drew strong criticism and the state government withdrew the notification within 48 hours.

Almost 14 years after FRA was enacted, its implementation remains far from satisfactory. Data with MoTA shows district-level committees approved only 34 per cent of the 4.2 million claims filed till January 2020. About 42 per cent of the claims were rejected, while the rest are still pending. The Supreme Court’s order to evict tens of thousands of tribal people has been stayed after nationwide protests. However, it strengthens people’s belief that forest-dwellers would pay the price for government’s inability to implement the law properly.

IN FEBRUARY 2019, APEX COURT ORDERED EVICTION OF TENS OF THOUSANDS OF TRIBAL PEOPLE ACROSS 16 STATES WHOSE FRA CLAIMS WERE REJECTED