People's Democracy

Forest Rights Act and the Question of Encroachments

Archana Prasad

ON December 22, 2011, the parliamentary standing committee on social justice and empowerment has tabled its report on the implementation of the Forest Rights Act. The report summarises the action taken by the ministry of tribal affairs on the observations made by the committee in its report on the implementation of the Forest Rights Act in October 2010.

NEO-LIBERALISM BEHIND

LACKLUSTRE PERFORMANCE

The consideration of the replies by the ministry is especially important to remind ourselves in the current context that this act was the first legislation whose “government draft” was substantially restructured in the standing committee because of the intense pressure brought by the Left and democratic forces. It was thus “considered a strong law” that for the first time recognised that historic injustices perpetrated on the scheduled tribes and other traditional forest dwellers, and recognised their rights in the forests. At the time of the notification of the act, the government had set itself a deadline of December 2009 as the date for the completion of its implementation. But the lack of political will in implementing the act in its true spirit was evident when the tenth report of the parliamentary standing committee of October 2010 pointed out that “The momentum gathered around the act should not be allowed to wither, the pace of its implementation expedited and no laxity in implementation of the act either on the part of central government or the state governments should be allowed” (p 13).

However, the root cause for the lacklustre performance lies not merely in the lack of political will or ineffective institutional mechanisms of implementation, but the conflicting neo-liberal economic policies where the resource rich tribal areas are rapidly being opened up to corporate capital, especially in the mining sector. The reports of the standing committee should be seen in this context.

MISINTERPRETATION

OF PROVISIONS

One of the indications of the slow and unfair implementation of the forest rights act has been the rate of rejection of claims after initial screening. The standing committee noted that 31,49,269 individual claims were filed as of September 30, 2011. Of these, 28,08,494 claims were disposed off and 12,30,663 claimants, i.e. a mere 39 per cent of all claimants, got titles. The claims of 50.7 per cent claimants (i.e., 15,97,831 claims) were rejected --- a figure that continued to be high despite the concerns expressed by parliamentarians in the standing committee's report of October 2010. The committee had directed the ministry to conduct a study of sample Gram Sabha's to understand the specific cause of rejection and also direct the state governments to review all rejected cases. In its reply to the standing committee the ministry has stated that it wrote to the state governments asking them to record the reasons for rejections on July 15, 2010, but did not press them for the feedback. It also took the stand that review of cases is not permissible under the act once the claims have been rejected by the district level committees.

It is important to reflect on the causes of rejections in the light of these observations by the ministry. A study done by the Council for Social Development in 2010 noted that Other Traditional Forest Dwellers (OTFD) had been almost excluded from the implementation of the act because of the strict and conservative application of the 'three generations clause” under section 2(O) of the act. In most cases, they were being asked to produce documentary evidence for proving that they had been forest dependent for 75 years before 2005. Hence in Madhya Pradesh (a state with one of the highest number of rejections), 93 per cent of the OTFD claimants were rejected as of March 30, 2010. The exclusion of these communities has taken place not only because of the existence of the 75 years clause, but also because the evidence clauses of the act have been interpreted by the state governments. The act itself had made provisions for fourteen different types of evidences to be admitted as proof of being forest dwellers. However, the results of recent studies show a completely different picture. In most cases, state governments require that all claimants produce either a primary offences report or show their existence on the list of encroachers in order to prove they are forest dependent. In most cases, the claimants are not able to produce such reports as offences themselves are underreported due to the corruption of the lower level forest bureaucracy. In case of tribal claimants, the non-possession of ST certificates was also an important factor behind the denial of legitimate claimants rights. At the same time the standing committee also noticed in its on-the-spot study visit to some states that “pattas are being given to the scheduled tribes and other traditional forest dwellers to a lesser extent than what is under actual cultivation, boundaries are not being fixed properly and the land being recognised are not fit for cultivation” (p 41).

ENCROACHMENTS AFTER

THE FOREST RIGHTS ACT 

This limited recognition of rights and high level of rejections is designed to ensure that the state can reclaim the “encroached” forestlands. After the notification of the act, the ministry of environment and forests wrote to different state governments to exclude legitimate tribal/forest dwellers and other “ineligible encroachers” from eviction drives till their claims had been settled.

The information collected on ‘encroachments in forested areas’ after the notification of the act claims to have taken this factor into account. The first figures on recorded encroachments after the notification of the forest rights put “forest encroachments” at 17.94 lakh hectares in 2008 (an increase of 5.5 lakh hectares since 2002) as reported by the then minister of environment and forests in March 2011. This figure seems to have decreased to 10.69 lakh hectares in 2010 as per another reply submitted to the Rajya Sabha by the current minister in August 2011. This apparent and sudden reported decrease may be could have been attributed to the regularisation of encroachments under the forest rights act. But the progress under the act has not been so remarkable as indicated in the another reply to a starred question on March 14, 2011 where it was revealed that only 3.58 lakh hectares of forest land was regularised under the act in the 16 states. The available data do not include the state of Madhya Pradesh which reported approximately 1.8 lakh hectares of encroachments in 2008 (as per the reply of March 2011) but did not supply the requisite data to the ministry. Significantly, it is also the state with one of the highest rates of the rejection of almost 60 per cent of the claims. The latest report of September 30, 2011 claims that approximately 5.5 lakh hectares of land has been regularised. This means that only 1.92 lakh hectares was regularised under the act between March and September 2011 when two different ministers filed their statements in parliament.

Thus the discrepancy between the statement of the minister of environment and forests in March and August 2011 remains unexplained and cannot be necessarily attributed to the good implementation of the Forest Rights Act. Rather it may be explained by violations of laws in which various state governments are indulging. Reports of illegal evictions and plantations on cultivated forestlands without the settlement of rights have been especially common from the Central Indian states of Chhattisgarh and Madhya Pradesh. Some of these actions are instigated by the manner in which rights settlements have been carried out. In many reported cases, local forest departments have attempted to hijack the functions of the Gram Sabha in respect of recognition of rights. Functions of the forest rights committees have been often usurped by local joint forest management committees, leading to the violation of the spirit of the act.

At the same time, there are states which are not implementing the act in a proper manner. Most north-eastern states except for Tripura have an abysmal record as far as the implementation of the Forest Rights Act is concerned. States such as Mizoram and Nagaland have been stating that the land belongs to tribal clans and cannot be within the scope of this act.

However, the Left ruled state of Tripura has showed the way for not only the north-eastern states but the entire country where more than 60 per cent of the forest rights claims have been approved. This shows that the existence of strong and democratic organisations is a necessary condition for the effective implementation of the act and for the protection of the rights of the forest dependent people.