What the Forest Rights Act Provides For

The FRA is not a “welfare scheme for tribals.” Rather:

• It recognises the rights of forest dwelling communities (not just tribals) to land, water, forests and forest resources. These are rights over things they were already using, but which were not recorded earlier as a result of colonial forest laws. The issue concerns at least 15 crore people.
• Deciding who has which right is supposed to be done through a process starting from the gram sabha, or village assembly.
• The gram sabha not only has the power to decide on rights, it also has the power to decide on forest management and protection.

Why the FRA Will Be a Big Policy Issue

What does this mean? Crucially, it means:

No project can come up on forest land without 1) the consent of the affected gram sabhas and 2) the process of recording rights being completed, which again has to be done certified by the gram sabha, since it is the authority.

The FRA’s requirement was recognised by the Ministry of Environment and Forests in an order dated 30.07.2009 (often referred to as the “August 2009 order” or “2009 order”) that said that no project should receive forest clearance – for taking forest land – without providing gram sabha certificates that the FRA process is complete and that they consent to the takeover.

In April 2013, the Supreme Court held that this is what the FRA requires (without any reference to the 2009 order) in the famous Vedanta case.

But, the vast majority of large infrastructure projects in this country seek to take forest land, and infrastructure projects are at the centre of growing economic problems. Between 2010 and 2012, the NPAs of public-sector banks rose by 95%, with the power sector accounting for the largest proportion of those, and infrastructure accounting for 35% of all loans to industry. Power sector projects have been held up precisely on the issue of forest land takeover, where people have been protesting against both thermal power plants and linked coal mines. For instance, Essar’s massive power plant in Mahan, Madhya Pradesh is held up because of the linked coal mine is facing massive protest for attempts at illegal land takeover.

Why Should Forest Dwellers’ Consent Be Required for a Project?

Some have objected to giving communities a “veto” over a project that might be in the “wider interest.” This is not how things actually work. Forest dwellers are highly marginalised, frequently terrorised communities who have been at the mercy of the Forest Department and the state.

Everyone, including corporates, agrees in principle that rehabilitation and consultation should be done prior to takeover of land – but in practice the only way such things even begin to happen is if the community can threaten to withhold consent. Otherwise officials and companies have no accountability and ignore legal requirements. We have seen the results in the fact that the vast majority of those displaced over the last six decades received no rehabilitation at all and were simply driven out of their homes like animals.Naturally, brutal eviction of people results in even more protest.

What is Happening Around the Issue

In the rush to grant “speedy clearances”:

• The Environment Ministry has been ignoring its own 2009 order and granting clearances to projects without FRA compliance.
• The Cabinet Committee on Infrastructure – set up to speed up clearances – has repeatedly tried to get around FRA compliance by just directing that projects be cleared despite the illegality.
• In late 2012 the Prime Minister’s Office tried to get the 2009 order withdrawn (to make it easier to ignore the FRA). After press reports on the issue the government backtracked and issued an exemption for “linear projects” (roads, power lines, etc.) in Feb 2013. After the Supreme Court’s Vedanta judgment the Tribal Ministry recently (March 7, 2014) pointed out to State governments that even this exemption is illegal and that gram sabha certificates are required in all cases.
• Linked to this, the Forest Department has been trying to regain ‘lost ground’ in terms of its control over forests, with the increasing tacit support of the corporate sector. A new “Working Plan Code” was issued last month which essentially ignores forest dwellers’ rights to manage and protect forests under the FRA. Large amounts of money are being put into “Joint Forest Management”, which in practice is not participatory and is controlled by local forest officials (who hold all the key posts in the ‘participatory’ bodies). These committees have been used in various areas to engage in plantation activities on common lands, to split villages against community rights, and to try to take over community forest management powers from villages (as in Andhra Pradesh and Tripura).

And meanwhile:

• Increasing numbers of cases against illegal clearances for projects are reaching the courts and the National Green Tribunal. In several recent cases, courts have held against the project proponents after finding gross illegalities.
• A recent Society for Promotion of Wasteland Development study found that over a third of the country’s districts are witnessing protests and conflicts around land takeover for projects, particularly in forest areas.
• Over the last ten years the Maoists have made grabbing of forest land and destruction of forest dwellers’ livelihoods by projects the centre of their activities.
• On the ground FRA implementation is still patchy and slow, due to resistance from the forest bureaucracy and corporate opposition in project areas.
• This has also led to increasing protests. Mass protest against denial of forest rights has been seen in Assam, Orissa, Maharashtra, Madhya Pradesh, Chhattisgarh, Jharkhand, Gujarat, Andhra Pradesh, Tamil Nadu, Kerala, West Bengal, Manipur, Arunachal Pradesh, Uttarakhand, Uttar Pradesh, Himachal, Karnataka and other States in the last few years.

In sum, the next government will be faced with an issue where there is a direct confrontation between the interests of India’s biggest corporate houses and large numbers of very poor but increasingly organised people. The FRA is hence going to be a crucial policy issue.