The Forest Rights Act

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Bringing Back the British Raj in Forests

Friends,

Behind the scenes, one of India’s most important areas of resource governance is being taken backwards. In the name of being industry friendly, the government is empowering one of India’s most corrupt and non-transparent bureaucracies. It is legitimising the absolute control these handful of officials enjoy over 23% of the country’s land area. Naturally, this will lead to more conflicts, more delays, and more scams.

150 years ago the British took control of this country’s forests. 87 years ago they passed the final version of the law that created the bureaucrat-controlled, licence and bribe driven, police state that governs India’s forests today.

Today the BJP wants to turn the clock back to the colonial era – much like the Manmohan PMO wanted to, and like the Rajasthan government’s plans for land acquisition. India’s poorest people are to suffer yet more of the brutalities that impoverished them in the first place. The one true reform in forest law in over a century is getting sabotaged in the name of “reforms.”

If you want to know the background to what’s going on, go to “What are Forest Rights?”

What Does the Law Say About Takeover of Forest Land?

Under the Forest (Conservation) Act, no forest land can be “diverted” for “non-forest use” without the permission of the Central government. Before the FRA, this was decided entirely by eight or ten officials in Delhi. The Forest Rights Act imposed two requirements on this process (upheld by the Supreme Court in the Vedanta case):

  1. People’s rights have to be recorded first, and this has to be certified by the assembly of all the residents of the affected village (the gram sabha);
  2. No forest land can be diverted without the informed consent of the affected gram sabhas (see below on why gram sabha consent is a good thing).

What Is the Government Trying to Do?

Neither the UPA nor the NDA was ever fully committed to the Forest Rights Act. Ever since it was passed, State and Central governments have systematically tried to bypass it when handing over forest land to corporates (for details see this timeline).

If you try to push through projects by acting like people don’t exist, is it surprising that they protest and go to court? Is there any point in then whining about “delays” and “obstructions”? But never mind common sense, because here’s what the BJP government is trying to do:

Proposed Change Status Legal or Illegal? Who Benefits?
Recycling a Nov 2012 report written by Pulok Chatterjee, Additional Secy to Manmohan Singh, which tried to bypass gram sabha involvement entirely when diverting forest land for projects Awaiting a fig leaf from the Law Ministry Illegal – in violation of Supreme Court judgment in Vedanta case and s. 5, 6(1) of the FRA Central forest officials, will make money from their absolute power to hand over land; corporates, who would not need to consult affected people
Prospecting for minerals exempted from FRA compliance Notified on July 4th Illegal – in violation of the FRA, SC judgment; being done despite Mar 7th letter by Ministry of Tribal Affairs pointing out that obviously you cannot just exempt yourself from the law Forest officials, mining companies
Supreme Court’s Central Empowered Committee – composed entirely of forest officials – recommends mining leases should be given stage 1 “in principle” forest clearance even without FRA compliance. Government supports recommendation. In court Illegal – another example of “exempting yourself from the law because you don’t like it” Forest officials, mining companies
Maharashtra govt and Centre trying to destroy one real example of tribal “development” in recent years: villages earning crores from collectively harvesting bamboo that belongs to them. State FD issues rules aiming to return control over all non-timber forest produce to forest officials. Nitin Gadkari and Prakash Javadekar jump in to save these rules after Tribal Ministry points out they’re illegal Massive pressure to get Rules through Illegal – in violation of sections 3(1)(c) and 5 of the FRA Local forest officials, contractors
Ministry of Panchayati Raj issues circular demanding that States give non-timber forest produce rights to Forest Dept-controlled JFM Committees Issued on July 31st Illegal – JFM Committees are controlled by Department, cannot have forest rights Forest officials, contractors

What are Forest Rights?

One hundred and fifty years ago, the British made the forest laws that still operate in India.

  • The point of the forest laws? To make timber and resource extraction easier for the British and their cronies.
  • The method? Declare vast areas government forests. Bring them under your officials, ban every other use, and throw everyone else out. 23% of India’s land area is now recorded as forest.
  • What about the millions of people who lived in and used these lands? The forest laws were designed to remove them. A single “settlement officer” was to “settle and acquire” their lands. Using anything else in the forest would be a “concession” that could be withdrawn at any time.
  • What happened? Even this “settlement” wasn’t done. In 2003, Madhya Pradesh admitted that 82.9% of its reserved forests never completed this process; 40% of Orissa’s reserved forests never did; as of 2005, 60% of India’s national parks and 62% of its sanctuaries hadn’t done it. An estimated 150 million to 250 million people depend on forest lands for livelihoods, through cultivating land, collecting non-timber forest produce, using water bodies etc. All of these are considered crimes and huge bribes are extorted by forest officials.

This is why tribals and other forest dwellers are the poorest people in the country.

Besides, citizens lost all access to forest management. Today, if you plant a tree in a reserved forest, you are committing a crime. Nearly a quarter of India’s land and some of its most valuable resources are managed by a closed, corrupt bureaucracy. More than 10,000 villages in Orissa and many thousands more across India are protecting forests, but as per law, they are all criminals.

What Does the Forest Rights Act Say?

It requires the government to record the rights of forest dwelling communities – both tribal and non-tribal. Rights include land being cultivated, non-timber forest produce, access to water bodies etc., and so on. For 150 years the forest areas have seen no democracy, only Department raj. So the law says:

  • Claims for rights are first placed before the assembly of all residents of the village – the gram sabha – for deciding which are legitimate. Claims approved in the assembly are screened by two higher committees, with half officials and half panchayat representatives.
  • People have the right and power to protect and manage their forests – not just the department.

What are Community Rights?

Some people are confused about “community rights.” These have nothing to do with caste communities. Forest dwelling communities have always shared use of their forests for many livelihood activities. Collecting non-timber forest produce; grazing cattle; using water; and particularly, managing and protecting forests are done together. Hence in the Act these rights are recognised for a group / village rather than for individuals.

Gram Sabha Consent: Transparency and Accountability in Action

There would be no point in recognising forest rights if the entire forest can then be destroyed by bureaucrats. By forcing companies and officials to justify their projects to those most directly affected, this requirement is transparency in action. For the first time in India’s history, there is a real possibility of challenge by citizens to the bureaucrat-corporate-politician nexus that otherwise decides everything about natural resources.

This is why the Supreme Court held that Vedanta could not get its mine until all questions had been placed before the village assemblies for their “active consideration.”

But is it fair to give gram sabhas a “veto”? Won’t this stop “development”?

All that the consent requirement does is force the project proponent to justify what they are doing. In public every company and govt agency promises great rehabilitation. Forest dwellers are typically extremely poor and marginalised. If a project will genuinely improve their lives, why would they say no?

There are fears that NGOs or others will “mislead” people. But corporates and governments have budgets and staff thousands of times larger than any NGO, and can easily explain their point of view. As the then Tribal Minister said, “there is no reason to believe that forest dwellers will arbitrarily oppose measures in the public interest.” Unless that is, of course, that the government knows that a project actually is not in public interest and would prefer to ram it through.

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