Weekend Essay: The Narrative Roadblock to the Forest Rights Act in India

The Narrative Roadblock to the FRA

Vaishnavie Rathoe

Countercurrents

May 2019

The  Supreme Court order of February 13, 2019 on the forced eviction of more than 1,000,000 forest-dwelling households from forestlands across 16 states, once again brought to the fore the sharp ideological divide around the politics of ‘forest’ land ownership. Articulations by the ‘conservation’ lobby in support of the order also exposed the deep misconceptions and factual misunderstanding of the Forest Rights Act, 2006 (FRA) owing to the belief that forests need to be protected from the people who depend upon it, without that the forests would near their demise soon. An opinion piece by K.N Murthy (Deccan Herald, 28 March 2019), titled, “Denuding Forests, per Act” echoes this narrative; the dark cloud that continues to float over the Act, making it a move at snail’s pace. Mr. Murthy, while conveniently throws in ‘facts’ and ‘statistics’, to make a point, is unable to conceal the deep-seated bias in every argument he makes.

The ‘Other-ing’ of Other Traditional Forest Dwellers

Take for instance his sharp attack on OTFDs (Other Traditional Forest Dwellers) who are one of the beneficiary groups under the act. He claims that they have other viable livelihoods, and that they are no victims of ‘historical injustices’. While it may be true that most of the applications in Karnataka have been received from OTFDs, a high rejection rate (70%) is not synonymous to this community being ‘undeserving’. In Karnataka, communities like Gowlis, Kunbis, Halakki Vakkala and Kare Vakkala, Kunbi, Kulvadi Marathi have resided in Uttara Kannada for years. These communities are officially identified as OBCs, and under FRA, they would be classified as OTFDs. “They were the original inhabitants and have been residing in Uttara Kannada for generations,” says Shailendra, Secretary of Karnataka Forest Dwelling Tribal Communities Federation. “Not only are these communities dependent on forest land for agriculture, but they also benefit from Non-Timber Forest Produce collection like cinnamon, kokam (Garcinia indica) and raw materials for weaving baskets,” he continues. They then, do not “have other viable livelihoods”. Instead, the livelihoods of such communities, who are strongly dependent upon the forests for generations, can be sustained only by Acts like FRA.

Further, Mr Murthy’s assertion that the all-India rejection rates for OTFDs are over 70% is erroneous. From the data available for 17 states, rejection of claims filed by OTFD communities was more than 70% in only 7. Regardless, his tone reeks of his belief of unfair inclusion of OTFDs in the Act, who “somewhere along the way, also got in the Act.”

This discrimination against OTFDs is also evident in Odisha, where a notification dated 7 March, 2019 was issued by the District Welfare Officer, Nabararangpur, Odisha, revealing how the Act is being misinterpreted. The notification stated “…Traditional Forest Dwellers who have been residing in the forest land or using the same for their bonafide livelihood interest, and if such people are able to show the proof of their occupation over the forest land for the last 75 years, they are also eligible to be given title over that land under FRA 2006.” This is despite the clarification issued by MoTA through FAQs of the Act which states that “the Act does not envisage the occupation of forest land for three generations prior to December 13, 2005. The occupation should be prior to December 13, 2005….” This condition does not differentiate between forest dwelling STs and OTFDs. It is due to similar bureaucratic hurdles that in rest of the country, claims by OTFDs have been low, between 3% and 39%.

Murthy readily assumes, as did the Supreme Court, that a high rejection rate is necessarily a sign of ‘ineligible’ applicants whereas this is mostly due to misinterpretation of the eligibility criteria for OTFDs. On 25 April, 2019, in a positive order, the Karnataka High Court ruled to stay the operation of the orders of rejection passed by SDLC and DLCs in various taluks of Uttara Kannada district and to not evacuate occupants of the forest land. https://www.deccanherald.com/amp/state/top-karnataka-stories/u-k-forest-dwellers-hc-stays-claim-rejection-730725.html). The court of law here acknowledged the difficulty of obtaining documents for a proof of 75 years of occupation, since the petitioner had contended that such rejections were “unsustainable.”

For an Act that is set out to correct the ‘historical injustice’ done to forest dwellers, the debate on whether STs and OTFDs both need to be identified under the Act, seems a futile one. Historically, prior to FRA, all piecemeal measures taken by state and central governments did not make a distinction between tribal and non-tribal forest dwellers. Moreover, when measures by conservationists and courts, like stay on regularization and NTFP collection, halting the re-reservation of forest land and banning of rights in Protected Areas came into action, it hugely impacted livelihoods of tribal and non-tribal communities both, thereby causing ‘injustice’ to both the groups. If the conditions that were faced by both STs and non-STs in terms of policies and counter measures were same, why should injustice be corrected only for one community?

Myths and Misconceptions

To anybody who has read the text of the act it is amply clear that FRA is not a land distribution law and that it ‘recognises and vest the forest rights and (existing) occupations in forest land for those who have been residing in such forests for generations, but whose rights could not be recorded…’ Nevertheless, by use of statements like Mr. Murthy’s, of “giving more land will not help…” only propagates the myth that the act will provides communities with new ‘forest’ land, thus leading to deforestation. Murthy also falls back on to the old drawn out argument that “jurisprudence in forest settlement is well laid out,” granting communities “privileges”. It is precisely because settlement processes, only conferred ‘concessions’ and ‘privileges’ to communities rather than inalienable ‘rights’ that cannot be taken away without consent that the FRA was brought in. There have also been inadequacies with settlement processes across the country. For instance, in Himachal Pradesh, the revenue records show the presence of lakhs of occupation on forest land termed as Najayaj kabja or illegal encroachment, highlighting irregularities in settlement processes. As a result of this, lakhs of people are surviving on lands without a legal title and it was to address this that Forest Rights Act paved its way through.

Who protects forests better?

The Preamble of FRA beautifully notes, that forest dwelling Scheduled Tribes and OTFDs are integral to the very survival and sustainability of the forest ecosystem. Moreover, a recent report published by Rights and Resources Initiative (RRI), an international NGO, compared conservation outcomes in lands controlled by indigenous groups against those in government-managed ‘protection zones’. The study showed that through labor and capital put towards managing, protecting and rehabilitating forests, indigenous communities were found to achieve equal or better conservation outcomes. (https://news.mongabay.com/2018/07/investing-in-indigenous-communities-most-efficient-way-to-protect-forests-report-finds/) So why is it assumed that the state is more efficient for conserving and protecting our forests, and implementing FRA in full spirit for STs and OTFDs would make us “lose a quarter of our forests?”

In the garb of conservation that the state wears, expropriation finds its way. With the Indian Forest Act, areas that were used and managed for multiple purposes initially got changed to hinterlands that were valued primarily for a single commodity. (Shankar Gopalkrishnan, The Forests Rights Act: Political Economy of ‘Environmental Questions’). As the focus of forest management shifted from revenue generation to conservation, the bio-centric principles made the model of conservation more exclusionary, made evident in the stringent rules of Forest Conservation Act (1980), Wildlife Protection Act (1972) as well as the new draft amendments of Indian Forest Act. It is highly hypocritical that in the name of protecting forests, the state hesitates to vests rights, but at the same time, it appropriates forest dwellers’ rights to accommodate large industrial projects. Recently, Rajasthan Rajya Vidyut Utpadan Nigam (RRVUN) ltd, a company run by Rajasthan government signed a contract with the Adani Group to develop, control and mine more than 841.5 hectares of the Parsa Coal Block in Chattisgarh. (https://www.downtoearth.org.in/news/mining/central-panel-opens-up-forest-for-adani-mine-despite-chhattisgarh-s-reservation-63221) This is despite FAC’s identification of the mine block as an ‘inviolate zone.’ In fact, according to government data of December 2018, forest land equivalent to the size of Kolkata, which is over 20,000 hectares has been diverted for developmental activities such as mining, thermal power plants, dams, road, railways and irrigation projects between 2015 and 2018. (https://economictimes.indiatimes.com/news/politics-and-nation/forest-land-the-size-of-kolkata-diverted-for-projects-in-past-three-years/articleshow/67416228.cms). So when Mr. Murthy writes that “if we recognise forest rights for OTFD, because agriculture is uneconomic and susceptible to wildlife damage, these lands will end up as resorts, destroy the surrounding forests,” he willfully ignores that this is already happening, albiet the culprits are not the forest dwellers but the State and in fact the forest department responsible for diversion of forest land!

The concern then in Mr. Murthy’s article that “Forest officers stand bereft of their powers” is unfounded and clearly emerges out of the insecurity of losing their power and control over the resource, and not so much the forests themselves.