In March of 2017, Pohang Iron and Steel Company (POSCO) declared that it was withdrawing from the proposed project in densely forested areas in Odisha, twelve years after it was first proposed. This was a result of struggle and fortitude of the tribal and forest dwelling communities residing in the project affected areas who fought relentlessly for their rights and protection of their livelihood. POSCO pulling out of Odisha might have invigorated Forest Rights Activists, but the Odisha government is now planning to sign a Memorandum of understanding with JSW Steel granting them the land that was transferred to POSCO in violation of the Forest Rights Act. Rights of Scheduled Tribes and forest dwellers have always been in contention and have erected issues of national significance but these communities had been legislatively voiceless till the recent past.
Scheduled Tribes in India constitute about 8.6 % of India’s total population according to the 2011 census. This community is directly dependent on forests for their livelihood. It is estimated that about 300 million people in India are indirectly dependent on forests for their livelihood and subsistence.To codify the rights of Tribals and Forest Dwellers, after years of torment and discrimination, the Government of India enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act in 2006( FRA).
Statutory Impendiments to Rights of Tribals
The Indian Forest Act of 1927 gives the states the right to declare any forest area as a reserved forest. Section 5 of the act states that after the issuance of such a notification of reservation of forest, there would be a bar on collection of forest rights in the particular reserved area. Similarly, the Wild life Protection Act, 1972 (WLPA) created a huge problem which gave rise to the anthropocentric versus eco-centric debate, which raised the question whether traditional rights of tribals should be subjugated in furtherance of protection of forests and wild life. The WLPA sought to lay down procedure for declaration of sanctuaries and national parks. The act states that the state government is to make adequate arrangements for the population to be displaced after such declaration. No person would then have any claim right over the property in the area unless the person had an ancestral property in the reserved land. These laws have been in direct conflict with the rights of forest dwellers and tribals.
Wild life protection and rights of tribals have been at loggerheads since the enactment of the Wild life Protection Act. In Pradeep Kishen v. Union of Indiathe petitioner challenged the legality and constitutional validity of the order of the state government of Madhya Pradesh which permitted the villagers living around the boundaries of sanctuaries and National Parks to collect tendu leaves with an object of maintaining their traditional rights. The petitioner challenged the order as violative of section WLPA and his fundamental rights under Article 32 of the Indian Constitution. In this case, the state government had failed to notify an area to rehabilitate the tribals in the vicinity of these sanctuaries and national parks. Because the entire livelihood of these tribals depended on collection of tendu leaves and the state had failed to notify an area to resettle them, the court held the order of the state government to be valid and further instructed the government to expedite the process of rehabilitating the villagers through a valid notification and also notifying areas as national parks and wild life sanctuaries. The court though, made a curious observation:
If one of the reasons for forest degradation is the entry of villagers and tribals living in and around the Sanctuaries and National Parks, there can be no doubt that urgent steps must be taken to prevent any destruction or damage to the environment, flora and fauna and wild life in those areas.
Similarly, in Animal & Environment Legal Defence Fund v. Union of India, the Chief Wildlife Warden of the Forest Department of the state of Madhya Pradesh had given fishing permits to 305 villagers to carry out fishing in the Totladoh reservoir within the boundaries of the Pench National Park. The petitioner argued that the permit giving rights to people for fishing was in violation of the IFA as well as the WLPA, which prohibit any kind of shooting, hunting or fishing in sanctuaries and national parks. The Supreme Court held the tribals had a traditional right of fishing in the reservoir and stated that these activities be monitored by the state authorities and gave pertinent directions to the same well.
The tribal communityin India is constitutionally as well as statutorily protected. Article 244 and Paragraph B of the Fifth Schedule protect rights of tribals in India. Article 244 states that the provisions of the Fifth schedule apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State. The Fifth schedule more specifically mentions the procedures as to the functioning of the Tribes Advisory Council and the powers of the governor to prescribe or make any rules as to the activities in such areas in conformity with the rights of the tribals. These articles were interpreted liberally in Samatha v. State of Andhra Pradeshwhere the Supreme Court stated that:
The Fifth and Sixth schedules constitute an integral scheme of the Constitution with direction, scheme, anxiety to protect the tribals from exploitation and to preserve valuable endowment of their land for their economic empowerment to elongate social and economic democracy, with liberty, equality, fraternity and dignity.
Dealing with a law enacted by the state of Andhra Pradesh giving itself the right to transfer land by grant of lease in scheduled forest areas in favour of non tribals, the Supreme Court held that Para 5(2)(b) of the Fifth schedule would protect the rights of tribals and any law in contravention would be invalid.
In a case dealt with by the Supreme Court in 1987, namely, Banwasi Seva Ashram v. State of U.P & ors, the Supreme Court had to choose between the rights of tribals and the necessity of electricity generation through thermal power plant in the state of Uttar Pradesh. The Supreme Court, in its earlier order had prohibited eviction of tribals and local people for setting up of a thermal power plant. But four years later, the Court lifted that prohibition stating that while ecological considerations were necessary, the country’s need for electricity and industrial growth could not be ignored. Thus, again, the ‘insignificant portion’ of the population was ignored due to the requirement of infrastructural development of the ‘visible populace’.
In another major blow to the tribal population in the country, the MoEF issued a directive on May 3, 2002, to all states requiring that they summarily evict all illegal encroachers on forest land and regularize only eligible encroachments before 1980. This meant that if a group had legitimately used certain forest lands before 1980, then they could still be allowed to use those lands now. If any group did not meet this criterion, the states should evict the group from the area where forest encroachment was occurring. The states had to complete the evictions and/or regularizations by September 30, 2002. The MoEF’s directive had detrimental effects on many of the country’s tribal communities. Due to the illiteracy of the tribals and the lack of documentation they held regarding the land they dwelled at, most of them could not furnish proof that they lived at their dwelling on the land before 1980 as well. This directive also violated paragraph 4.6 of the National Forest Policy of 1988 which states that tribal people and the forests have a symbiotic relationship and all parties involved in the conservation including forest development corporations should associate themselves closely with tribals for protection, regeneration and development of forests. To curb the damage caused by the circular of 2002, another circular was issued in 2004 which summarily regularized encroachments till 1993. In May 2005, the Union Environment and Forests Minister informed the parliament that the MoEF had issued directions to all state and union territory governments not to resort to eviction of tribal people from forest land in the absence of verification and determination of their rights. In 2006, the government enacted the Forest Rights Act.
The Forest Rights Act, 2006
The Forest Rights Act was enacted to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who had been residing in such forests for generations but whose rights could not be recorded and to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.FRA recognises 14 types of pre-existing rights of forest dwellers on all categories of forestland, including protected areas. The most significant rights include,(i) Individual rights over cultivation and homesteads in forest lands, i.eindividual forest rights (IFRs); (ii) Community forest rights for use and access to forestland and resources. These include rights to firewood, grazing and other products for subsistence; rights over minor forest products; water bodies and fishes; rights to access biodiversity; intellectual property and traditional knowledge, etc; (iii) Community forest resource (CFR) rights to use, manage and govern forests within the traditional boundaries of villages; and (iv)The empowerment of right-holders and/or gram sabhas for conservation and protection of forests, wildlife, biodiversity, and their natural and cultural heritage.
Recognition of community and individual rights is the patent objective of this act and yet the insensitivity of the states in implementing the act has directly affected these communities. Many states either lack awareness of the provisions of the Act, or are reluctant to recognize it. Minimum estimated potential of forest area over which CFR can be recognised in India (excluding five north-eastern states and Jammu & Kashmir) is approximately 85.6 million acres (34.6 million hectares) which translates to more than 200 million Scheduled tribes and other forest dwellers in over 170,000 villages getting their rights.States which have implemented the Act, have largely focused on granting Individual Forest Rights, mostly as a strategy to generate popular and political support. As per a 2016 report, only three percent of the total potential of CFR (170,000 forest and forest fringe villages) have been granted. Many such titles are either wrong or in direct contravention to the Act.
Since the enactment of the Forest Rights Act, 2,04,000 Hectares of forest land has been diverted for developmental purposes. The ratio in Supreme Court in Orissa Steel Mining Corp v. MoeFwas categorically clear that forest rights under FRA had to be considered while granting Forest Clearance for diversion of forest land for non-forest purposes.
In 2009, a notification by Ministry of Environment and Forests stated that unless all the claims of the forest dwelling communities were settled by the state, no diversion of forest land for any non-forest purpose was to take place.This notification (as utopian as it was) went a long way in protecting rights of Scheduled Tribes and Forest Dwellers. The fact that this notification isn’t being implemented is apparent from the fact that there have been reports of the current dispensation at the Center wanting to circumvent the rights of tribals through the MoEFCC. One such report states that the MoEFCC wanted the comments of Ministry of Tribal Affairs (MoTA) on whether the proposal seeking prior approval of the Centre under the Forest Conservation Act for use of forest land for underground mining from the requirement of initiating and completing the process of recognition and vesting of forest rights in accordance with the provisions of the FRA could be exempted. The MoTA held its ground and stated that, “Delinking forest clearance under FCA and rights recognition under FRA would be deemed to be a retrograde step by the government.”
The efforts of the Central Government to dilute the Forest Right Act is clear from the Compensatory Afforestation Fund Act, 2016 which does not address the issue of community forest rights and vests unbridled powers on the State Forest Departments to implement the Act. Despite questions being raised in the Parliament regarding rights under FRA and the need for consent of the Gram Sabhas under the Compensatory Afforestation scheme, the bill was still passed without addressing the question.
Development and modernization of the world has always eluded Scheduled Tribes and Forest Dwellers. The fact that they don’t constitute a ‘vote bank’ community has also played a part in them being isolated from the general populace. Also the fact that natural resources in India are present under the land where the people dwell only adds to the problem of recognition of their rights as the state claims ownership over these resources. Subverting their rights has directly resulted in the rise of so called ‘Naxalism’ as well. These ‘invisible dwellers’ need to be given due recognition and the mainstream media which considers itself the bastion of free speech and protector of human rights, needs to go deep into India’s forests to understand the problems facing these communities rather than making headlines out of inconsequential tweets.
Aditya Gujarathi is a fourth year law student from ILS Law College, Pune and interned with Lawyers Collective.
5. Bar of accrual of forest-rights- Afterthe issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.
Wild Life Protection Act, 1972, Statement of Objects and Reasons