Blow to Adivasi Rights, this time from the Modi Regime itself

Written by Sarim Naved | Published on: February 2, 2016
Forest Rights Act has acquired a new foe, the government of India, itself. In the days of the United Progressive Alliance government, though there were repeated demands from within the government to dilute the Act, it is under the Modi regime, that the present National Democratic Alliance government that has launched on a course aimed at not just diluting but destroying the empowering and democratising aspects of this law.

Government committees like the T.S.R. Subramanian Committee report set up in 2014 had advised amendment of the Forest Rights Act to dilute the consent powers of the local Gram Sabhas, but the political cost of an unpopular amendment was earlier deemed too high. Since then, however, the dilution that has been proposed, and is actually happening, stealthily through executive notifications such as in Maharashtra where control over forest resources is sought to be re-appropriated by the State. The central Tribal Ministry was and is at loggerheads with the central Environment ministry. The latter is being used by the regime to completely destroy the impact of the law.[1]

A notification from the Ministry of Environment and Forests now allows private parties to initiate commercial plantations on ‘degraded’ forest land and restricts usage of the same by local communities. How this helps conservation efforts is a matter of anybody’s guess. The Government has also mandated a reduced deposit of royalties by mining companies. These deposits are again to be made into a government fund instead of advanced to the local communities who are entitled to it.

Though the state management of forests has been a proven failure – and this was acknowledged in the very enactment of the Forest Rights Act of 2006 istelf -- the State seems loth to hand over democratic voice to local communities. Local communities, aware and empowered about the degrading costs of a certain model of development, could well refuse to allow such a top down take-over of forest land. The Government, accused of being crony capitalist at the best of times, could more easily negotiate terms with mining companies and other industry, little concerned with the impact on forests. At stake here is not the long-term protection of the forests but the issue of control over the largesse that forest resources represent.

This principle was also affirmed by the Supreme Court in the Niyamgiri judgment, where the provisions of the Forest Right Act and the Panchayat (Extension to Scheduled Areas), Act were cited by the Court to affirm the requirement of consent from the local gram sabhas before utilising their land for the Vedanta bauxite-mining project located in the Niyamgiri hills of Orissa.

By now we have the experience of many decades which shows that a government driven attempt at forest conservation does not work effectively. Creating no-go zones which are supposed to be patrolled by a government department just creates a niche for governmental corruption and for illegal exploitation of forest resources.

Local communities have a stake in the forest. Their way of life depends upon the continued existence of the forest. To presume that no one would live in a forest without aiming to exploit it commercially is to be disingenuous. It betrays a bias and an understanding of life as an exclusively urban phenomenon where the conglomeration of humans is going to expand manifold to take over all surrounding areas. There is also an assumption that these local communities are not, and cannot, be part of forest conservation efforts and are destined to be used by others in destroying the forests.

A city-dweller cares for his house, the road outside his house and the schools and hospitals which he uses. The city is his habitat and community participation is a beneficial and accepted part of urban planning. There is no reason to assume that the person living in the forest, used and attuned to a way of life that needs the forest and the wildlife in it to survive and prosper, will feel or act any differently regarding his habitat.

Apart from the tribals who are benefited under the Act, the Forest Rights Act also recognises rights over land for ‘Other Traditional Forest Dwellers’ who are defined as persons whose families have been living in within the forest at the same location for 75 years or more. This is necessary because not every deserving forest dwellers has been declared a Scheduled Tribe with some tribes, who are considered Scheduled Tribes in one state are not considered so in other states. There is much apprehension that encroachers will utilise this definition to enter and exploit the forests. The cut-off date for recognition of forest rights is 2005 and a claimant for forest rights has to show that he was in occupation of forest land in 2005 and that he and his family have continued to do so for the previous three generations or 75 years. The cut-off date also applies to tribals.

A welfare legislation is always open to the criticism of misuse. Or that benefits under it may be sought by people who are not eligible. This does not mean that the welfare legislation itself is a wrong step. If there are deficiencies in implementation they can be addressed and corrected. A new and young legislation like the Forest Rights Act needs some time for its impact to be felt and understood.

Today statistics of its efficacy tell a mixed story. Some statistics show a marginal decrease in forest land in tribal areas since the inception of this Act. It is nobody’s case that India’s forest cover was not decreasing before this law came about. Further, the implementation of the law has been quite tardy which makes it difficult to assess the impact of the law just as yet. Many lakhs of claims under the Act have been accepted and an equivalent number have been denied. Forest-dwelling communities are only now starting to take control over their lives and their surroundings. In at least some states, there is a marginal increase in forest cover although again, such an increase cannot be attributed to the Forest Rights Act at this stage.

The issue, when discussing laws like the Forest Rights Act, is one of community participation and empowerment. Tribals and forest-dwellers have lived in terror of eviction from their lands for the best part of a century. If they are evicted, the majority inevitably end up in city slums and squalor, which does not benefit them or the overburdened cities that they are forced to move into.

Some degree of trust in the disempowered might just be the solution that India is looking for. The Central government is in the middle of a tug-of-war with an isolated Ministry of Tribal Affairs forced to cede ground to the other Ministries to dilute the Act to allow crony corporates and the government to take over the forests once again.

Local people must have the freedom to live their own lives. This is at the heart of any democracy. Forests and wildlife are endangered in India not because of the tribals but because of the rapacity of the State and commercial interests. Letting communities, whose instinct is to defend their way of life, can only help in conserving these forests and the animals living within them.

(The writer is a Delhi based lawyer who is appearing for persons defending the act before the Supreme Court) 
1) Forest land: Govt finalising dilution of tribal rights
2) Joint Statement on Anti-FRA Case in SC
[1] After approving an ordinance that does away with the need for consent of owners to acquire their land for infrastructure projects and other purposes, the National Democratic Alliance (NDA) government is finalising the dilution of tribal rights over forest land, which will ease and hasten handing over green patches to industry.
Sources in the government say despite months of stiff resistance from the nodal tribal affairs ministry, a compromise is being hammered out to alter the existing strong regulations requiring the consent of tribal gram sabhas (village councils) before forest land is given to industries.
The tribal affairs ministry has drafted revised rules governing tribal consent, which are now being reviewed by the environment, forests and climate change ministry. A senior official in the government said, "We should see some result on this within weeks." Another official said the environment ministry had, on Monday, received a proposal to revise existing regulations on tribal consent, adding this was being reviewed at the highest level.