FRA continues to be plagued by challenges in implementation

Uphold forest rights act to secure rights, livelihood and forest conservation: A note by Community Forest Rights-Learning and Advocacy (CFRLA), All India Forum of Forest Movements (AIFFM), Mahila Kisan Adhikaar Manch (MAKAAM):

The Forest Rights Act (FRA) was enacted to undo the historical injustice against Forest Dwelling Scheduled Tribe and other forest dwelling communities by recognizing their pre-existing rights over forest land and community forest resources. It provides for democratic governance of forests by vesting the rights and authority to manage and conserve forests in the Gram Sabha and forestdwellers.
The law also recognizes and vests rights over community forest resources (CFR), individual/common rights over forests for cultivation and habitation, ownership and control over minor forest produce (MFP). FRA expressly recognizes women as equal participants in decisionmaking in the Gram Sabha, and their equal ownership in individual forest rights (IFR) and CFR.
The FRA is facing serious threats arising out of a case by retired forest bureuacrats, ex-zamindars led by select wildlife NGOs in the Supreme Court and the slew of legal and policy measures initiated by MOEFCC including the proposed amendments to the Indian Forest Act, Compensatory Afforestation Fund (CAF) Act and Rules, Draft Forest Policy, exemptions from Gram Sabha consent in forest clearance, among others.

The Forest Rights Act is vital for forest and biodiversity conservation in India

There is strong consensus international law and organizations, scientists, scholars, experts and intergovernmental bodies that indigenous people (tribal peoples) and local communities are the strongest custodians of natural resources, and have a central role in stewarding environmental protection, biodiversity conservation and climate change mitigation.
This view is endorsed by the United Nations Framework Convention on Climate Change (UNFCCC), Convention on Biological Diversity (CBD), intergovernmental mechanisms like the Global Assessment Report on Biodiversity and Ecosystem Services by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services’ (IPBES), global conservation organizations like IUCN and The Nature Conservancy, among others.
There is also emerging convergence between internationally accepted conservation standards and India’s international legal obligations under the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
These universal human rights instruments, to which India is a signatory, cast a binding obligation on states to empower indigenous, tribal and semi-tribal peoples to protect, manage and conserve their customary resources in accordance with traditional knowledge and practices.
Globally, the Forest Rights Act (FRA) is seen as one of the leading examples of democratic forest reforms. It has the potential to recognize more than 40 million hectares as community-governed and conserved forests, in line with global best practices.
As per the Ministry of Tribal Affairs Status 2 Report November 2018, barely 13% of this potential has been achieved, encompassing predominantly rights over forest land for habitation and cultivation (IFR), while recognition of community forest resource rights are still ongoing.
Wherever Community Forest Resource Rights (CFR) have been properly recognized, dramatic improvements in forest conservation outcomes have been observed in studies undertaken by environmental scholars in research organizations such as Ashoka Trust for Research in Ecology and the Environment (ATREE), Centre for Science and Environment (CSE) and Tata Institute of Social Sciences (TISS).
Thousands of Gram Sabhas across districts like Gadachiroli, Gondia, Amravati etc. in Maharashtra; Narmada, Gujarat; Rajnandgaon, Chhattisgarh; Mayurbhanj, Kandhmal in Odisha; BRT Hills in Karnataka; Wayanad in Kerala have taken up the responsibility of forest and biodiversity protection in their CFRs, leading to regenerating forests, improved wildlife habitats and improved livelihoods. This win-win situation is in line with international and global recognition of the positive ecological outcomes of community-managed forests.
Similarly, MAKAAM has gathered evidences from the field that reveal wherever women have been included in decision making processes and have gained recognition as rights holders under Fra, their zeal to protect and restore the forests and ensure that the forests are not harmed or diverted for any untoward activities have increased manifold.
Women also report an improvement in the quality of life and reduction in long term migration from regions of effective implementation of the FRA. A large number of conservation scientists support Forest Rights Act for the above reasons and have articulated the same powerfully in their letter to the Ministry of Environment, Forests and Climate Change (MoEFCC) in 2016.
They described the Supreme Court’s eviction order of 13 February 2019as a deep setback for conservation in India. More than 300 scientists and academicians from across the world have signed this letter, including prominent conservationists like Dr Raman Sukumar, Dr Ravi Chellamand Dr Kamal Bawa.

Transformative potential of FRA unmet due to poor implementation

As discussed above the transformative potential of FRA to secure rights and livelihoods and achieve conservation has been met in many parts of India where FRA has been implemented properly leading to empowerment of Gram Sabhas and local communities. However, FRA continues to be plagued by challenges in implementation, primarily due to obstruction by the forest bureaucracy and marginalization of the Ministry of Tribal Affairs (MoTA) by the MoEFCC in the formulation of laws and policies relating to forests.

Study: Arbitrary rejection of forest rights claims in six states, appeal denied

An ongoing study by CFRLA in six states (Chhattisgarh, Madhya Pradesh, Jharkhand, Odisha, Maharashtra and Kerala) of more than 1,000 rejected claims in 72 villages finds large-scale violations of due process and arbitrariness in the rejection of FRA claims, where the claimants’ rights of appeal were also denied. (Click Annexure for details)
The report finds:

Interference of the Forest Department in functioning of the Gram Sabhas
Arbitrary disposal of claims by the district level committees
Claimants not informed of the rejection of their claims, or the reasons therefore,
Claimants inhibited from exercising their remedies to challenge such rejections under relevant statutes and the constitution.
These findings are also supported by review of rejected claims by various states which found that a large volume of claims them had been wrongfully rejected, as acknowledged by the MoTA, Chhattisgarh government, Gujarat High Court, among others.

The efforts to rollback Forest Rights Act

While the Governments have allocated little resources to the implementation of FRA, retired forest officers and hardcore conservation groups filed coordinated cases in the Supreme Court in 2008 to have FRA declared constitutionally invalid and strike it down.
In 2014, petitioners filed additional prayers alleging that FRA was leading to large-scale encroachments in forests citing various reports and forest department data. Even though eviction of forest-dwellers was not prayed by the petitioners, they have misled the Supreme Court into passing eviction orders which are neither supported by the Indian Forest Act or the Forest Rights Act.
The petitioner’s arguments are based on misrepresentation of data and scare-mongering, and have been extensively debunked. This order, bad in law, was passed only because neither the Central Governments nor the State governments defended the FRA seriously in the Supreme Court. Not only is there an absence of any provision or powers for eviction under FRA, it expressly protects against evictions until the due process of recognition of rights is complete. The order is based on poor quality data provided by petitioners, ignores constitutional protections, Forest Rights Act itself and violates international norms.

Impact of evictions already felt; atrocities underway

Our own study as well as state government reviews clearly show that almost all IFR rejections were procedurally wrong. It implies that without a large scale and intensive review of these rejected claims by the government, any ad hoc eviction efforts will lead to terrible injustice. The SC’s order, if implemented, would lead to the largest (and likely the most infamous) displacement of tribals and forest dwellers in name of conservation in the world history. The resultant conflicts will have deep negative impact conservation in India, while reigniting conflicts in the Indian heartlands. Therefore the order needs to be withdrawn.
The forest departments have already started evicting tribal and forest dwellers in states like Telangana and Madhya Pradesh using the pretext of the order. In Burhanpur, Madhya Pradesh, the attempted evictions were accompanied by police firing on forest-dwellers with pellet guns, seriously injuring many. These atrocities are happening even though SC order is in abeyance- one can only imagine the repression and atrocities if the stay is lifted.

Call for the government to defend the Forest Rights Act and its forest-dweller citizens

The alternative is for the Government is to strongly defend forest rights act in the SC as the core instrument of conservation and development in India. The government must make an all-out effort to implement the provisions of the Forest Rights Act on a mission mode; review rejected claims and ensure that individual and community claims are recognized; ensure that Gram Sabhas have the resources to conserve and protect forests and biodiversity while improving their livelihoods and lives.
The task or rights recognition is intensive and will require massive resources and efforts, including creating awareness amongst the tribal and forest dwellers about the law. This will be a win-win situation for both rights and for conservation.