Rights in the forest: Supreme Court’s crucial test for FRA implementation

By Palla Trinadha Rao 

The Supreme Court of India, in a recent order in Sugra Adivasi & Others v. Pathranand & Others (Civil Appeal No. 2590 of 2019), has raised one of the most critical questions in the continuing tension between two key environmental legislations — the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), and the Forest (Conservation) Act, 1980, now amended as the Forest (Conservation) Amendment Act, 2023.

At the heart of the issue lies a fundamental conflict: can a forest dweller, whose rights are recognised under the FRA, construct a pucca dwelling house on forest land without prior clearance under the Forest (Conservation) Act?

A Bench comprising Justice Pamidighantam Sri Narasimha and Justice Atul S. Chandurkar observed that the case “requires the Court to balance two important values: first, to provide minimum basic housing even to those who are forest dwellers; and second, the obligation of the State and its citizenry to protect the national forest resource.”

The Court noted that while Section 4 of the FRA recognises and vests forest rights in forest dwellers, Section 3(2) provides a limited exemption from the Forest (Conservation) Act, 1980 — restricted to certain public facilities like schools, anganwadis, roads, and community infrastructure undertaken by the government. Crucially, the Court held that this does not include construction of a pucca dwelling house.

The Court directed the Ministry of Environment, Forest and Climate Change (MoEFCC) and the Ministry of Tribal Affairs (MoTA) to hold detailed consultations and file an affidavit indicating the scope, method, and manner of enabling construction of dwelling houses within forests, keeping in mind the mandate of the Forest (Conservation) Act, 1980.

In fact, the FRA, 2006 was enacted as a beneficial and remedial legislation to correct historical injustices done to Adivasis and other forest dwellers by recognising their pre-existing rights over forest land and forest produce. In contrast, the Forest (Conservation) Act, 1980 — now amended in 2023 — has a restrictive and regulatory character, ensuring that forest land is not diverted for non-forest purposes without prior Central Government approval. Thus, while the FRA is people-centric and rights-based, the FCA is forest-centric and control-oriented.

Section 4(1) of the FRA contains a powerful non-obstante clause — “notwithstanding anything contained in any other law for the time being in force” — declaring that forest rights shall be vested in forest dwellers. Section 3(1)(a) specifically recognises the right to hold and live in the forest land under individual or common occupation for habitation.

Therefore, once an Individual Forest Right (IFR) title is granted to a forest dweller, the construction or repair of a house within that titled land is a logical extension of the right to live in and use that land. No separate forest clearance under the FCA is necessary in such a case.

However, where the proposed construction involves (a) diversion of additional forest land not covered by the recognised FRA title, or (b) a public facility not enumerated under Section 3(2) of the FRA, the Forest (Conservation) Act, 2023 applies. The amended Act requires central approval for any such diversion, reinforcing the Supreme Court’s T.N. Godavarman Thirumulpad line of judgments that safeguard forest cover from non-forest use.

In Orissa Mining Corporation v. MoEF (2013), popularly known as the Niyamgiri case, the Supreme Court reaffirmed that the Gram Sabha is the competent authority to decide how proposed activities affect the rights of forest dwellers. The Court’s reasoning implies that the recognition and exercise of FRA rights, including habitation within titled areas, cannot be overridden by administrative decisions under the FCA.

The Pradhan Mantri Janjati Adivasi Nyaya Maha Abhiyan (PM-JANMAN) Mission aims to improve the living conditions of Particularly Vulnerable Tribal Group (PVTG) households by ensuring access to essential amenities and services. Its main focus is to provide every PVTG household with a safe and durable house that offers protection from environmental risks and a sense of security, with a target of completing 4.6 lakh pucca houses for PVTG families by 2026.

The Ministry of Tribal Affairs (MoTA) has, through several communications, clarified that beneficiaries of FRA titles are eligible to receive PMAY-G or PM-JANMAN housing assistance on their recognised forest land. A joint communication by MoTA and MoEFCC dated 14 March 2024 (addressed to all States/UTs) directs that individuals and PVTGs with rights under Sections 3(1)(a) and 3(1)(e) of the FRA be facilitated to make use of vested forest land for availing benefits under relevant government schemes, including provision of pucca houses under PM-JANMAN. The text is also reproduced in Lok Sabha Unstarred Question No. 1771 (5 Dec 2024). This reflects the government’s position that FRA-titled land is not “forest land” in the sense requiring fresh FCA clearance.

In essence, the Forest Rights Act, 2006, being a special and remedial law aimed at recognising the human rights of forest dwellers, must prevail in cases where rights are duly recognised and construction of pucca houses takes place within the titled boundaries. The Forest (Conservation) Act, 2023 governs only when new forest areas are sought to be diverted beyond recognised rights.

The harmonious application of both laws — with the Gram Sabha at the centre — is vital to ensure that forest conservation does not become a pretext to deny justice to the very people who have lived in and protected forests for generations. However, the issue remains under judicial scrutiny.