Why realising forest rights is a distant dream, despite legislations

By Armin Rosencranz and Zainab Lokhandwala

Among the many laws inherited from the British, exclusive state control over forests and its resources has gained relevance today as never before. The British initiated this trend for economic and political reasons. However, successive Indian governments since 1947 have chosen to forge ahead in the same direction of command-and-control. India’s conservation strategies resonate the attitudes of the British, who laboured to survey India’s forests and to exploit them without any accountability or interference from forest communities.

Tribal and other forest dwelling communities in India are often defined by their relationship with natural resources like land, forests and water resources. This long association has resulted in a vast assemblage of traditional knowledge. Such knowledge contains insights and useful practices that relate to the sustainable management of natural resources and the development of the areas they inhabit. Participatory conservation by local people is based not as much on the logic of traditional knowledge and spiritual association, but more so on the fact that areas with a major biodiversity concentration overlap with indigenous peoples’ inhabitation.

Yet, India’s experience with issues of forest conservation and human rights of indigenous peoples can best be described as the continuation of the ‘British hangover’. This is because the policies and schemes in India have largely been enacted in pursuance of the Indian Forest Act, 1927, which vested absolute control over forests in the hands of the colonialists.

An attempt to elevate India’s forest communities

This trend was slated to substantially change with the passing of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), which, for the first time, gave substantive forest rights to tribal and other forest dwelling communities. It endeavours to assuage the historical injustice meted out to scheduled tribes (STs) and other traditional forest dwellers (OTFDs) through their forcible eviction and urban mainstream populations. The Act aims at securing traditional rights over forest land and community forest resources. It establishes democratic community-based forest governance.

In a nutshell, this act recognises the genuine legal right of any member of an ST/OTFD over forest land. It renders any eviction illegal under this act. A decade has now passed since the FRA came into being, yet its implementation has seen no real or concrete change in the scenario.

A 2016 Performance Report prepared as part of the Community Forest Rights-Learning and Advocacy Process, that involves grassroots organisations, people’s networks working with communities, and other support groups like legal advisors and individuals involved in research for forestry rights, shows that only a dismal 3% of the FRA potential has been achieved. Forest lands that ought to have been included within the scope of the FRA remain inaccessible for local communities even after a legitimate right in their favour has been recognised.

Overcoming bureaucracy

The performance of FRA has been this poor due to deep structural and institutional issues. To begin with, the FRA is implemented not by the Ministry of Environment, Forests and Climate Change but the Ministry of Tribal Affairs, which is highly understaffed with low resource allocation. State implementing agencies are in a greater state of debilitation owing to similar institutional shortcomings.

Furthermore, merely passing an Act such as the FRA without truly defining the role of the forest bureaucracy that has been operating under other forest legislations and policies, has led to conflicts of interest within the government machinery itself. In cases where FRA nodal agencies want to equitably distribute land titles and access rights to local communities under the Act, they are met with reluctance and even opposition by forest officials and rangers.

When a certain kind of forest bureaucracy has been operating even before independence, it is difficult to change such attitudes overnight. This is procedural inertia at work: It can be observed in other sectors in India, where the law itself may have managed to be progressive, yet its realisation remains constricted in the hands of a gargantuan bureaucratic network of officers who refuse change.

“Ma, Mati, Manush” no longer ruling the roost in West Bengal

West Bengal is one of the lowest-performing states in the country (high performing states include: Kerala, Odisha, Gujarat and Maharashtra). Since the FRA’s operation, the state has managed to transfer only a small number of titles to the Adivasis that have shown evidence of possessing a traditional right to forest land. In many instances, persons in whose name titles have been transferred are not even aware of their ownership rights. These transfers might look good on paper but forest dwelling communities still face a great deal of marginalisation when it comes to the rights of access to forest produce.

The performance is even worse when the other provisions of the FRA, other than the land transfer, are taken into account. Community management, which is the true essence of the FRA itself, is completely non-existent. This is because the state government makes no distinction between jurisdictional capacities of panchayats and gram sabhas for the purpose of capacity building of community members under the FRA. Gram sabhas are organised at the panchayat level, which dilutes the very purpose of the FRA and enables the state to continue managing forests. The tribal affairs department of the West Bengal government also made an open claim that only tribal communities were entitled to receive land titles under the Act, which excludes OTFDs.

A quintessential instance of bureaucratic apathy was seen in 2014. The Range Forest Officer of the Moraghat Logging Range (under the authority of the West Bengal Forest Development Corporation), wrote a letter to the gram sabha of North Khairbari forest village in Alipurduar district of West Bengal. The letter asked to grant permission to carry out Clear Coupe Felling in the same area claimed by the resident community as a Community Forest Resource under the FRA. This came after a long struggle of the forest villages in northern West Bengal protesting against coupe felling operations in the Dooar forests. In West Bengal, a great deal of work is yet to be done. A huge number of individual and community claims are pending with the implementation authorities that require urgent attention.

How FRA can maximise its potential

The crux of these problems boils down to the lack of political and bureaucratic will to go ahead with the FRA’s core objectives. The enactment of FRA itself in 2006 stands out as a milestone in Indian political, legal and environmental history. It was an intervention by the Indian government to correct the injustice done to millions of forest dwelling communities. The full potential of FRA, however, can be achieved only if its implementation was coupled with actual support, capacity-building measures and guidance to gram sabhas.

Furthermore, attitudes among forest bureaucrats has to change so as to allow for better coordination between the forest and tribal affairs departments, and a clearer understanding of the FRA itself. The fundamental questions of who owns the forests, who has access to its resources and produce and who is best suited to manage and conserve them can no longer be ignored.

Armin Rosencranz is a lawyer and political scientist. He is the founder of Pacific Environment, an international environmental NGO. He was formerly a trustee of Stanford University. He is currently a professor at Jindal Global University, Sonepat. Zainab Lokhandwala is a recent LL.M graduate of National University of Juridical Sciences, Kolkata and a former student of Dr Rosencranz.