Historical Justice or Ecological Threat?: A Critical Analysis of India’s Forest Rights Act

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Introduction

In India, for centuries, the forest dwelling communities have lived in a state of invisibility, where their rights to land have never been acknowledged or respected. In the pre-colonial times, the indigenous communities residing in forests had customary rights over forest produce. However, this changed in colonial times with the Indian Forest Act, 1927, which gave rise to the system of “forest settlement officers” settling the claims of forest rights. This Act curtailed the rights of indigenous communities residing in forests in the name of forest conservation. This paper first analyzes the FRA’s provisions, then its criticisms and submissions regarding constitutional validity in the Writ Petition Wildlife First v. Union of India, including claims of environmental harm, overlap and inconsistency with the Wildlife Protection Act of 1972, role of Gram Sabhas and implementation failures, while arguing for reform over repeal.

Forest Rights Act, 2006

The first legislation regarding the rights of forest dwellers is the Forest Rights Act of 2006, which provided for the recognition and consolidation of the preexisting rights of the forest dwellers. This Act provides for title rights, use rights, forest management rights and establishment of Gram Sabhas to determine rights of forest dwellers, protect forest resources and ensure compliance with the provisions of the Act. While FRA is a progressive law that ensures social justice, it is far from perfect due to various implementation issues, conflict with the Wildlife Protection Act, 1972 and allegations of environmental degradation.

The constitutional validity of this Act has been challenged before the Supreme Court on various technical grounds and the grounds of causing harm to the environment under Article 21 of the Constitution. Nevertheless, it is indispensable as it is the only Act recognizing rights of Forest dwellers over the forest. If it is held to be unconstitutional by the Supreme Court, it would cause irreparable harm to the forest dwelling communities and the environment.

The preamble of The Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006, states that the act was passed to undo the “historical injustice” committed under the Forest Dwelling community whose rights on the land has not been recorded. The most important feature of this Act was the granting of power to the Gram Sabhas to initiate and determine the process of verifying claims over forest land. The Act provides for acknowledgement of rights of both STs and Other Traditional Forest Dwellers, provided that they meet some criteria, including that of residence in the forest for more than 75 years.

Individuals and communities granted such rights are responsible for the sustainable use, conservation of biodiversity, and maintenance of ecological balance in the forests. The Act provided for decentralisation of forest and resource management by providing for establishment of rights of forest dwellers by gram sabhas and giving the forest dwelling communities the responsibility to conserve the forest. The Act aims to empower Gram Sabhas to make decisions regarding the forest management, which would reduce the external interference and exploitation. The Act recognises right to live in forest land, right to ownership, right to access, collect and use Minor Forest Produce [products available in the forest that do not require felling of whole trees to access] by the community, rights over pattas or leases, and provides for any other traditional rights over forest.

Criticisms and judicial scrutiny

However, there have been many criticisms of this act, the main one being that it is extremely harmful to the environment. This Act grants rights over hectares of forest land which may be used for habitation or cultivation, thus destroying the forest cover therein. Studies indicate that 20.54 lakh hectares of forest land have been granted for habitation and cultivation under FRA in the last 16 years, destroying the forest cover. There is also rampant misuse of this Act, as depicted in the FSI survey that 65% of the rejected 14000 claims has led to substantial loss of forest land, which can be estimated at 11.71 lakh hectares pivotal for climate and environmental protection.

Violative of Article 21:

It is on similar grounds that the constitutionality of the FRA has been challenged in the Supreme Court in the Writ Petition Wildlife First v. Union of India in 2008 (“Writ Petition”). The Petitioners have alleged that indiscriminate usage and collection of Minor Forest Produce is violative of the fundamental right to a clean and unpolluted environment under Article 21 of the Constitution. In Orissa Mining Corporation Ltd vs Ministry Of Environment & Forest, the Supreme Court recognised the role of forest dwelling communities and their traditional knowledge in the conservation of the environment, thus proving that mere coexistence of forest dwelling communities in the forest does not cause ecological harm.

Further, this Act only acknowledges the pre-existing rights of the Forest Dwellers and does not provide for conversion of existing forests into lands for habitat to grant land rights to Forest Dwellers. The Forest Rights Act only acknowledges the pre-existing rights of Forest Dwellers who already resided there and utilized the land for various purposes. It does not provide for conversion of forest lands into lands for habitat inorder to grant rights on land for forest dwellers. The recognition of the rights of forest dwellers on the MFP that they had been using and collecting even before such recognition would not cause any significant change in the usage and hence not cause damage to the environment. Thus, granting rights on these forest lands is not equal to causing deforestation, but ensuring that the indigenous communities have rights that cannot be usurped. Though the misuse and the diversion of forest lands for cultivation is a rampant issue, it is also an issue of implementation that can be solved by using satellite imagery and other methods of calculating forest areas and prevention of acquisition of any areas beyond those identified to be forests.

A Conflict of Laws

Another important critique of this Act is its conflict with the Wild Life Protection Act of 1972 in the context of FRA granting of ownership, habitation, and community rights even in Protected areas, while the WLPA prohibits human intervention in the same. The FRA provides for a new category called Critical Wildlife Habitats, which cannot be allotted to the forest dwellers, which requires consent of the gram sabhas, exhaustion of cohabitation options and a resettlement package. However, not a single hectare of forest land has been categorised as CWH, showing how environmental conservation has taken precedence over the resettlement of tribals.

This is an important ground in the Writ Petition for declaring the Forest Rights Act unconstitutional. The Petitioners argue that since the Wild Life Protection Act is a special law while the FRA is a general law, the Special law would trump general law in case of a conflict. The Supreme Court had in its judgment on Maya Mathew v. State of Kerala, held that if there is a repugnancy between two laws that cannot be reconciled, “where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law.” Thus, since the Section 4(1) of the FRA consists of a non-obstante clause allowing granting rights in all forest areas, including protected areas notwithstanding any legislation stating otherwise, it would prevail over the special law, i.e., the Wild Life Protection Act. Thus, the Forest Rights Act prevails and cannot be held to be inapplicable or unconstitutional. The Forest dwelling communities can be granted land rights in protected areas. This, however, leads to environmental degradation as the protected areas are critical for conservation of natural habitat and human interference may injure those areas. This demonstrates that the Forest Rights Act has given precedence to human development over environment conservation.

Role of Gram Sabha

Further, the constitutionality of the Act in granting such powers to Gram Sabha is also in question. The Gram Sabha is a part of the Panchayat Raj System, is empowered by the Act to perform quasi-judicial functions, including appreciation of evidence, verification of claims by the forest dwellers, and granting consent for diversion of forest lands. The Gram Sabha passes a resolution regarding the claim which is then sent to the Sub-Divisional Level Committee (SDLC), and appeals can be filed against Gram Sabha’s decisions to SDLC and to District Level Committee (DLC). The Petitioner has contended in the Writ Petition that the DLC’s decision to be final and binding is unconstitutional, as there is no representation of State or Forest Department in the hearing, violating principles of Natural Justice. This was remedied by the guidelines issued in 2012, which require the presence of Forest and Revenue departments to participate in gram sabha proceedings.

The framework established under the Forest Rights Act is primarily administrative in nature and includes two levels of appeal within its structure. However, The Report Of The Fact-Finding Committee On The Implementation Of The Forest Rights Act, 2006, stated that gram sabhas “generally lack the capacity to implement the FRA,” which leads to “an ad hoc process for recognition of rights which is contrary to the provisions of the FRA”, thus challenging the effectiveness of the same in practice. Thus, despite the presence of implementation challenges, the administrative process of this act centered around the gram sabha is an effective and constitutionally sound method of implementing the provisions of the Act.

Conclusion

The Forest Rights Act is a landmark legislation that recognises the rights of forest dwellers and attempts to correct the historical injustice against them. While the Act has been praised for its progressive and socialist approach, it has faced significant challenges, specifically balancing conservation of forests with rights of forest dwellers. There have been several issues with the implementation due to a rampant misuse of the provisions of the Act and the Gram Sabhas being unable to effectively implement the provisions. This has led to the constitutionality of the Act being challenged through a Writ in 2008, which is still ongoing until now. If this Act is struck down as unconstitutional, it would lead to the extinguishment of all the rights granted under this Act and would put the forest dwellers in a disadvantageous position again. This would also lead to mass protests, as it happened in 2019 when the SC issued eviction notices to the indigenous community. This Act provides for a decentralized and operational way of governance of issues of forest, which if executed successfully would lead to effective governance of the same. The declaration of unconstitutionality of the Act would not solve the issue but only cause the extinguishment of the rights of forest dwellers and large-scale protests. To address these challenges, policymakers must provide for a better implementation system, rectify the inconsistencies in the Act to improve enforcement of the Act.

[This piece has been authored by S Udayasree, a third-year law student at JGLS.]