Changing dimensions of forest rights
Dr. K. Ratnabali
Forest and its surrounding areas have been the natural habitat of majority of Tribals. It forms the source of sustenance and resource base for the subsistence economy of many tribes. Further much of their culture and belief systems are intertwined with forest. Many sacred natural sites are strewn in the forest and myths are weaved into such spaces. In the absence of written history such spaces may also hold the key to their past.
For centuries tribal who dwell in forests have lived there in harmony with other elements of the biosphere, rooted themselves and drawn life from it. Through generations of interaction with their environ, tribal have been able to strike a balance between them and the forest resulting in some sort of symbiotic relationship.
When forest was started to be viewed as a resource for commercial exploitation, the need arose for defining who will have control over it. Sikoretal defined forest tenure as the right, whether customary or statutory, that determines who can hold and use forestlands and resources, for how long, and under what conditions. Through the lens of the customary tenure, forest communities are the rightful owners and managers because they have ancestral claims over them that predate the advent of the state. But after the establishment of state and its legal system, forest became a commercial commodity to be exploited and ownership defined and demarcated as per norms alien to such forest communities.During the British rule, to meet the demands of England, forests in India were commercially exploited without any conservational approach and due regard was not given to the vital bond shared between tribal and forest. In fact teak timber was given the status of state property and its trade became strictly regulated through the first forest policy called “Charter of Indian Forest” 1855 by the then Governor General, Lord Dalhousie.
After adoption of the first forest policy, legislations were enacted to give more power and autonomy of the State over the forest such as the Indian Forest Act 1865 which authorized the government to declare forest and wastelands as Government Reserve Forests. The 1865 Act was replaced by Indian Forest Act 1878, under which limited concession was given to each family of right holders by allowing to draw a specific amount of timber and fuel, but sale or barter of forest produce was strictly prohibited.
Overnight a resource over which tribal depended for their sustenance and exercised full autonomy became inaccessible to them and continued practice under the customary tenure became an illegal activity. Large number of tribal uprisings occurred as a fall out of such forest policy adopted by the colonial administration.
The Forest legislations enacted were therefore not merely about forests, but it gave power to control the forest by the colonial rulers, without requiring to compensate for acquisition as government exercised its right over all uncultivated and unappropriated land based on the doctrine of eminent domain.
The most progressive legislation towards forest and tribal relation is the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (hereinafter referred to as FRA). The Forest Rights Act in its preamble acknowledges the historical injustice done to the Scheduled Tribes and Traditional Dwellers (hereinafter referred to as ‘beneficiaries’) due to non-recognition of their forest rights. The purpose of the FRA is to recognize and vest the rights relating to forest to them.
The rights recognized in the FRA are provided in section 3 of Act. The section does not mention expressly their rights over the culturally and religiously significant spaces in the forest. Nevertheless clause (l) of section 3 is of special interest as it is a residuary clause which is meant to cover all those ‘traditional rights’ which are not mentioned in clauses (a) to (k) of the section. This clause includes any residuary right that has not been covered by the preceding provisions but not pertaining to traditional right of hunting or trapping or extracting part of the body of any species of any wild animal.
It is crucial to know what is included in the ‘traditional rights’. As the Act does not define this term, there is a need to determine the same by examining the meaning of the component words, i.e. ‘traditional’ and ‘rights’. The dictionary meaning of the word ‘traditional’ is – ‘of, related to, or in accord with tradition’. The word ‘traditional’ is used here to qualify the word ‘right’ which means that in this context it refers to ‘an established claim over part of a forest land or use of it or use of its produce by the Scheduled Tribes and other forest dwelling communities and is carried on through generations by customs and practice of these communities.
Sub-section (2) of section 3 of the FRA mandates recommendation of the Gram Sabha for clearance of developmental projects by the government for construction of the facilities specified in the clauses of this section. This is a positive step towards enhancing participation of the concerned community in the decision making process involving projects which targets them provided that there is adequate representation of the scheduled tribes or forest dwellers in the Gram Sabha so as to have a say in the decision it takes.
Similarly, in sub-section 2 of section 4 of the Act, forest rights holder can only be resettled or have their rights affected for the purpose of creating inviolate areas for wildlife conservation only if all the six conditions provided in clauses (a) to (j) are satisfied. Mention may be made of clauses (d), (e) and (f) of section 4, which emphasize the need of free informed consent of the concerned Gram Sabha in writing to the proposed resettlement and package which is meant to provide a secure livelihood to the affected as per the law and policy of Central Government as well as necessary facilities and land allocation at the resettlement location prior to resettlement.
Holder of any forest right, and concerned Gram Sabha/ village level institutions are empowered to “ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers is preserved from any form of destructive practices affecting their cultural and natural heritage”.
It is equally important to look at the 2007 Rules framed under the Forest Rights Act. The notification regarding Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 states that the rules have been framed by the Central Government for recognizing and vesting the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers residing in such forests as per the requirements of sub-sections (1) and (2) of section 14 of the Forest Rights Act, 2006.
The rules provide mechanism for the constitution of 1. Forest Rights Committee 2.Sub-Divisional Level Committee 3.District Level Committee 4.State Level Monitoring Committeeand their functions. It also lays down the process for filing, determination and verification of claims by the Gram Sabha and the Forest Rights Committee.
Out of the evidences which can be produced for recognition and vesting of forest rights on individuals, it is interesting to note that
i) Research studies, documentation of customs and traditions that illustrate the enjoyment of any forest rights and having the force of customary law, by reputed institutions, such as Anthropological Survey of India; and
ii) Traditional structures establishing antiquity such as wells, burial grounds, sacred places; may be resorted to substantiate their claims.
Similarly, for community forest rights, even remnants of structures built by the local community, sacred trees, groves and ponds or riverine areas, burial or cremation grounds may be used as evidence. Since all the forest areas occupied by forest dwelling tribal have not been surveyed, much land belonging to them may not have been recorded. Therefore, reliance on evidences other than formal land records to document their land tenure is necessary to translate what is on ground onto the formal records. This is indeed a positive step toward securing the long due rights of the forest dwellers including the Scheduled Tribes.
The approach of looking at the relationship they have with their land from a perspective different than theirs will end up with legislations and policies which are a misfit to the tribal societies and result into further alienation and discontent of this marginalized population. Therefore the state policies must appreciate the relationship tribals have with their ecological environment rather than ignoring or just giving lip service to the distinctive tribal-land relationship, which encompasses every aspect of their lives.
Indeed equity in distribution of the resources or benefits derived from their land, recognition of their identities, experiences and visions, and their participation in political decision-making in matters affecting their own lives will go a long way in holistic development of tribal.
The writer is Assistant Professor, Faculty of Law, Deputy Dean Legal Affairs, University of Delhi.