The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (henceforth FRA) was passed by the central government to ‘recognize the historical injustice’, done to the forest-dwelling communities and Adivasis. The recognition vests forest rights and occupation of forest land in the hands of forest-dwelling communities and Adivasis. This was seen as a major paradigm shift in the States policy towards forest conservation from a centralist top-down approach of governance to bottom-up pro-people participatory approach.
Recently Supreme Court of India passed an order for the removal of encroachments(?) form the Forest land whose claims have been rejected. If the act is aimed for ‘recognition of historical injustice’ and being implemented since 2008. The central question remains, to what extent the FRA has achieved the above-mentioned goals after 11 years of its passage? One way to reach the answer lies in understanding the actual implementation of the act. In this article, I will map down the trajectory and obstacles for the implementation of the FRA at various levels in the context of Himachal Pradesh. The analysis is based on the official government documents and on the fieldwork carried out for the period of 2 months in Himachal Pradesh.
The Governance Structure of the FRA-
The Ministry of Tribal Development for all India and Tribal Department of a particular state is the nodal agency for the implementation of the FRA. Under the Tribal Department comes the State Level Monitoring Committee (SLMC) as the name suggests, it monitors the recognition and vesting of Forest Rights. Under the SLMC the act mandates the formation of the District Level Committee (DLC) which is the apex authority according to the act for the approval of the rights by the State. The Sub-Divisional Committee falls below the DLC. It examines the resolution passed by the Gram Sabha and prepares the record of rights. If the Sub-divisional committee accepts the claims then they are passed to DLC for the approval. Gram Sabha’s are responsible for initiating the process for determining the extent and nature of the rights to be claimed under the FRA. The Gram Sabha has to elect a separate Forest Rights Committee which looks after the procedural and legal matters of the FRA. So, to summarize the implementation mechanism for FRA is as follows-
It is important to analyze the implementation at each stage. Lets start with from SLMC as the decision made by SLMC have impact on entire state.
1. The State Level Monitoring Committee (SLMC)
As mentioned earlier The State Level Monitoring Committee looks after the monitoring of the entire rights and claims in a particular State. Analysis of the minutes of the meetings of the meeting, throws light on the implementation of the FRA act. SLMC Meeting 22nd July 2008 says – “The Committee decided that the Act may be implemented in the Tribal Areas in the first phase and keeping in view the experience. The Act may be implemented in the rest of the State.”
The Section 1 (2) of FRA says “It extends to the whole of India except the State of Jammu and Kashmir.” Act says it applies to whole India form its date of implementation regardless of the tribal area or non-tribal area. In this backdrop, the approach of the SLMC clearly takes a diversion from the FRA. But in the case of Himachal Pradesh due to the decision by the SLMC, the FRA was implemented only in the tribal areas. This approach was continued from 2008 to 2013. SLMC Meeting 22nd May 2013 notes “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is to be implemented throughout the State.” The act came into force in 2008 it took five years for the SLMC to implement act throughout the state. This decision of non-implementation of FRA in non-tribal areas kept 57% of Himachal Pradesh outside the ambit of the act.
According to the FRA, the main role of SLMC is to “devise criteria and indicators for monitoring the process of recognition and vesting of forest rights”. The role of SLMC is to monitor and it does not have the authority to decide where to or where not to implement the Act. Clearly, the SLMC was overreaching its jurisdiction by interfering in the implementation matters.
Role of District Level Committee and Sub-Divisional Committee-
Though the Gram Sabha is the main entity which is responsible for the implementation of the FRA. Lower level bureaucracy, Revenue Officer come into the picture for verifying the rights. Not only this Sub-divisional committee and District Level Committee have a significant proportion of the bureaucrats. Deputy Commissioner/Magistrate, is the head of DLC who passes the final order for the claims and rights. In this context, these bureaucrats are the major stakeholders having a high level of influence for the implementation of the FRA. So, their interest and approach are definitely going to influence the implementation of the act. In the span of my fieldwork, I was interacting with Deputy Commissioner of Mandi district when a delegation of ‘Himachal Van Adhikar Manch’ was meeting him for delay in the approval of FRA rights. The Manch argued that there claims for the forest rights are pending at the DLC level and neither the claims are accepted nor rejected. He assured people that he will look into the matter a standard bureaucratic answer. In the unofficial talks, the Commissioner said “Actually the claims are legally sound to be accepted but I have pressure from above to not accept the claims as more and more people will start to approach. This will create a hurdle for the development projects carried out by the government.”
Naturally the question in my mind was what hurdle the Deputy Commissioner was talking about? To answer the above question, we need to dig deeper into the act. The FRA rules says “The Ministry of Environment & Forests, vide their letter No.11-9/1998-FC(pt.) dated 30.07.2009, as modified by their subsequent letter of the same number dated 03.08.2009, has issued directions, requiring the State/UT Governments to enclose certain evidences relating to completion of the process of settlement of rights under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, while formulating unconditional proposals for diversion of forest land for non-forest purposes under the Forest (Conservation) Act, 1980. The State Government should ensure that all diversions of forest land for non-forest purposes under the Forest (Conservation) Act, 1980 take place in compliance with the instructions contained in the Ministry of Environment & Forest’s letter dated 30.07.2009, as modified on 03.08.2009.”
Now the question arises what the letter has to say about the compliance and how it affects the development? For this let us see two important clauses of the letter-
- “A letter from each of the concerned Gram Sabhas, indicating that all formalities/ processes under the FRA have been carried out, and they have given their consent to the proposed diversion and the ameliorative measures if any, having understood the purposes and details of proposed diversion.”
- “Obtaining the written consent or rejection of the Gram Sabha to the proposal when there was a quorum of minimum 50% of members of the Gram Sabha present.”
The letter clearly empowers and vests rights in the hands of the Gram Sabha. Now let us see how it affects the “development”- Suppose a hydel project is being carried out by the State government with the help of the private company under PPP model and it is going to affect say one thousand villages. The government has to take written consent from all the 1000 gram sabhas with minimum fifty percent quorum. In contrast, if the act is not implemented it has to take just the permission of the Forest Department and other government agencies and it is easier to obtain rather than going to the people. The voice-forms the grassroots can also be easily curbed. But if implemented the voice of grassroots will get legal backing.
Due to the above reason the collector was having the pressure for not passing the Forest Rights claims as it goes against the ‘development agenda’ of the state government. The District Level Committee (DLC) headed by the collector is the supreme authority for the recognition of the rights according to the act. If the rights are not recognized by the DLC who is a supreme authority due to the ‘pressure’ then the intentions of the act get fundamentally challenged. The Act then just becomes a piece of paper.
Role of Forest Rights Committee (FRC) and Gram Sabhas-
The FRA mandates formation of FRC at every village level and not at the Panchayat level through electing the members from Gram Sabha. To elaborate, if there is a Panchayat for three villages. Then each village will have a Gram Sabha and will elect its own FRC. So, the Panchayat will now have three FRCs. But In the context of Himachal Pradesh, the FRCs were formed at Panchayat level which goes against the FRA act. Due to this formation of FRCs was delayed which further delayed the implementation of the Act. According to the official data in 2015 that is after seven years when the act came into being, the FRCs were not formed in 28% of villages in Himachal Pradesh. The areas in which FRCs were formed also needs to be looked into. I was having a conversation with a few men and women who were members of FRCs. It was surprising to find that many men and women were not knowing that they are part of FRC’s and there exists an act named FRA. To understand the scenario in detailed I interviewed vice-president of a Panchayat in Kangra district who was also FRC head of his village about the formation of FRC. I asked him “If people don’t know about FRA and FRC, how they are a member of it?” to which he replied “Our Panchayat got a government order for the formation of FRC in the village. Also, I received a call from bureaucrat to complete the procedure of formation. We were not having enough time to call a Gram Sabha. So, I picked certain names and made them members of FRC. Later I collected the signatures.” If FRCs are created in such a way then they are just going to serve the paper rather than on the ground.
I have shown how at each level of the governance mechanism starting from the State Level Monitoring Committee which stopped the implementation of Act in non-tribal areas. On top of this comes District Level Committee who are reluctant to pass the claims due to the ‘pressure’ from above. Then at village level the FRCs are formed in many villages just on paper. FRA is one of the rare policy documents which has tried to address all the issues arising at the implementation level in the policy document itself. Though the policy document states clear cut agenda of the act when it comes to the implementation the ethos and spirit of the act are ignored form lower level bureaucracy to the state level bureaucracy including the courts. It is just a perception created by the State that FRA gives power to the people, if you don’t question fundamentally its implementation. The time has come to question the judgement and the State for the proper implementation of the FRA and give real power in the hands of people.
If we see the implementation at the district level, where the act is finally going to get approved the non-compliance due to the ‘pressure’ by the State government in the name of development questions the very fundamental idea of ‘development, where people are not empowered to have legal backing for there voice when the same voice is going to challenge the so called development discourse of the state. To amplify the matter further, the power to the voice of people is now curbed by the Supreme Court which halts the implementation of FRA. The same supreme court which is the guardian of the voice.