Article co-authored by Dr. Armin Rosencranz and Zainab Lokhandwala on "Realising forest rights still a distant dream" - The Statesman

March 03, 2017 | Dr. Armin Rosencranz and Zainab Lokhandwala

Among many laws, policies and practices inherited from the British, exclusive state control over forests and its resources is one that 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, innovations 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 on the fact that areas with a major biodiversity concentration overlap with indigenous peoples’ inhabitation. According to the World Resources Institute, 80 per cent of the world’s biodiversity coincides with indigenous territories. Some of the largest tropical forests, boreal forests and mountainous biomes that continue to be the focus of conservation efforts, are occupied by  indigenous tribes and local populations. This harmonious confluence of forests and human habitation that goes back hundreds of thousands of years raises the question of whether traditional methods of conservation that include the demarcation of national parks and wildlife sanctuaries from their local populations are logical or even legitimate.
 
Yet, India’s experience with issues of forest conservation, forest rights and human rights of indigenous peoples can best be described as the continuation of the ‘British hangover’. This is because the laws, 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.
 
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 to meet the needs of industries and urban mainstream populations. The Act aims at securing traditional rights over forest land and community forest resources, and establishes democratic community-based forest governance.
 
In a nutshell, this Act recognizes the genuine legal right of any member of an ST/OTFD over forest land, and renders any eviction or removal therefrom illegal. A decade has now passed since the FRA came into being, yet its implementation has seen no real or concrete change in the scenario prevailing before its coming into force.
A 2016 Performance Report prepared as part of the Community Forest Rights-Learning and Advocacy Process, that involves grassroot 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 per cent 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.
 
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 understaffed, and has access to a very low budgetary and resource allocation. State implementing agencies are in a greater state of debilitation owing to similar yet more aggravated 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 resistance and even opposition by forest officials and rangers.
 
When a certain kind of forest bureaucracy has been operating even before independence, which has always viewed tribal populations and resident communities to be a threat to forests and their resources, it is difficult to change such attitudes overnight. While a lot of debate within the government and judiciary has managed to sway the tide in favour of the rights of such communities, ground level officers remain suspicious of their intentions and apathetic to their plight. This is procedural inertia at work: It can be observed in other sectors in India, where the law itself may be progressive, yet its realisation remains constricted in the hands of a gargantuan bureaucratic network of officers who have operated in a certain way and whose habits are near impossible to change.
 
West Bengal is one of the low 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 adivasis who  have shown evidence of possessing a traditional right to forest land in some of the districts (20,405 acres recognized as individual forest rights and 58 acres as community forest rights vis-à-vis 14,64,127 acres of community or village forest land, i.e. less than 2 per cent implementation). In many instances, persons in whose name titles have been transferred are not even aware of their ownership rights. Transfers such as this may have been done to show something valuable on paper, yet in actuality, forest dwelling communities still face a great deal of marginalisation and discrimination when it comes to rights of access to forest produce.
 
West Bengal’s performance is even worse when other provisions of the FRA, other than mere land transfer, is taken into account. Community management, which is the true essence of the FRA itself, is completely non-existent, owing to the fact that 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 if 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, when 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, asking the sabha 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.
 
The position in Bengal seems even more stark when juxtaposed to that in the neighbouring state Odisha, wherein several gram sabhas (in a one-of-a-kind public referendum) rejected Vedanta’s plan to carry out bauxite mining in the Niyamgiri hills in the 2013-14, which the government and the courts of Odisha supported. This was done only after a lot of grass-root level public movements pressured the government and the courts to take their side, and after this story had already received a lot of media attention thereby making it that much harder to turn a deaf ear towards the plights of the communities involved.
 
The crux of these problems boil down to the lack of political and bureaucratic will to go ahead with the FRA’s core aims and objectives. The enactment of a legislation such as the FRA in 2006 stands out as a milestone in Indian political, legal and environmental history. It was an intervention by the government to correct injustice done to millions of forest dwelling communities. The full potential of FRA, however, can be achieved only by its implementation as if it were a mission, coupled with actual support, capacity-building measures and guidance to gram sabhas and implementing agencies at all levels; and holding such bodies accountable for implementation.
 
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. 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.
 
The authors are, respectively, professor of law at Jindal Global University, Sonipat and a recent LL.M graduate of National University of Juridical Sciences, Kolkata.