The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA) aims to redress the historical injustice that forest-dwellers have experienced, particularly the denial of their rights to forest land and resources. This Act, now ten years into its implementation, recognises individual rights to homestead and agricultural land, as well as community rights to access non-timber forest produce (NTFP) and manage and conserve forest resources. As the name suggests, the eligible forest-dwellers under this Act include individuals and communities of both Scheduled Tribes (STs) as well as non-tribals, knows as Other Traditional Forest Dwellers (OTFDs).

The disparate criteria

One of the major limitations of the FRA is the differentiated eligibility of ST and OTFD claimants, which, compounded by the ambiguity in the wording of the Act, has disadvantaged the latter severely. OTFDs are required to prove continuous residence or dependence in the areas being claimed for three generations (75 years). This dates back to a period when most of these areas were under princely states or zamindars, with no survey or land demarcation, and no government records. Thus, these equally deserving communities are unable to produce documentary evidence to support their claims.

While oral histories and testimonials from village elders are legally acceptable forms of evidence, the bureaucratic takeover of the claim process has resulted in this provision being largely ignored. Non-tribals have been a low priority for the nodal agency, the Ministry of Tribal Affairs (MoTA), and are also viewed as ecologically insensitive by the other big stakeholder in the process, the Ministry of Environment, Forests and Climate Change (MoEFCC).

The prejudice against OTFDs in the FRA, which manifests in the under-recognition of their individual rights as well as in the lack of their participation in the pre- and post-recognition phases of community rights, has roots in the initial disagreements over their inclusion. These disagreements came from concerns over possible encroachments by non-tribals into forest and Scheduled Areas, which could have adverse impacts on the population mix, legitimise inward migration, erode traditional NTFP regimes and lead to forest cover loss. Sustained lobbying and political will at the time ensured that their rights were included in the Bill passed in parliament, but this will has been missing at the implementation stage.

Various state functionaries and facilitators in the implementation process interviewed only reinforced the largely prevalent view – that tribals are the ‘deserving’ category of people with ‘genuine claims’ and non-tribals are encroachers and opportunistic claimants, who are ‘not that dependent’ on forest resources. This has led to systematic discrimination against OTFD communities, which needs immediate attention.

Field research in Chhattisgarh, Jharkhand, Maharashtra and Odisha has shown how disparate verification criteria, confusing nomenclature, intra-society dynamics, misinformation propagated by opponents, lack of awareness and mobilisation amongst communities, no targeted support by civil society and the apathy of implementing agencies have done a serious disservice to non-tribal forest-dwellers, with implications like social divisions and inequality at the village level.

The roots of discrimination

The rights of forest-dwellers, appropriated by former colonial rulers, were further denied in post-independence policy, which labelled both tribals and non-tribals as ‘encroachers’ and subjected them to violent evictions. Prior to the FRA, some piecemeal measures were taken by state and Central governments to pacify uprisings of the forest-dwellers and civil society movements. These measures, though not always effective, did not make a distinction between tribal and non-tribal forest-dwellers for the most part. Counter-measures by conservationists and courts, which stayed regularisation and NTFP collection, halted the re-reservation of forest land and banned any rights in Protected Areas (PAs), hugely impacting livelihoods of tribal and non-tribal communities.

Regularisation attempts before the FRA

The forest question entered mainstream politics in the run up to the 2004 elections and was on the Common Minimum Programme of the United Progressive Alliance, which came into power. The prime minister’s office (PMO) initiated the process of settling the rights of forest-dwellers and converting forest villages to revenue villages, and concluded that the real solution lay in new legislation.

A look at the detailed process of drafting the Act reveals that the various actors who were involved in its creation, including tribal rights movements, anti-evictions and land rights movements, the Campaign for Survival and Dignity (CSD), MoTA, MoEF, the ruling Congress party leadership, the political Left, the conservation lobby, the PMO, etc., all had a different idea of what the problem at hand was. At different stages, these various actors controlled the drafting and brought it in line with their respective conceptions of the solution, and this was finally subjected to last-minute political negotiations.

With no single view reigning, the final document ended up with some provisions pushed by each actor. While participants like the PMO, technical support groups (TSGs) and the MoEF flip-flopped on their position on the inclusion of OTFDs, the nodal agency, MoTA, was consistent in its position that the Act must be exclusively for STs. In a compromise, the clause ‘provided they have lived in forests for three generations’, pertaining to OTFDs, was inserted at the final stage to ensure that the Bill was passed.

Thus, the FRA differentiates in the eligibility and criteria for verification (in Section 2) of rights of STs and OTFDs. While STs must prove that they have ‘primarily resided in the forest or forest land prior to 13-12-2005’, OTFDs must prove that they have ‘primarily resided in forests or on forest lands for three generations (75 years) prior to 13-12-2005’. Also, while STs have reservations to ensure their participation in the institutions prescribed by theFRA – like the Forest Rights Committee, Community Forests Resource Management Committee (CFRMC) and even in the panchayat representatives of sub-divisional level committees and district level committees – there is no measure to guarantee OTFD participation.

Inclusion of OTFDs in implementation

There is no national level data on FRA implementation for OTFDs. Discussions with implementers and experts point to low levels of recognition of rights and participation in planning and management among OTFDs. For the four states studied, disaggregated data on implementation, up to February 2018, was made available for Chhattisgarh, Maharashtra and Odisha.

The overall percentage of claims by OTFDs is very low, at 27%, 30% and 2% of the total claims for Chhattisgarh, Maharashtra and Odisha respectively.

https://thewire.in/rights/the-other-in-the-forest-rights-act-has-been-ignored-for-years