Forest rights act under scrutiny

Environment ministry does not seem open to criticism

By Kumar Sambhav Shrivastava
Published: Tuesday 15 February 2011

imageTHE Union government is reviewing its landmark initiative, the Forest Rights Act, four years after enacting it. The aim is to find how to strengthen the law which was legislated to ensure the traditional rights of 100 million forest dwelling people in the country. Two high-level groups submitted their assessment in the first week of January.

But it seems the Union ministry of environment and forests has made up its mind not to accept their criticism. On January 13, Director General of Forests (DGF) P J Dilip Kumar circulated a note in the ministry tearing apart the review report submitted by the National Forest Rights Act Committee (NFRAC). Criticising the role of the forest department and tribal affairs ministry, the report said there are problems with the way the law has been implemented.

The joint committee of the environment and tribal affairs ministries, set up under former bureaucrat N C Saxena in April last year, conducted meetings and public consultations across the country. It pointed out the law is yet to be implemented in 11 states. In most states, majority of individual claims over dwellings and farms in forestland were rejected. Traditional rights of communities over forest resources like forest produce, waterbodies and pastures were hardly recognised. Institutions not constituted as per the law and faulty ways of processing claims are major hurdles, the committee noted. It has called for a second phase of implementation with focus on community and rejected individual claims.

A few days later, the National Advisory Council (NAC), the advisory body of the UPA-led Central government, said it is unhappy with poor implementation of the law. It prepared a set of draft amendments and sent it to the environment and tribal affairs ministries. Both the ministries have sought a month’s time to review NAC’s draft recommendations. When asked about the NFRAC report, a senior official in the environment ministry said, “The tribal affairs ministry is 95 per cent responsible for implementing the law. Our role is just of a facilitator.” Despite repeated attempts, no one in the tribal affairs ministry was available for comments.

DGF Kumar also refused to buy NFRAC’s recommendation, which said the government should not insist that the prior occupation of 75 years is a must for other traditional forest dwellers to claim forestland. “This will open the floodgates to parcelling of unbroken forestland to private users,” he said (see Forest department’s snub).

Activists and those within the committee have also picked holes in the main report of the NFRAC, though for different reasons. They have criticised the report for its soft stand on issues that impinge on several other rights guaranteed by the law—right to collect and sell minor forest produce (MFP), for instance. The report recommends that trade of all MFPs, except tendu leaves, be deregulated and state governments should announce minimum support price for them. Ten dissenting members of the 20-member committee, however, recommend deregulating all MFPs and shutting the forest development corporation that acts as a broker between the community and government. Their view has been appended as “alternative recommendations”.

The trade of MFPs like tendu leaves, mahua and saal seeds is controlled by state governments. The monopoly curbs competition as well as restricts benefits to collectors and earns high revenue for the government (see ‘Major battle over minor produce’, Down To Earth, November 1-15, 2010). Civil society groups have long been demanding free flow of MFPs so that communities can earn good prices from them. “Why can’t tendu leaves be deregulated like other MFPs?” asked Shankar Gopalakrishnan of Campaign for Survival and Dignity, a Delhi non-profit that works for tribal rights. “This is nothing but an attempt to protect the revenue that the government earns from tendu leaves.”

Besides, NFRAC recommends that the right to protect and manage forest resources can be transferred from the forest department to gram sabha only if the community’s claim is recognised under the Forest Rights Act. In case the gram sabha is not keen to manage community forest or their claim is declined, joint forest management (JFM) committees should work under gram sabha, the main report notes. JFM committee is a village-level committee that is formed and governed by the forest department.

Talking to Down To Earth, Saxena said, transferring power to communities without their claiming right may not work because forest management depends on how “cohesive and capable” the communities are. “Where the communities are not cohesive to protect and manage the resources, JFM should continue as an interim measure. Gradually the forest department should withdraw and JFM be converted into community forest management,” he said.

“We did not agree on the coexistence of the Forest Rights Act and JFM,” said Roma, a dissenting committee member. Though JFM committees will be under gram sabha, their structure is such that they will be governed by the forest department, she added. Roma and the other dissenting members have suggested scrapping of JFM and creating an alternative model on the line of the forest rights law in areas where community claims are declined. “Communities have the right to democratically manage the forest they use, regardless of whether they are ready or capable or cohesive,” says the alternative recommendations.

Such differing opinions have left the government with a good scope to interpret the recommendations according to its convenience, rued Gopalakrishnan. Activists are pinning their hopes on the draft recommendations of NAC, which calls for giving more authority to gram sabha over forest rights and curtailing the role of forest department. It calls for suo moto transfer of power to manage community forest resources to gram sabha in all villages irrespective of the claims filed. It also suggested scrapping the confusing marginal note in section 5 of the law that limits community rights of protecting forest resources to areas where forest rights are recognised.

Saxena panel highlights problems in implementation; NAC has concrete suggestions
Issues of contention Recommendations of NFRAC NAC’s recommendations
Gram sabha is formed at panchayat level. This makes it difficult to recognise community rights Constitute gram sabhas at hamlet or revenue village level The government should accept village self-rule as mentioned by Panchayat Extension to Scheduled Areas (PESA) Act in all villages
People’s participation in the process of recognition of rights is not followed for which claims are often wrongly rejected or modified. Even if claims are accepted, rights certificates are not recorded Civil society groups should be involved at all levels of implementation. Tribal affairs ministry should clarify that the rights certificates issued should be recorded in settlement records and the land with individual rights be treated as private land. It must- clarify if it should be converted to revenue land Forest officials’ consent isn’t needed to accept claim. Higher committees should not reject a claim or modify it unless an appeal is filed against it. In case of insufficient evidence, claims should be remanded to gram sabha. Lands rights be recorded and converted to revenue land
Right to protect and manage community forest resources have hardly been implemented; the right is not even mentioned in many states The village and government can have a flexible arrangement of sharing authority over forest resources as an interim measure. Gradually the forest department should walk out and communities should take over Villages should be presumed to have community forest resource and hence rights over them. Failure to recognise this be explained. Forest department should respect gram sabha’s powers. Confusing marginal note in the Act that limits forest rights to areas where the rights are recognised be removed
Joint Forest Management In areas where the claim of a community to manage its forest resources has been accepted JFM committees should be dissolved. If claims are not accepted, JFM should work under gram sabha JFM should be replaced with Community Forest Management under the Act. Funds for forestry should be channelled through National Rural Employment Guarantee scheme
Rights over MFP are not recognised in most areas. The right is not even mentioned in the claim form in many states State governments should stop subsidising MFP to industries, and de-regularise all MFPs, except tendu leaves. Governments should announce minimum support price (MSP) for MFPs A rule should be introduced giving collectors the freedom to sell and transport MFP, subject to regulation by the gram sabha. State procurement agencies should be mandated to provide MSP



What is FRA
How government is subverting forest right act
State inaction
Is bamboo a tree or a grass?

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