How the FRA Is the Last Line Against the Environment Ministry's Arbitrariness

The government has continued to delay or deny forest rights in tiger reserves, and the environment ministry is yet to notify any forests as critical wildlife habitats till date.

Forests were originally a state subject but were elevated in 1976 to the Centre’s attention by bringing them under the concurrent list (42nd amendment to the Constitution). So forest and wildlife, once with the Ministry of Agriculture, became the full-fledged Ministry of Environment and Forests in 1985, and included climate change in 2014.  The Ministry of Environment, Forest & Climate Change (MoEFCC) is today tasked with protecting and conserving the country’s natural resources – its biodiversity, forests and wildlife – and with controlling pollution.

However, its longstanding authority over forests came to an unceremonious end in March 2006 when the Centre moved “all matters, including legislation, relating to the rights of forest dwelling Schedule Tribes on forest lands ” to the Ministry of Tribal Affairs, to the delight of forest-dwellers across the country. However, the MoEFCC refuses to heed this order and continues to defy the law and by extension Parliament.

The Union environment ministry is perhaps the most important ministry, at least by the size of its territorial jurisdiction. No other department lords over such a vast area – almost a quarter of our country – and in which reside tigers, India’s national pride, as well as millions of tonnes of timber to divert and land to occupy.

Specifically, the MoEFCC covers over 70.17 million ha (2015), which is 21.35% of India, increasing from 59.8 million ha in 1949. Armed with a totalitarian forest regime founded on the colonial Indian Forest Act 1927 – which is also the basis for the Wild Life Protection Act 1972, the Forest Conservation Act 1980 and the Compensatory Afforestation Fund Act 2016 (with funds of Rs 52,000 crore from forest diversion). No wonder then that the power of the forest bureaucracy has grown in leaps and bounds and, for example, the proposed amendment to the Indian Forest Act 1927 earlier this year indicates how much more power the ministry seeks.

The Wildlife Protection Act (WLPA) 1972 extended the scope of the law to conserving wildlife in a protected area regime. In this framework, national parks are effectively inviolate zones and wildlife sanctuaries can have restricted rights as determined by the forest bureaucracy. The amount of forest land classified as protected area has increased accordingly: from five national parks in 1970 to 104 covering 4,050,103 ha today; from 62 wildlife sanctuaries in 1970 to 543 covering 11,893,180 ha today.

In 2006, the government added tiger reserves – until then an administrative category under Project Tiger, launched in 1973 – as a new legal type of protected area by amending the WLPA 1972. It consists of a critical tiger habitat (CTH) as the inviolate area, and a buffer area. A few months later, Parliament overrode CTH with the critical wildlife habitat (CWH) through the the Forest Rights Act (FRA) 2006 (FRA). The major difference between the two classifications is that that while CTH could be diverted for non-forest purposes, CWH – once notified – couldn’t be diverted.

However, MoEFCC, which has been diverting forest land at a brisk pace, has not notified any forest as CWH till date. Even the CWH guidelines, which MoEFCC was to notify, were readied only in January 2018 after various legally unsustainable drafts in 2007 and 2011 had to be withdrawn. The ministry is also yet to notify the scientific and objective criteria for CWH itself.

But even though these crucial pieces of information don’t exist, Maharashtra’s principal chief conservator of forests (wildlife) has notified expert committees to identify CWHs in 53 national parks and wildlife sanctuaries in the State, including in tiger Reserves. Thankfully the Bombay high court stayed the public hearing of CWH notification in September this year because the criteria for identifying CWH hasn’t been spelt out. CWHs, like CTHs, are to be made inviolate.

‘Inviolate’ does not mean free of humans, nor do the laws require them to be; ‘inviolate’ means requiring special care because the forest areas are threatened with irreversible damage to both wildlife and forest-dwellers. Officials and workers can provide such care by continuing the existing rights or by modifying them if and as necessary. If there is no way for wildlife and forest-dwellers to coexist, the residents can be resettled with their consent.

Officially, there are 2,808 villages inside CTHs. But contrary to the provisions of both the WLPA and the FRA, the Centre has evicted 14,441 families from CTH in spite of their rights as forest-dwellers and without any compensation. Another 42,398 families await the same fate. Through Project Tiger, the government has set up a compensatory package of Rs 10 lakh but this is grossly insufficient. Additionally, officials presented it as a ‘voluntary village rehabilitation plan’, in a devious script to circumvent mandatory legal requirements, including providing alternative livelihood under the WLPA and the FRA.

MoEFCC also notified 31 tiger reserves within days in 2007 to beat the FRA rules, which were to be notified on January 1, 2008, thus securing 2,925,202 ha. The ministry’s action disregarded procedures prescribed in Section 38 V of the WLPA, under which these tiger reserves were defined and notified. The number of tiger reserves has now risen to 50, covering 7,102,710 hectares of land.

The government has continued to delay or deny forest rights recognition in tiger reserves. To give it an official cover, the National Tiger Conservation Authority (NTCA), an MoEFCC wing, banned the recognition of rights in CTH in 2017, pointing to the absence of CWH guidelines. However, the NTCA is not authorised to issue such notification.

The National Commission for Scheduled Tribes took this issue up with NTCA but to no avail. It was only in March 2019 that the NTCA withdrew this order, after it became unsustainable in light of MoEFCC having notified the CWH guidelines in January 2018. Despite officially conceding the law, that CWH overrides CTH, this is yet to have an impact on the ground. The arbitrariness and illegalities continue even now; for example, tribals in the Mudumalai Tiger Reserve in Tamil Nadu have alleged that have been cheated off a major portion of the 10 lakh rupees they received.

This seven-decade-old colonial legacy has extracted a heavy toll on India’s forests, wildlife and forest-dwellers, and has tarnished the forest department and the forest bureaucracy. The FRA was a shining result of the democratic expression of the people’s will – quite unlike the Indian Forest Act – and brings democracy into the forests. Its provisions give us, for now, a fighting chance to save the forests and all those who depend on them.

C.R. Bijoy is with the Campaign for Survival and Dignity and engaged in examining natural resource conflicts and governance issues.