The Supreme Court order of February 13, 2019, threw the spectre of mass eviction over millions of tribals from the forest areas. This provoked protests across the country, but not in most of the northeast. The court directed those claimants whose claims had been rejected under the Forest Rights Act (FRA) 2006 to be evicted. This order has been kept on hold until the next hearing, scheduled on September 12.
The order was issued in Wildlife First & Ors vs. Union of India in WP(C) 109 of 2008 filed by forest officials and a handful of wildlife NGOs challenging the constitutional validity of the Act.
Except for Assam and Tripura, this order didn’t threaten evictions in Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland and Sikkim. The reason is that these states did not implement the FRA though the law was applicable to them. These states are all heavily forested and have an overwhelming tribal majority (except Manipur and Sikkim where only a third are tribals). Their forest cover ranges from 26.76% in Mizoram to 82.31% in Sikkim.
FRA at bay
Mizoram extended the FRA after its legislative assembly cleared it in 2009 as required under Article 371 (g) of the Constitution, and notified it in March 2010. The Nagaland assembly, as required under Article 371 (a), is yet to decide whether it wants this law although a committee has been looking into it for years now.
The Nagaland government has claimed that the “land holding system and the village system of the Naga people is peculiar in that the people are the landowners. There are no tribes or group of people or forest dwellers in Nagaland. Hence, the FRA per se may not be applicable to Nagaland.”
The Arunachal Pradesh government feels that, “barring a few pockets of land under wildlife sanctuaries and reserved forests, most of the land in the entire state is community land. Therefore [the FRA] does not have much relevance in Arunachal Pradesh”.
According to the Manipur government, “… tribal communities and tribal chiefs are already holding ownership of forest land as their ancestral land in non-reserved forest area. Therefore, implementation of FRA is perceived as minimal”.
Meghalaya claims that “96% of forestland is owned by clan/community/individuals, implementation of the Act has therefore limited scope.” Sikkim has declared that there are no forest-dwelling and other traditional forest-dwellers “in the true sense of the terms. Most of the STs of Sikkim hold revenue land in their own name and they are not solely dependent on the forests for their livelihood”.
However, none of these explanations excuse these states from implementing the FRA. Forty-five percent of the forests are notified forests in any case where the FRA is applicable.
Since forest-dwellers reportedly haven’t filed any claims under the FRA, there are also no rejections and no evictions to worry as a result of the Supreme Court order. As of March 2019, Assam had recognised 58,802 claims and issued titles with zero rejections. Tripura had issued 127,986 titles for 186,212 ha and rejected 68,610 claims.
Community forests as unclassifed forests
Most of India’s northeast, unlike other parts of the country, had fought for and retained control over their lands, and whose use is now governed by traditional systems. The national forest and revenue laws are colonial in origin and essence, and are kept at bay. So too was the highhanded officialdom.
The Forest Survey of India has categorised about 55% of the recorded forest in the northeast ‘unclassed’, or ‘unclassified’, forest. This, it is believed, includes the traditionally community-controlled forests. These are not notified as ‘reserved’ or ‘protected’ under the Indian Forest Act 1927 (or its state versions). While Nagaland has a whopping 97.29% under this category, all others have a third or more of their forests, with the exceptions of Sikkim (0%) and Mizoram (20.53%).
However, the forest laws were extended to ‘unclassified’ forests after the Supreme Court’s landmark judgment in December 1996. It stated that the term “forest land”, occurring in section 2 of the Forest Conservation Act 1980, “will not only include ‘forest’ as understood in the dictionary sense but also any area recorded as forest in the government record irrespective of the ownership”.
This is why the FRA included ‘unclassified forests’ in the definition of ‘forest land’ in section 2(d), along with undemarcated forests, existing or deemed forests, protected forests, reserved forests, sanctuaries and national parks. This was to ensure that the rights of forest-dwellers in the northeast continue to be secured. To avoid any ambiguity, the FRA also included a northeast-specific provision under the list of forest rights in section 3(1)(j), namely that “rights which are recognised under any state law or laws of any autonomous district council or autonomous regional council or which are accepted as rights of tribal under any traditional or customary law of the concerned tribes of any State”.
Yet the governments and forest communities remain firm in their belief that community forests are secure in their control.
The Bharatiya Janata Party government at the Centre is all set to bring ‘unclassed’ or ‘unclassified’ forests’ under the purview of the Indian Forest Act with a (proposed) amendment. The Union environment ministry circulated a proposal to states on March 7 to this effect. Not surprisingly, forest communities are intensely opposed to this idea as well as against the draconian powers to be conferred on the forest bureaucracy.
Forest officials will be empowered to use firearms with impunity, arrest without warrant, impose collective punishments, take away forest rights, etc. – opening them up to corruption. It wouldn’t be far-fetched to say the forests could to be converted into a veritable war zone.
With these developments, FRA implementation becomes a powerful legal instrument to keep away the forest bureaucracy from grabbing community forests in the northeast.
C.R. Bijoy is with the Campaign for Survival and Dignity and engaged in examining natural resource conflicts and governance issues.