The ‘Other’ in the Forest Rights Act Has Been Ignored for Years

Though non-tribal forest dwellers are recognised by the Act, even if ambiguously, state agencies see them as less 'deserving' of forest rights.

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.

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.

Various stages of FRA drafts and the inclusion of OTFDs
Draft Date Agency Inclusion of OTFDs
1 CSD No distinction between STs, OTFDs
2 February 2005 TSG for MoTA Included STs, OTFDs; but OTFDs need verification
3 March 2005 TSG for MoTA STs only, excluded OTFDs
4 (2 drafts) April 2005 MoEF Included STs and OTFDs
5 Nov 2005 PMO STs only, excluded OTFDs
Cabinet approves draft; presented in parliament; appointment of JPC
Recommendations to Parliament May 2006 JPC Include STs and OTFDs
Response to PMO June 2006 MoTA STs only, exclude OTFDs
6 November 2006 GoM STs only, excluded OTFDs
7 December 2006 Cabinet Included STs and OTFDs, OTFDs with stipulation –‘provided they have lived in forests for 3 generations’
Final Bill December 2006 Passed by Parliament Included STs and OTFDs, OTFDs with stipulation – ‘provided they have lived in forests for 3 generations’

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.

The scenario is bleaker when we note the actual number of titles received by OTFDs and the rejection rate.

Roadblocks to OTFD inclusion

The challenges for OTFD inclusion in the FRA process are largely of two kinds. The first category originates in the philosophy of the Act itself, and the second is procedural in nature. The philosophy of the Act has roots in its inception and drafting, as already discussed. The inclusion of differentiated eligibility and verification criteria show apathy and a lack of understanding of social realities at the village. There are no provisions to ensure representation of OTFDs in village level institutions. Procedural challenges prevent the inclusion of OTFDs even where the Act provides for it, through misinterpretation or wilful noncompliance.

Some of the roadblocks to the recognition of rights of OTFDs and their participation in the FRA process are:

Low priority for state machinery

OTFDs are simply not a priority for most of the governments’ implementing agencies. Interviews with various government representatives, ranging from village level officers to block and district level administrators and line department senior officials, have revealed the same mindset – that STs are the ‘deserving’ category of claimants. As noted earlier, the implementing agency MoTA was against their inclusion from the drafting stage right up to JPC arguments. From the claiming stage itself, OTFDs are discouraged from applying or their claims are rejected/kept pending.

Lack of awareness and misinformation

There is almost no information among government and non-government players, and most importantly OTFDs themselves, on what their eligibility is, despite clarifications issued by the MoTA.

A stark illustration is the letter written by Odisha chief minister Naveen Patnaik to tribal affairs minister Jual Oram in June 2017, seeking an amendment of the FRA to include OTFDs. Patnaik said the reason for rejections was OTFDs not having lived on the land for 75 years, when in fact this is not a criterion at all in the FRA. Similarly, there is a prevalent notion that OTFDs have no representation on CFRMCs, with reservations for tribal men (2/3) and women (1/3). Some of this is genuine ignorance, but at times, some of this misinformation is being perpetuated by government agencies to deny claims, as well as by dominant tribal sections in villages to further their control over resources.

Intra-society dynamics

There is a history of non-tribals being treated as outsiders in forested areas, and particularly in Scheduled Areas, where there are special provisions in land and tenancy laws for the tribal populations, such as in the Santhal Pargana areas of Jharkhand. At the village level, there exist varying degrees of hostility playing out between tribals and non-tribals in various ways, like the rejection of OTFD claims and blocking of their representation in FRCs and CFRMCs.

Scheduled Castes (SC) and Other Backward Classes (OBC) in particular are worst affected, with them falling below the ST communities in village hierarchies. The generalisation of OTFDs, which includes OBC and general category communities, along with SCs, has compounded this problem. Prima facie evidence shows that SC and marginalised households are more likely to be landless and more resource-dependent, with less representation or voice in village institutions, including FRCs and CFRMCs, as compared to other non-tribals.

Lack of agency for OTFDs

The issues of non-tribals, especially SCs and OBCs, have been represented by political parties in several forums, and the demand for their inclusion in public resource distribution has captured the attention of political parties. However, when it comes to recognition and vesting of forest rights to OTFDs, unlike STs, there has been no collective mobilisation. For grassroots activists, NGOs, funders, government programmes and schemes and the political machinery, the target for intervention has always been STs. OTFDs have been unable to realise the provisions of FRA and assert their rights by challenging their wrongful rejections and exclusion from the process. This also manifests in their lack of participation in FRC/CFRMC meetings and activities.

Lack of transparency

There is a complete lack of transparency in the entire FRA process, right from panchayat data on claims filed to records on the status of claims, area in claims vs area in title, reasons for rejection, pending claims, etc. Rejected applicants are not notified or given a reason so that they can appeal further. There is no way for claimants to know whether their applications are pending or actually rejected, thus stalling the appeal process. Claims which are actually rejected by officials are seen to be recorded as ‘rejected by gram sabha’. The lack of reliable status data which is disaggregated also helps hide the disparities in ST/OTFD rejection rates.

Ineffective documentation

There is a lack of reliable baseline or periodic progress data for analysing the actual impact of implementation. Facilitators, where present, are not rigorous enough with documentation and as a result, the extent to which OTFDs are being excluded from the process is masked. OTFD hamlets are often left out of intervention entirely and interactions/meetings are limited to a few ST leaders.

What can be done

Three immediate actions can ensure the inclusion of OTFDs in the FRA process and improve the status of their rights recognition. The first is the reorientation of the institutional machinery on the eligibility and inclusion of OTFDs; the second is that the nodal agency MoTA needs to issue clear instructions to ensure that no discrimination takes place; and the third is that given the significant role that facilitating NGOs play in the implementation process, they need to ensure that their staff is aware of the disadvantageous position OTFDs are in, and support them. By being clear on the legal provisions and documents required for evidence in the case of OTFDs, these ground-level workers can play a major part in resolving exclusion due to procedural hurdles and village dynamics.

Asavari Raj Sharma is a PhD research scholar at the Tata Institute of Social Sciences, Mumbai and is interested in questions of forest governance and equity in conservation.

With inputs from Asha Verma, Bikash Sahoo, Geetanjoy Sahu, Goutham R., Kritika Agarwal, Parminder Singh and Uttam Kumar Sahoo.