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The Folly of Ignoring Indigenous Rights over Forest and Resources

Kriti Sharma

 

Over the past few years, the Prime Minister’s Office has made appeals to the Scheduled Tribes (‘STs’) community,[1] in the context of celebrations of the tribal leader Birsa Munda’s birth anniversary on 15 November, celebrated as the Janjatiya Gaurav Divas. The Prime Minister’s direct address on the anniversary at a rally in Khunti, Jharkhand, last year and in Bhopal, Madhya Pradesh in 2021 or through video messages, provides an insight into the central government’s vision for the STs. In these speeches, whilst celebrating their history and culture,[2] the ST communities are continuously depicted and identified by the Prime Minister as poor and backward. The Particularly Vulnerable Tribal Groups (‘PVTGs’) are problematically categorised as those ‘more backward amongst backward people,’ ‘primitive group’ who ‘have never even heard of the sound of rail’ and desperately need ‘development’ for which the Prime Minister Janman program has been formulated. [3] 

 

Entirely missing from the narrative, as evident in the speeches, is an acknowledgement of the constitutional rights of the STs delineated under Schedules V and VI under the Constitution, including respect for communities’ sovereignty and their autonomy over the lands with which their lives are deeply intertwined that are continuously being encroached upon due to unabating developmental projects. This narrative also ignores their constitutional rights to governance through self-determination and for the community’s endogenous development based on multiple parameters valued by the community itself, beyond just economic development.[4] Since India does not officially recognise the STs as indigenous communities, there are no official deliberations on a host of indigenous rights over land, forests and resources that are recognised under the ILO 163 Convention and United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).  Thus, the ground issues of the Indigenous communities related to land and forests are not being presently addressed.

 

In India, the places inhabited by various ST communities witness a significant geographical overlap of forest, wildlife and resource-rich areas — as mapped here. With around 1.73 lakh villages located in and around forests, as per estimates 250-300 million people rely on it. Three million Indigenous and other forest-dwelling communities specifically reside in 690 protected areas (national parks and sanctuaries) established under the Wildlife Protection Act, 1972.[5] The symbiotic relationship between these communities and nature was recognised for the first time in 1988 in the Indian Forest Policy, which led to participatory forest management programmes. Here, the state’s forest department and the local communities enter into a joint forest management where the villagers, equipped with better local knowledge, assist in safeguarding the forest resources, and in return, receive access to forest products that can be used sustainably.  Subsequently, through the Panchayat Extension to Scheduled Areas Act, 1996 (‘PESA’), the formal rights of the Gram Sabhas in decision over planning and management of local resources, including non-timber forest produce, were incorporated. However, villages inside the forests remained unrecognised. In 2006, as a significant step to undo the historical injustice that had been meted out to the STs and other forest dwelling communities who earlier had no rights over their forest habitats, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (‘FRA’) was introduced. It recognised community and individual land rights (non-transferable and inalienable) of the communities dwelling in the forests and rights over the management of commons.[6] Per the rules framed under the aegis of the FRA, state governments had to settle rights before carrying out any project on the forests inhabited and take free, prior and informed consent (‘FPIC’) from the community members.[7] Thus, first through the PESA and then the FRA, a paradigm shift was brought with the recognition of community claims over the forest and the incorporation of polycentric governance.

 

In the next section, however, I delineate how the recent legal amendments and policies have sought to weaken rather than protect these community rights over their forests and land. In Part III, I further argue that this is further supplemented by the weakening of the position and powers of the Ministry of Environment, Forest and Climate Change (‘MoEFCC’) and Ministry of Tribal Affairs (‘MoTA’) which had the fiduciary duty to protect these rights. I conclude with an appeal to address and restore these rights that ensure an equitable and sustainable future.


Recent Bills, Acts and Policies affecting FRA rights

 

Due to the significance of the forest and forest resources for the ST communities, the PM hailed the 2017 amendment to Section 2(7) of the Indian Forest Act, 1927 whereby bamboo, a minor forest produce was removed from the list of trees and the felling was categorised as non-timber. This is a positive step as removing bamboo from the forest for use will no longer require a permit. However, it should be noted that in 2019, the government had also proposed draconian amendments under the same Indian Forest Act, 1927 to increase the power and discretion vested in the forest officers which could have increased the potential for harassment of forest-dependent communities. It sought to shift the burden of proof to the person found with forest produce and introduce summary arrest and proceedings. After raising a controversy, the bill was ultimately withdrawn.

 

Controversially the Forest (Conservation) Amendment Act, 2023 (‘FCA’) which renamed the act as Van (Sanrakshan Evam Samvardhan) Adhiniyam was passed last year. The Act tries to limit the definition of forest, undoing the expansive definition propounded by the Supreme Court in T.N. Godavarman v. Union of India (W.P. No. 202/1995). It further exempts 100 kilometres along the international border, 10 hectares for security purposes and five hectares in ‘left-wing extremism’ (a term not legally defined) from forest clearances that include FRA compliance. Such a wide import will significantly impact the STs situated near the border in the north and the north-east, as well as, those situated in the heartland. Through the amendment, certain activities like eco-tourism, zoos and safaris or ‘other activities ordered by central government’ would also be categorised as non-forest use. The amendment act is under challenge in the Supreme Court through public interest litigation (Ashok Kumar Sharma v. Union of India). In the interim order, SC has held that the previous expansive definition of forest will continue and the safari and zoos will not be deemed non-forest use till the finality of the decision.

 

Two amendments to the Mines and Minerals (Development and Regulation) Act, 1957 (‘MMDR’) should be noted. First, the 2021 amendment wherein lessees are permitted to sell off 50% of captive mines allotted by the government upon payment without requiring forest clearances.  Secondly, the 2023 amendment to MMDR centralised strategic minerals and de-listed certain atomic minerals to encourage commercial exploitation. After the amendment, forest clearances are not required for mine reconnaissance (wherein sub-surface excavation is being permitted) and prospecting operations. The amendments to both the FCA and MMDR have circumvented the provisions for environmental and forest clearances which includes the requirement for informing and obtaining consent from the affected communities under FRA before they are dispossessed from their land due to mining or conservation projects.

 

In terms of policies, only one policy announced by the PM Viksit Bharat Sankalp Yatra (‘VBSY’) launched in 68 gram panchayats (with plans for further expansion) specifically relates to the ST forest rights, as one of its objectives is to ensure the settlement of claims under the FRA. The state governments have, however, been reluctant to recognise community rights and most claims are filed on a suo moto basis while the state governments are not proactive. In a letter to the state governments in 2018, the MoTA highlighted that states are rejecting claims on frivolous grounds and practising immediate eviction without proper review of the claims. On the other hand, certain state governments are expediently settling individual titles only when a land or resource use project is announced, to quickly transfer the land for the project by recognising titles and providing monetary compensation. Further, though the FRA rights are not automatically diminished in wildlife zones, the National Tiger Conservation Authority (‘NTCA’) had ordered in 2017 for FRA claims not to be processed in critical tiger habitats (‘CTH’) though it was withdrawn subsequently. Under Section 2 (b) of the FRA, declared critical wildlife habitats (‘CWH’) can be kept as inviolate with no human settlement and usage but only one state Maharashtra has declared 54 of 55 protected areas as CWH with great discrepancies and in violation of FRA rights of the communities. As the legal situation stands today, as per government orders, an area can legally be declared CWH or CTH and made inviolate but after the settlement of FRA claims, the NTCA was wrong in preventing the admission of claims of the communities. As evident, under the VBSY policy, it needs to be ensured that there is procedural propriety in settling the claims and that the state does not make it a frivolous process that delegitimises community claims.

 

Apart from the VBSY policy, other policies and programs on land and livelihood hailed by the PM to benefit the ST communities are not specific to the vulnerabilities of the ST communities but are general policies for the poor and farmers. Further, apart from the generic Lakhpati Didi Yojana for rural women that provides skill training programs for self-help groups, the specific vulnerabilities of the ST women, including those related to forest and land, that I have detailed elsewhere remain unaddressed.

 

Diminishing Role of MoEFCC and MoTA in the protection of FRA

 

The MoEFCC plays a critical role in ensuring compliance with laws and executive policies relating to forest use and environmental impact. A MoEFCC circular was issued in August 2009 that mandated that all forest diversion proposals should include a letter from the state government certifying that the identification and settlement of rights under FRA had been completed for the proposed forest area. The state governments are required to include a record of all consultations and meetings and certify that- a) the full information on the proposal has been placed to the village assemblies in local languages; b) discussion had taken place with a quorum of a minimum 50% of the members of the village assemblies; c) a letter had been obtained from the village assemblies that they have understood the purpose and details of the proposed diversion and given their consent; d) and the written consent or rejection of the project from the assemblies has been obtained in writing. Compliance with the circular is mandatory for obtaining forest clearance from MoEFCC. 

 

However, CR Bijoy traces attempts thereafter by MoEFCC to dilute the impact of its own circular by providing for exemptions. In February 2013, states were informed by the MoEFCC that consent was not required for projects like the construction of roads and canals, the laying of pipelines/optical fibres and transmission lines etc., where linear diversion of use of forest land was involved. In October 2014, district collectors were given power to exempt FRA compliance where the notified forest area was less than 75 years old[8] or where there was no recorded ST population. Then, in 2015, FRA compliance was exempted for underground mining. As noted earlier, under the FCA, 2023 amendment vast exemptions have been provided that will severely impact the ST areas. Another major change in the MoEFCC’s stance came in 2018 when it adopted the position that FRA compliance will not be required for ‘in-principle’ approvals or Stage I clearance. However, the 2022 Forest Conservation Rules which were then superseded by 2023 forest conservation rules, both unequivocally state that compliance with FRA is not required for Stage I clearance. Thus, this stage denotes that in principle, when the MoEFCC accepts the project proposal, a decision is taken unilaterally by the MoEFCC without having obtained consent from the affected communities. As a result, compliance with FRA at Stage II or final approval becomes a formality instead of a prior mandate.

 

The MoTA is the rightful agency to exercise oversight on the implementation of FRA[9] and to ensure that the interests of the ST communities are represented. The earlier practice of MoEFCC to include members of the MoTA in the forest advisory committee for cases where STs are affected is no longer in practice. In the 2023 amendment to the Forest Conservation Rules, no mention is made of the involvement of members of the MoTA or state tribal affairs ministries in the central or regional advisory committees for project proposals. Despite objections by the MoTA on the dilution of FRA, it was left with no teeth to intervene and be consulted. On the other hand, the MoEFCC clearly limited its purview to environmental concerns, leaving out the consequences of the project on the rights of affected communities. It rarely independently verifies the state submissions on compliance of FRA through independent experts, even though litigations have revealed states to have submitted false statements on compliance of FRA.[10] It has also permitted compensatory afforestation outside the affected zone or the state of the proposed project, without deliberation on consequences for the affected communities that are mandated to be relocated nearby but who will not be able to continue their reliance on the forest eco-system.

 

Overall, there is decreased transparency in the operations of the MoEFCC and attempts to expedite the forest and environmental clearances have led to dilutions in required compliances. It continues to use the practice of ex-post facto approvals which have been criticised by the SC. For major projects, under the pressure of the PMO or other ministries, the MoEFCC is willing to circumvent and flout the rules.[11] According to a study, the ministry approved 87% of the 2,592 requests in the last six years for projects in and around the protected areas. While between 2000-06, another study reports, the rejection rate stood between 15.2%, between 2014 to 2020, it dwindled to 0.7%. This is a dangerous trend that promotes a culture of impunity by the state governments. This becomes evident with Uttarakhand now outsourcing policing and royalty collection for funds to be used for forest conservation to private companies for river bed mining and Goa, desirous to remove 36 villages from the 99 eco-sensitive zones in the state, submitting to the Union of India that “forests can be moved from one place to another, natural resources and industries can’t.”


Restoring Community Rights

 

Based on the present international human rights law and an understanding that sustainable management of commons requires the support of local communities, a paradigm shift was sought through laws like PESA and FRA towards polycentric governance over the management of forests, wildlife and natural resources. However, as is evident from the recent state actions, there is dependency on the established state-centric forest regime and reluctance on relinquishment of control by the neo-liberal state. There is a failure to acknowledge that the scientific and technological rules of forest governance that developed under the British were geared towards commercial exploitation to the exclusion of local communities that have pre-dated rights over these forests. With the introduction of the Indian Forest Act, 1865, the rights over the commons were usurped and vested completely in the state. While there is bureaucratic reluctance to restore these rights to the communities, through an empirical study of mining cases from Central India, I argue that the constitutional courts in India too appear to be part of the dominant structure as they largely negate the rights of the ST communities by being deferential to the executives.[12] This need not be the case, as seen in Colombia where the constitutional courts have been at the forefront of granting far-reaching rights to the indigenous communities and, importantly, establishing substantive and procedural rule of law standards to be followed by the executives- see here. Unfortunately, in the present scenario in India, protest movements become the only option to register dissent which is often met with indifference or brutal retaliation by the state. The status quo where a callous and exploitative role is played by the state and the companies in resource management ultimately gives a fillip to armed rebellions. Only if the rule of law is restored and legal avenues are created to ensure representation to communities that are equal stakeholders can we gear towards an egalitarian and sustainable future that the government promises.

 

End-Notes


[1] Listed under Art 366(25) and 342 of the Constitution of India, 1950.


[2] The present government seeks to establish various museums celebrating culture and history of the ST, although many of these museums are designed with outside gaze that problematically depicts the community through the prism of the dominant society.


[3] Though started by the previous governments, present government had allocated 15,000 crores (six times more than previous governments).


[4] See Schedule V and VI of the Constitution of India, 1950.


[5]  Further, 89 of the 106 notified national parks (84%) directly overlap with habitats of indigenous and other marginalised communities.


[6] See Chapter II, III and IV of the FRA, 2006.


[7] FPIC rights are embedded in UNDRIP, 2007. 


[8] To establish a claim under FRA, three generation or 75 years of habitation in the forest needs to be proven through oral tradition.


[9] As CR Bijoy points out, under the Government India (Allocation of Business) Rules, 1961 ‘all matters, including legislation, relating to the rights of forest-dwelling scheduled tribes on forest lands’ were allotted to MoTA through amendment to the rules.


[10] As seen during independent investigations by the MoEFCC in Orissa Mining Corporation v. MoEF (2013) 6 SCR 881.


[11] As can be seen with the Great Nicobar Development Project initiated and helmed by the NITI Aayog (which is supposed to be only a policy wing) where MoEFCC changed the boundaries of reserved area and disregarded the impact on Shompen and the Nicobarese groups.


[12] This is most evident in the SC ruling in Wildlife First v. Ministry of Forest and Environment (2019) to evict the encroaching individuals from forest. Later, it had to suspend the order and seek verification that the states have completed process of recognition under the FRA.

 

Kriti Sharma is presently an Assistant Professor at Jindal Global Law School where she teaches criminal and administrative law, and an elective on the rights of indigenous peoples.





Feature Image: Adivasi Protest in front of a police station in South Chhattisgarh, India (2017). Source: Wikimedia Commons


This post is part of a series on 'Rights to the Forest'. Read the other posts here.

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