6 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006

Dr. Shruti Goyal

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Learning Outcomes

 

After studying this module, you will be able to know about-

  • The objective of the Act
  • Forest rights
  • Persons who can claim forest rights
  • Mechanism developed under the Act to vest these rights.

 

Historical Background

 

Many tribal people and other forest communities have depended on forest for generations. Forests are the source of their livelihood, identity, custom and traditions. However, the issue of community access and rights over natural resources has always been contentious. Before independence, forests were viewed as crown lands and extensive tracts of forests were declared as reserved forests. This process led to extinguishment of the traditional rights of the forest dwelling communities (tribal and non-tribal). After independence, the second phase of extension of government control over forest area included the setting up of a network of Protected Areas which further eroded rights of these forest dwelling communities. In fact, the modern conservation approaches also advocated their exclusion rather than integration. In the absence of clearly defined property rights, millions of forest dependent families living in or around forest land have been perceived as encroachers or illegal occupants. The simplicity of tribal people and their ignorance of modern regulatory framework precluded them from asserting their genuine claims to resources in areas where they belonged to and dependent upon. Insecurity of tenure and fear from eviction from the land where these people have thrived for generations was perhaps the biggest reason why tribal community in India felt emotionally as well as physically alienated from forest and forest land. In order to undo this historical injustice the Government of India enacted the Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006.

 

Introduction

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (herein after referred as Act) was enacted by the parliament in the winter session in 2006 and came into effect from 31st December 2007. The Act is supplemented by Rules known as Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules which were framed in 2008 and further amended in 2012. In addition to it, guidelines are issued by the Central Government. The Act is commonly known as Forest Rights Act. The Act extends to the whole of India except Jammu and Kashmir.

 

Objective of the Act

 

The Act serves following purposes:

  • It recognizes the forest rights of the forest dwelling scheduled tribes and other traditional forest dwellers.
  • It vests the forest rights and occupation in forest land to the forest dwelling scheduled tribes and other traditional forest dwellers.
  • It provides a framework for recording the forest right vested in scheduled tribes and other traditional forest dwellers who have been residing in forests for generations but whose rights could not be recorded.
  • It tells about the nature of evidence required for recognition and vesting of forest rights.

Overview of the Act

The Act is divided into 6 chapters and contains 14 sections (herein after referred as sec.) in total. Chapter 1 (Sec.1- Sec. 2) is Preliminary chapter. It talks about the title of the Act, territorial applicability and the date from which the Act shall commence and also enlists some of the important definitions. Chapter 2 (Sec. 3) is titled as Forest Rights. It enlists different types of rights known as forest rights. Chapter 3 (Sec. 4-Sec. 5) is titled as Recognition, Restoration and Vesting of forest rights and Related Matters and talks about the recognition of and vesting of forest rights in forest dwelling scheduled tribes and others traditional forest dwellers. Chapter 4 (Sec. 6) is titled as Authorities and Procedure for Vesting of Forest Rights and talks about different authorities that are empowered under the Act to initiate the process for determining the nature and extent of forest rights that may be given to the scheduled tribes and other traditional forest dwellers. Chapter 5 (Sec. 7- Sec. 8) is titled as Offences by members or officers of authorities and committees under this Act and talks about the offences which may be committed by any authority or committee or member of such authority of committee concerned with recognition of forest rights and procedure for taking cognizance by the court. Chapter 6 (Sec. 9 – Sec. 14) contains miscellaneous provision. 

 

Salient features of the Act

 

The Act is one of the most important and popular Entitlement based laws ever enacted in India favoring the tribal and other traditional forest dwellers’ rights over forest land. The salient features are:

  • The Indian Government for the first time admitted that the rights of forest dwellers were not adequately recognized and a lot of historical injustice has been done to them whereas they are integral to the very survival and sustainability of the forest ecosystem.
  • The Act recognizes the forest rights of forest dwelling scheduled tribes and other traditional forest dwellers. [Sec. 4 (1)]
  • In addition to it, the Act also ensures forest rights to those who were displaced from their dwelling and cultivation without land compensation, due to state development interventions and where the land has not been used for the purpose for which it was acquired within five years of the said acquisition. [Sec. 4 (8)]
  • The Act enlists different types of rights for forest dwelling communities known as forest rights. [Sec. 3]
  • The aim of the Act is to:
    •  Ensure livelihood and food security of the forest dependent communities.
    • Provide for basic developmental facilities for the forest villages.
    •   Provide legal recognition to the community conservation initiatives thereby strengthening traditional conservation practices that protect some of the critical ecosystems of the country.
    •  Protect traditional  knowledge  and  intellectual  property relating to  biodiversity and cultural diversity.
    •  Protect customary rights of the forest communities.
    •  Empower communities to protect, conserve and manage forest and biodiversity.
    • Conserve the common forest and biodiversity resources accessed by the community which are threatened by destructive activities.
    •  Establish empowered institutions at the community level for conservation and management of natural resources thereby strengthening conservation governance at the grassroots.
  • The Act mandates that no forest dwelling Scheduled Tribes and other traditional forest dwellers shall be evicted or removed from the forest land under his occupation till the recognition and verification procedure is complete. [Sec. 4(5)]
  • The Act secures individual rights as well as the community right of the scheduled tribes dwelling in forest and other traditional forest dwellers. These rights shall be conferred free from all encumbrances and procedural requirements. [Sec. 4(7)]
  • The Act also puts an obligation on the forest dwelling scheduled tribes and other traditional dwellers. [Sec. 5]
  • The Act provides for a three tier structure of authorities to vest forest rights, namely, gram sabha, sub-divisional level committee and district level committee. [Sec.6]
  • The Act also provides for the establishment of a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights and to submit returns and reports to the nodal agency. [Sec. 6(7)]
  • The Ministry of Central Government dealing with Tribal Affairs shall be the nodal agency for the implementation of the provisions of this Act. [Sec. 11]
  • The Act imposes criminal liability on the officers and members of the committee who contravenes the provisions of this Act or the Rules.[Sec.8]
  • The Central Government has been authorized to frame rules and issue general or special directions for carrying out the provisions of the Act. [Sec. 14]
  • The provisions of this Act shall be in addition to and not interrogation of the provisions of any other law for the time being in force. [Sec. 13]

 

Persons who can claim Rights under the Act [Sec. 4(1)]

The forest rights can be claimed by forest dwelling scheduled tribes and other traditional forest dwellers who have occupied the forest land before 13th December 2005 notwithstanding anything contained in any other law for the time being in force. ‘Forest dwelling Scheduled Tribes’ means the members of community of the scheduled tribe who primarily reside in and depend on forest or forest land for bona fide livelihood needs and includes the scheduled tribe pastoralist communities. ‘Other traditional forest dwellers’ means any member or community who has for at least three generations prior to 13th December 2005 primarily resided in and who depend on the forest or forest land for bona fide livelihood needs. Generation means a period comprising of twenty five years. The rights under the Act are conferred not only on those who live in forest but also on those who live on forest land. The word ‘forest land’ is much wider and means land of any description falling within any forest area and includes unclassified forests, un-demarcated forests, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National Parks.

 

Modification or resettlement of forest rights in Critical Wildlife Habitats [Sec. 4 (2)]

Although forest rights can be claimed by forest dwelling communities in Sanctuaries and National Parks but these rights can be modified and resettled in critical wildlife habitats of National Parks and Sanctuaries. ‘Critical wildlife habitat’ means such areas of National Parks and Sanctuaries where it has been specifically and clearly established on the basis of scientific and objective criteria that such areas are required to be kept as inviolate for the purposes of wildlife conservation.

However, these rights can be affected subject to the fulfillment of all conditions such as (i) the process of recognition and vesting of rights is complete in all areas under consideration; (ii) it has been established that the activities or the impact of the presence of right holders will cause irreversible damage and threaten the existence of wildlife species and their habitat and (iii) no other reasonable option exist. In addition to it, the forest rights can be modified or resettled only after resettlement or alternative package has been prepared and communicated to the affected individuals and communities. The package should provide a secured livelihood and also fulfill other requirements under relevant laws and policies of the central government. Free informed consent of the concerned Gram Sabha to the proposed resettlement and to the package has to be obtained in writing. No resettlement shall take place until facilities and land allocation at the resettlement location is complete. The critical wildlife habitat from which forest right holders have been relocated shall not be subsequently diverted for any other purpose.

 

Typology of Forest Rights [Sec. 3]

The forest rights vested in forest dwellers are of two types: (i) rights on all forest land which secure individual or community tenure or both and (ii) developmental rights (facilities). The rights on all forest land which secure individual or community tenure or both are:

  • Right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood. This right shall be restricted to area under actual occupation and shall in no case exceed an area of four hectares.
  • Right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries. Minor forest produce includes all non-timber forest produce of plant origin including bamboo, brush wood,  stumps, cane, tussar, here but excluding cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers and the like.
  • Rights in or over disputed lands under any nomenclature in any State where claims are disputed.
  • Rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles.
  • Community rights such as nistar or by whatever name called. ‘Nistar’ means the concession granted from removal from forest coupes on payment at stipulated rates, specified forest produce for bonafide use, but not for barter or sale. Generally, the forest produce distributed at nistar rates is timber poles, firewood etc.
  • Other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities.
  • Rights including community tenures of habitat and habitation for primitive tribal groups and pre agricultural communities.
  • Rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests into revenue villages whether recorded, notified or not. Forest villages’ means the settlements which have been established inside the forests by the forest department of any State Government for forestry operations or which were converted into forest villages through the forest reservation process.
  • Right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.
  • Rights which are recognized and accepted as rights of tribal’s under any State law, Autonomous Regional or District Council or traditional or customary law .
  • Right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity.
  • Any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers as the case may be which are not mentioned the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal;
  • Right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes and other trditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement of rehabilitation prior to 13th December 2005.

These rights are known as forest rights. They are inheritable but not alienable or transferable. The rights shall be registered jointly in the name of both the spouses in case of married persons and in the name of the single head in the case of a household headed by a single person. In the absence of a direct heir, the heritable right shall pass on to the next-of- kin.

 

Developmental rights means the rights of forest dwelling communities over developmental facilities such as Health and educational facilities, fair price shops, electric and telecommunication lines, tanks and other minor water bodies, drinking water supply and water pipelines, water or rain water harvesting structures, minor irrigation canals, non-conventional source of energy, skill up gradation or vocational training centers, and roads. In this case the pre-condition is that the development projects are to be provided by the Central Government only after the Gram Sabha recommends for the same.

 

Duties of forest right holders [Sec.5]

The Act puts an obligation on forest right holders to:

  • protect the wildlife, forest and bio-diversity;
  • ensure that adjoining catchment area, water sources and other ecological sensitive areas are adequately protected;
  • ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers is preserved from any form of destructive practices affecting their cultural and natural heritage; and
  • ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the bio-diversity are complied with.

In addition to forest right holders, the Gram Sabha and the village level institutions in areas where there are holders of forest rights are also empowered to perform such duties.

Authorities under the Act [Sec.6]

The Act provides for a three tier structure of authorities to vest forest rights, namely Gram Sabha, Sub-Divisional Level Committee and District Level Divisional Committee. Gram Sabha means a village assembly which shall consist of all adult members of a village and in case of States having no Panchayats, Padas, Tolas and other traditional village institutions and elected village committees, with full and unrestricted participation of women. The Sub-Divisional Level Committee, the District Level Committee and the State Level Monitoring Committee shall consist of officers of the department of Revenue, Forest and Tribal Affairs of the State Government and three members of the Panchayati Raj Institutions of whom two shall be the Scheduled Tribe members and at least one shall be a woman.

The Gram Sabha is the initiating authority for determining the nature and extent of individual or community forest rights or both. It shall receive and hear the claims. It shall then consolidate the claims, verify them and prepare a map delineating the area of each recommended claim in the prescribed manner. The Gram Sabha shall then pass a resolution on claims on forest rights after giving reasonable opportunity to interested persons and authorities concerned and forward the same to the Sub-Divisional Level Committee. The Gram Sabha shall maintain a list of claimants of forests rights in the prescribed manner.

The Sub Divisional Level Committee shall examine the resolutions and the maps of the Gram Sabhas to ascertain the veracity of the claim and forward it to the District Level Committee for the final decision.

Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the Sub-Divisional Level Committee and any person aggrieved by the decision of the Sub-Divisional Level Committee may prefer a petition to the District Level Committee. The decision of the District Level Committee on the record of forest rights is final and binding.

In addition to these, the State Government shall also constitute a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights.

 

Offences under the Act [Sec. 7& 8]

The Act imposes criminal liability on the officers and members of the committee who contravenes the provisions of this Act or the Rules. Such person shall be liable to pay fine which may extend to one thousand rupees. However, the person shall not be liable if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

No court shall take cognizance of any offence unless any forest dwelling Scheduled Tribe in case of a dispute relating to a resolution of a Gram Sabha or the Gram Sabha through a resolution against any higher authority gives a notice of not less than sixty days to the State Level Monitoring Committee and the State Level Monitoring Committee has not proceeded against such authority.

 

Conclusion

The tribal communities as well as non-tribal communities have depended on forests for generations. However, their rights were not protected and these communities felt alienated. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 is a laudable step by the government in order to do away with the historical injustice done to these communities by recognizing their rights and vesting these rights in them.

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References

  • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006
  • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Of Forest Rights) Rules, 2007
  • Guidelines issued by Ministry of Tribal Affairs, Government of India, on the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
  • Annual Report, (2016-17), Ministry of Tribal Affairs, Government of India.
  • Recognition of Community Rights in Madhya Pradesh and Chhattisgarh: Challenges and Way Forward, United Nations Development Programme, India, 2012
  • Forest Rights Act Training Manual for Government Functionaries and Members of Gram Sabha, National Resource Centre at Sch. Castes & Sch. Tribes Research and Training Institute, Odisha,

 

Suggested Readings

 

  • Dash, Tushar., (2010), The Forest Rights Act: Redefining Biodiversity Conservation in India, Policy Matters, available at http://fra.org.in/document/pg%2033-40%20-%20tushar.pdf
  • Ramdas, S., (2009), “Women, Forest spaces and the Law: Transgressing the Boundaries”, Economic and Political Weekly, Vol. XLIV No. 44, pp. 65-73.
  • M Gopinath Reddy, K Anil Kumar, P Trinadha Rao and Oliver Springate-Baginski, (2011), “Issues Related to Implementation of the Forest Rights Act in Andhra Pradesh”, Economic and 
  • Political Weekly, Vol. XLVI No. 18, available at http://www.epw.in/kn/journal/2011/18/special-articles/issues-related-implementation-forest-rights-act-andhra-pradesh.html.
  • Kumar, K., Choudhary P. (2005), A Socio-Economic and Legal Study of Scheduled Tribes’Land in Orissa, World Bank, Washington.Poffenberger, Mark and Betsy McGean. (eds.) (1995), Village Voices, Forest Choices, Delhi: Oxford University Press.
  • How did the Indian Forest Rights Act 2006, emerge?’ Discussion Paper series, Thirty Nine,
  • May 2010, IPPG available at www. ippg.org.uk/papers/dp
  • India: Unlocking Opportunities for Forest Dependent People, 2006, Document of World Bank, available at http://siteresources.worldbank.org/INDIAEXTN/Resources/Reports-Publications/366387 1143196617295/Forestry_Report_volume_I.pdf.
  • Khare, A., Sarin, M., Saxena, N.C., Palit, S., Bathla, S., Vania, F. and Satyanarayana, M. (2000), Joint forest management: policy, practice and prospects. Policy that works for forests and people, Series no. 3., World Wide Fund for Nature-India, New Delhi and International Institute for Environment and Development, London.
  • Agrawal, A., “Community-in-conservation: tracing the outlines of an enchanting concept”. In R. Jeffery & N. Sundar, eds.(1999), A new moral economy for India’s forests? New Delhi, Sage Publication.