Who are the people whose claims over forestlands have been rejected by state governments in India?

On February 13, the Supreme Court ordered the eviction of more than 10 lakh families of Adivasis and other forest-dwellers from forestlands across 16 states. The order came while the court was hearing petitions challenging the constitutional validity of the Forest Rights Act, 2006. The petitioners had demanded that state governments evict those forest dwellers whose claims over traditional forestlands under the landmark law had been rejected.

This is the latest chapter in the fraught history between the Indian state, people and forests. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was intended to correct the “historical injustice” done to traditional forest dwellers. Since colonial times, as governments asserted their control over India’s forests, the country’s forest history has become a cycle of evictions from forestlands and rebellions by forest dwellers.

The Act was an attempt to break this cycle. To protect forest-dwelling communities from evictions, to secure their livelihoods, and to give them a say in forest governance, it brought in a rights-based regime.

Individuals and communities could now apply for rights to a forest – the right to fish in a pond, to cultivate their existing plot in the forest, to collectively manage a forest. These rights came with riders. They did not confer ownership, only the right to use. Eligibility norms were defined as well. Scheduled Tribes in actual occupation of forestland by December 13, 2005, were eligible. As for non-tribal communities living in forests, they had to establish a continuous 75-year occupation for eligibility.

The Act, however, ran into entrenched opposition from the country’s forest bureaucracy and some wildlife conservationists. Fearing the Act would result in a land-grab, multiple petitions were filed challenging the Act. In the current case, which engendered the Supreme Court ruling, petitions were filed by Wildlife First, a non-governmental organisation, and retired forest officials who blamed the Act for deforestation and encroachment of forest lands.

In the days since the ruling, tribal activists have denounced the order while some conservationists and bureaucrats in the forest service have welcomed it. A key part of their defence? According to the judgement, a total of 18.8 lakh titles have been granted under the Forest Rights Act, while 19 lakh claims have been rejected. In a statement released on Thursday, Wildlife First said all 19 lakh rejected claims were bogus. It said: “The Supreme Court is focusing only on recovery of forest land from bogus claimants whose claims stand rejected.”

Trying to understand which of these perspectives is correct, Scroll.in tried to understand how claims under the Forest Rights Act are filed, approved or rejected. We found several reasons why the number of claims filed are low and also why they get rejected. Also, all rejected claims need not be fraudulent.

Reason #1: The Act itself

Eleven years after it became law, the Forest Rights Act is struggling. Contrary to what the Wildlife First petition says, the number of claims submitted is a fraction of what should have come in. The first reason for that is the Act itself.

Forest-based communities see their relationship with forests as one of stewardship, of belonging to the realm of mother earth, as cultural anthropologist Savyasaachi, who teaches at Jamia Millia Islamia, has written. The Act’s rights-based language, however, was unfamiliar territory for these communities.

Leaving aside questions about the suitability of the rights-based approach, the tribal communities at the very least needed to be educated about the Act – and how it could be used to secure their lives. That did not happen.

Reason #2: Lack of awareness building

In 2005, a draft of the Forest Rights Act was submitted to a Joint Parliamentary Committee for review. An outcome of negotiations mediated by the Prime Minister’s Office between the Ministry of Tribal Affairs and the Environment Ministry, it was a conservative document. Non-tribal communities had been taken out of its purview, as had tribal communities residing in forests since 1980.

The Bill was rewritten by the Parliamentary Committee. Among other changes, it expanded the Bill’s purview to bring back non-tribal forest dwellers and changed the cut-off date to 2005. As the Bill became much more expansionist than the government wanted it to be, even the tribal ministry began having second thoughts about it. In 2009, while studying the drafting process that resulted in the Forest Rights Act, this reporter was told by a bureaucrat who worked on the Bill that if the ministry had been left to its own devices, the rules would never have been written.

At the state level too, there were similar reservations. States like Tamil Nadu saw the Forest Rights Act as a threat to its forest cover, said Ajit Menon, an academic at the Madras Institute of Development Studies who has studied the Act’s implementation in the forest villages of Gudalur, Tamil Nadu. “Anything slowing its rollout is seen as a good thing,” he said. Mineral-rich states opposed the Act as well. Granting forest rights hindered the process of forest diversion for mining.

For such reasons, states dragged their feet on awareness-building. As late as 2013, when Tushar Dash, a Bhubaneswar-based activist who works on forest rights studied the Act’s implementation in Odisha, he found very low awareness levels. One reason was the lack of expenditure. As per the Act, Forest Rights Committees had to be set up at gram sabha levels to help villagers prepare and file their claims. But Odisha, found Dash, spent as little as Rs 30 to Rs 100 on educating Forest Right Committees about the Act. “This included the costs of training materials and the programme,” he said.

In state after state, non-governmental organisations and people movements stepped into the vacuum, but they were an imperfect replacement as well. Claims came in only from regions where they were active. Further, these organisations too catered to their constituencies. In places like Gudalur, said Menon, organisations like Adivasi Munetra Sangham began setting up forest committees but focused on Scheduled Tribes. Non-tribal households failed to file their claims.

Reason #3: The claims process

Those who filed claims ran into a different set of problems.

The states’ attempts to hobble the Act extended beyond low awareness-building. Rajasthan said it would accept claims only from people living in forests before 1980 – even though the Act had stipulated 2005. “There has been mischief since the beginning,” said Mangilal Gujjar, an activist with Jal Jungle Jamin Andolan in South Rajasthan.

That was not all. Forest Rights Committee had to be set up at the gram sabha level, but the state notified these at the level of revenue villages. With anywhere between seven and 12 hamlets falling under a revenue village, the people of the village dominated the committees.

“Even people who did not occupy forestland came into these committees thinking they will gain by being on a government committee,” said Gujjar. Sarpanches and other dominant members of the villages found their way into these committees. Two things happened next. First, when they realised there was little private gain, and that they had to instead vest land in the dispossessed, they lost all interest. Second, their communities benefited more than others.

Other states created their own hurdles. In 2010, Gujarat told applicants, some of the poorest people in India, to submit satellite images of the land they were staking claim to. In Tamil Nadu, responding to a petition challenging the Forest Rights Act, the Madras High Court in 2008 said the process of accepting claims should continue but no rights should be recognised till its judgement. It was 2016 before the Supreme Court vacated the court’s stay. In the meantime, rights recognition slowed down, said Menon.

Elsewhere, the claims process struggled due to its architecture. Under the Forest Rights Act, claims approved by the Forest Rights Committee go to the subdivisional-level committee and then the district-level committee. Both have three government officials and three local elected representatives as its members.

The subdivisional-level committee has the sub-divisional officer or equivalent, forest officer in-charge or equivalent, and three members from block or tehsil level panchayats, among them a woman nominated by the district panchayat.

The district-level committee has the district collector, the local divisional forest officer, a representative from the tribal department and three members of the district panchayat nominated by the state government.

In practice, most of these have been dominated by bureaucrats. “The Forest Department [in Rajasthan] thinks of itself as the owner of the forest and the committees went with what the Forest Department said,” said Gujjar. “The panchayat representatives barely spoke. They just sat in the government’s lap.”

Reason #4: The appeals process

The outcomes were predictable. Between administrative and local community biases, there was a high rejection of filed claims. In 2012, under senior Congress leader Kishore Chandra Deo, the Ministry of Tribal Affairs came out with fresh rules on how rejected claims should be handled.

These said both gram sabha and the applicant should be informed, and only after their appeal is heard should a claim be disposed. This was not implemented, said Dash. Two years later, the ministry issued a fresh circular saying state governments should suo moto examine rejected claims if the gram sabha has not intervened. Here, states had to compile all cases where claims got rejected, inform claimants and gram sabhas, help them file appeals at the subdivisional-level committee or the district-level committee, and give claimants a chance for a hearing.

This failed as well, said Dash. Both committees were meant to meet at least once every two months. This never happened partly because India’s lower bureaucracy is over-worked. Even when they met, the local elected representatives were overruled by bureaucrats.

There was also the state-level monitoring committee – chaired by the chief secretary and staffed by secretaries of the concerned departments. These had to oversee the implementation of the Forest Rights Act. These, again, have barely met. The one in Jharkhand, said Dash, has not met in the last 10 years. The one in Chhattisgarh met twice. And the one in Odisha met nine times in 10 years.

As a result, as this reporter found in 2014, the number of claims remained a small fraction of the country’s total forest dwelling communities’ population. This failure was hidden by state governments that reported progress not by contrasting the number of claims filed with the number of forest dwellers in their state, but by contrasting settled claims against the number of filed claims.

Reason #5: The National Democratic Alliance

Despite it all, the Act made some headway till 2014. After Deo became tribal minister in 2011, the ministry pressed states for monthly progress reports, it issued guidelines and battled with the environment ministry and the Prime Minister’s Office to defend the Act – especially against infrastructure and industrial projects.

But, after the Bharatiya Janata Party-led National Democratic Alliance government came to power in 2014, a string of dilutions followed. Settling of rights under the Act was removed as a pre-condition for Stage 1 forest clearance. In 2015, the government proposed private companies be brought in manage afforestation. In 2018, its Draft Forest Policy mooted the privatisation of forests.

Each of these undermined the Forest Rights Act. “The Act was meant to democratise forest governance,” said Dash. “But these measures strengthen forest bureaucracy at the cost of people.” After 2014, as winds began to blow against the Act, its implementation has seen hardly any progress, he said.

Another reason for this atrophy is the lack of dedicated institutions. The Forest Rights Act came into being at the same time as the Right to Information Act. One reason the Right to Information Act continues, despite government opposition, is its institutions – such as the information commissions in the states and at the Centre that work to ensure compliance with the law.

The Forest Rights Act does not have such institutions. Its implementation is in the hands of tribal departments at the Centre and in the states.

The cumulative impact

By deciding all rejected claims are fraudulent, the Supreme Court missed these larger frames of exclusion that determine who gets to claim, and how the submitted claims fare.

It is not clear what happens next. In some states, like Assam, the Forest Department is preparing for evictions. Deeper in the hinterland, news about the Supreme Court order is percolating through. Keonjhar and Mayurbhanj in Odisha, said Dash, have seen rallies in protest.

“Whether you give us rights or not, people will stay in forests,” said Mangilal Gujjar. “All the law gives us is a right to use. Wildlife protection Acts still apply. Penalties if the forest is damaged exist. What is the problem then?”

The larger story playing out here is not one about bogus claimants but one about how an important protection for India’s forest dwelling communities is being destroyed. In a sense, a familiar script is playing out again. The Forest Rights Act is meeting the same poorly-implemented fate as the Panchayat (Extension to Scheduled Areas) Act, 1996, which sought to vest greater authority over local resources with communities in India’s scheduled areas.

It was not meant to be this way. When the Forest Rights Act was being drafted, the tribal ministry had proposed a staggered implementation. Arguing that most forest dwelling communities live in 67 districts, it suggested that the Act be first implemented in these areas.

It also suggested that collectors be called to the Centre for a quick training session on the Act. It wanted them to, upon returning to their districts, call special gram sabhas on pre-announced dates to invite and examine claims, and then to forward these claims higher up where the aggregate area claimed could be corroborated with satellite images and Forest Survey of India data, followed by the vesting of titles.

Through such a process, the ministry had said, rights could be vested within six months. The proposal went nowhere. And the Forest Rights Act’s subsequent implementation has been spotty.

India needs to recalibrate. Chhattisgarh is expected to move an application in the Supreme Court seeking a modification of its order. “Our application will say FRA [Forest Rights Act] claims evaluation has been very weak in Chhattisgarh,” said a Congress volunteer in the state on the condition of anonymity. “We have created a 200-day roadmap for evaluating and settling all forest claims.”

This application, he said, will hopefully result in other states filing similar applications as well.

The Supreme Court has a rare second chance to set things right.