Land protection act in india

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act in 2006, 1 commonly known as FRA, was enacted to recognize and secure the rights to forest land and resources of the forest dwelling Scheduled Tribes (ST) 2 / Indigenous People / Adivasis 3 and other traditional forest dwellers in India. 4 FRA aims to recognise historical injustice and undo the damage and inequality caused by colonial-era forest policies and subsequent forest action by empowering communities to access and use forest resources sustainably. The Act also recognizes the stewardship of forest dwelling communities in the survival and sustainability of the forest ecosystem.

While in the post-independence period multiple acts have been passed for forest, biodiversity, and wildlife conservation 5 in India, none addressed the rights of people from the scheduled tribes (STs) 6 who have been protecting, conserving, and living in the forest for generations. Then, in 2001, the Forest Ministry misinterpreted a Supreme Court ruling 7 and used it to evict 300,000 people from their land over a six month period. This led to peaceful mass movement by tribal activists, with millions of people marching from the hinterlands to the capital. 8 A Campaign for Survival and Dignity (CSD) 9 brought multiple groups together to demand for a policy to ensure the rights of forest dwellers on forest lands as this eviction threatened about three million tribal families. 10 This collective action led to the passing of the Forest Rights Act (FRA) in 2006. 11

Today, forests provides livelihood and life sustaining resources to approximately 275 million 12 forest dwelling people in around 173,000 villages 13 in India. FRA recognizes a range of rights including:

Community Forest Rights (CFR): gives access to collect, use, and dispose of forest resources in a sustainable way. This confers to Adivasis, the rights of managing and governing the forest and its resources, securing their right to land, right to use their Indigenous knowledge for sustainable use of forests, right to dignified livelihoods, and also gives them a political voice in matters of how the forest can be used for development purposes by the State. The nature of the relationship between the State and the community changes as communities now manage and govern the land as opposed to being considered “encroachers.”
Individual Forest Rights (IFR): gives access to land for farming up to four hectares. The individual has the right to use the land for agriculture and other livelihood purposes, securing their food and livelihood.
In-situ rehabilitation and protection from arbitrary displacement: this has been one of the key grievances of forest-dwelling communities.

Implementation

The implementation structure is institutionalized within the existing bureaucracy where district administration is involved in conferment of the titles, which are scrutinised at the Gram Sabha 14 and sub-divisional level of governance. The process involves officials from relevant state level departments (i.e., the Forest, Revenue, and Tribal Department), non-governmental organizations (NGOs), and experts working on the subject, along with representation from forest dwelling scheduled tribes. 15

The FRA has a three-tier quasi-judicial system of authority for verifying and adjudicating claims. While the Gram Sabha remains the primary authority for initiating the claims process by receiving and verifying the claims and once verified, it sends its recommendation to the sub-divisional level committees (SDLCs) set up at the sub-divisional level. The SDLCs then examine the resolution passed by the gram sabha and prepare the record of forest rights, forwarding it to the district level committee (DLC) for a final decision.

Cost

The implementation of FRA involves various costs, including administrative, financial, and social costs, however, there is no specific budgetary allocation at the central level. State government bodies can apply to grants for implementation of FRA through Article 275(1) of Constitution. The cost varies from state to state as it depends on forest area and the population of forest-dwelling communities. The state of Odisha became the first state to allocate separate funds to the tune of 2,600 lakh INR (approximately USD 3.2 million) in its budget in 2023 16 to expedite the settlement of rights by 2024. 17

Assessment

RA is considered a landmark law in India. In 15 years of its implementation, FRA has recognized approximately 2.2 million Individual Forest Rights and 102,889 Community Forest Rights 18 equivalent to 6.8 million hectares (MHa) of forest land across 20 states with an average of 50.37 percent of titles distributed over the number of claims received. There is potential to restore rights over approximately 40 MHa of land. 19

The impact of the policy goes beyond the numbers of titles: it has given voice to the community by dismantling colonial forest bureaucracy, conferring democratic rights and empowering tribal women, who largely depend on forest resources and share a bond with the forest ecosystem. Decentralized governance of forest land and resources by the community has given the legal framework to the community to contest any land grab by the state or corporate entities.

The landmark judgement in the case of Vedanta—Niyamgiri 20 is one such example that upholds the spirit of the Act. In 2013, in the case of Orissa Mining Corporation vs. Ministry of Environment and Forest (MoEF) and Others (Vedanta Mining), the Supreme Court of India decreed that the “Gram Sabha: (Village Assembly) has the authority to determine whether the proposed project would affect individual or community rights including cultural and religious rights under FRA and that this is a precondition before the mining process in “Niyamgiri” hills can proceed. 21 Unanimous rejection by the communities led to the final verdict that upheld the democratic rights of the community and demonstrated the power of the underprivileged, by putting a halt on Vedanta’s operations in Niyamgiri. In January 2014, MoEF that aided Vedanta’s incursion of Niyamgiri, withdrew approved projects and expansion plans. 22 This decision gained coverage in the international media and also attracted international support.

The Act has also dismantled decolonizing conservation practices while acknowledging stewardship of communities. FRA ensures that individual land titles are given in the name of the husband and wife, giving equal rights to both partners. Also, the provisions of having women members (1/3rd) in the Forest Rights Committee (elected for verification process) as well as in the Community Forest Resource Management Committee (CFRMC, elected for governance and management of resources after confinement of rights) has also strengthened their participation in the decision-making process and conservation practices.

Theoretically, the Forest Rights Act, 2006 presents a solution to the issues of land dispossession. Redistributive land reform not only enhances production and reduces poverty but is also a part of a democratic revolution. 23 However, in practice, there have been some issues with implementation due to the bureaucracy involved, requirements of the Act and in some instances, lack of awareness about the provisions of the Act by tribal communities. In terms of requirements, OTFD (Other Traditional Forest Dwellers) claimants are required to produce documentary evidence proving 75 years of residence. 24 This is a challenge for most marginalized communities, particularly as many have been displaced multiple times over generations, besides the difficulties associated with maintaining 75 year formal records. Elsewhere, lack of awareness and geographical remoteness further impedes tribal communities from claiming their rights. States, such as Maharashtra and Orissa, where tribal activism has been able to create awareness amongst community members, and the language of the Act has been demystified, have performed better. 25

Additional Information

India is home to the second largest population of Indigenous people, at almost 104 million people. Adivasis are considered the “original inhabitants” and are traditionally and historically linked to land and forests. 26 Adivasis were systematically racialized, oppressed, and dispossessed of their lands since the passing of the first Indian Forest Act in 1865. The Act (IFA, 1865) claimed Indian forests under the British administration. It truncated the traditional use of forest resources by forest-dwelling communities, deprived them of their land and its resources (their only source of livelihood), health and nutrition, way of life and dignity as they were deemed encroachers and thieves. In addition to IFA, the British administration also passed Criminal Tribes Act, 1871 and subsequent acts.

By 1991, STs only comprised 8.1 percent of the total population but they constituted more than 40 percent of the population displaced due to development projects 27 leading to a lower human development index (HDI) and human poverty index (HPI) for this community (approximately 30 percent lower than all-India indices). 28

1. FRA, 2006 was enacted in December 2006 and the notification of rules for the implementation was released on January 1, 2008z, see “Forest Rights Act, 2006: Acts, Rules and Guidelines,” Ministry of Tribal Affairs, Government of India and United Nations Development Programme, India, 2014, https://tribal.nic.in/downloads/FRA/FRAActnRulesBook.pdf
2. As per the Forest Rights Act, "Forest Dwelling Scheduled Tribes" means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities; “Forest Rights Act, 2006.”
3. The term “Adivasi” used for being indigenous (what the Indian Government assigns as Scheduled Tribe from the administrative perspective of lack of literacy, economic backwardness, lack of political participation and their inability to deal with the external societies) emerged more as political self-reference than as an anthropological definition of such groups. It relates more to the common experience of subjugation faced by tribal groups from the state since colonial times. The term signifies the communities’ demand for recognition of identity to, and rights over, ancestral lands, forests, customary practices, and self-governance amidst the exploitative relationship by the larger dominants. Xaxa, “Tribes as Indigenous People of India,” Economic and Political Weekly, vol. 34, no. 51 (December 1999): 3589–3595, https://www.jstor.org/stable/4408738, Accessed on March 30, 2023
4. As per the Act "other traditional forest dweller" means any member or community who has for at least three generations prior to December 13, 2005 primarily resided in, and depended on, forest lands for bona fide livelihood needs. “Forest Rights Act, 2006.”
5. Examples include: the Indian Forest Act (1927), National Forest Act (1952), Wildlife Protection Act (1972), and National Forest Act (1988). All these Acts tended to continue the colonial regime and justified extracting forest resources in the name of national development while continuing restriction of customary/ancestral rights of communities over forest land and resources.
6. Rights of Forest dwelling communities over forest land and resources continued to be truncated during colonial time through enactment of first Indian Forest Act (1865). While the Act in itself delegitimize the community’s rights over forests, enactment of Criminal Tribe Act of 1871 and 1876 further criminalized 200+ communities which continued in Independent India through the Habitual Offender Act, 1952 and the Forest Conservation Act of 1980, which saw forest dwellers as exploiters and hence criminalized, which led to further strengthening of the “Fortress form” of Forest Conservation.
7. Amicus Curiae files IA 703 in the “Godarvarman case” (Writ Petition (C) No. 202 of 1995), which sought to restrain “regularization of any encroachments'' as well as “further encroachments,” and “steps to clear the encroachments in forests which have taken place after 1980.” Prayer (a) requests the Court to “restrain the Union of India from permitting regularization of any encroachments whatsoever without leave of this Hon’ble Court,” Supreme Court of India: Record of Proceedings, “SLP (Crl.) No. 4017 of 2003, Item No. 47,” May 28, 2003, https://main.sci.gov.in/jonew/bosir/orderpdf/167371.pdf; This order was misinterpreted by the Ministry of Environment and Forest and on May 3, 2002, a letter of Inspector General of Forests (IGF) instructed state governments “to evict the ineligible encroachers and all post-1980 encroachers from forest lands in a time-bound manner. This letter refers to the SC order of November 23, 2001 in IA 703, and apparently created an impression that the SC had ordered the States to evict “encroachers” from forest land. This triggered a wave of brutal evictions around the country; Dreze, J., “Tribal evictions from forest land,” eSocialSciences, (March 2005): 1–23, https://prsindia.org/files/bills_acts/bills_parliament/2005/bill53_2007010353_Nac_note_on_tribal_eviction.pdf
8. Kumar, K. and Kerr, J.M., “Democratic Assertions: The Making of India’s Recognition of Forest Rights Act,” Development and Change, 43, no. 3 (2012): 751–771, https://doi.org/10.1111/J.1467-7660.2012.01777.X
9. In the leadup to the 2004 national elections, more than 150 organizations representing tribal groups and other forest dwellers (notably including the Bharat Jan Andolan and the National Front for Tribal Self-Rule, both prominent and well-organized tribal rights organizations) formed the Campaign for Survival and Dignity (CSD) in 2002, and promptly organized massive rallies, protests, and public hearings across the country. See Nitin Sethi, “Activists come out with ads to slam forest Act,” The Times of India, October 23, 2007, referenced in Dlugoleski, Deirdre N. “Undoing Historical Injustice: The Role of the Forest Rights Act and the Supreme Court in Departing from Colonial Forest Laws,” Indian Law Review, 4, no. 2 (2020): 221–43. https://doi.org/10.1080/24730580.2020.1783941
10. Dreze, “Tribal evictions from forest land.”
11. Sharma, A.B., “The Indian Forest Rights Act (2006): A Gender Perspective,” ANtyAJAA: Indian Journal of Women and Social Change, 2, no. 1 (2017): 48–64, https://doi.org/10.1177/2455632717716258
12. “India Unlocking Opportunities for Forest-Dependent People in India (Vol. 1),” World Bank, 2005, https://documents1.worldbank.org/curated/en/373571468268482287/pdf/3448110vol01.pdf
13. Mathur, Ajay, JV Sharma, Subhash Ashutosh, and Priyanka, “Will India Attain Its Forestry NDC Target of Achieving 2.5–3 Billion Tonnes of Co2 Equivalent through Additional Forest and Tree Cover by 2030?” The Energy and Resource Institute, (February 2021): 1, https://www.teriin.org/sites/default/files/2021-02/will-india-attain-forestry.pdf
14. Gram Sabha is the legislative body that operates at the village level and takes into account the annual budget and audit reports of the Gram Panchayat.
15. “Forest Rights Act, 2006.”
16. Tripathi, Aishwarya, “Forest Rights Act: Odisha leads the way with a separate FRA budget, and updation of land records,” Gaon Connection, 2023, https://www.gaonconnection.com/lead-stories/forest-rights-act-2006-odisha-budget-2023-tribal-population-forest-dwellers-community-rights-record-correction-gram-panchayat-land-ownership-documents-51756
17. Barik, Satyasundar, “Odisha wants to finish implementing Forest Rights Act by 2024," The Hindu, July 8, 2022, https://www.thehindu.com/news/national/other-states/odisha-wants-to-finish-implementing-forest-rights-act-by-2024/article65612383.ece
18. Singh, Samidha, “Monthly Progress Report of Implementation of Forest Rights Act, 2006,” Ministry of Tribal Affairs, Govt. of India, November 2022, https://tribal.nic.in/downloads/FRA/MPR/2022/(A) MPR Nov 2022.pdf
19. Anup, Kumar and M. Lekshmi, “15 years of FRA: What Trends in Forest Rights Claims and Recognition Tell us.” Science – The Wire, 2021, https://science.thewire.in/politics/rights/15-years-forest-rights-act-claims-recognition-trends/
20. Major contestations against mining, extraction, and exploitation of forest by government and private entities have come from Indigenous communities—be it during colonial time or post-independence ranging from Jatra Bhagat movement in early 1900 to legal battles against Vedanta, Sterlite, Lloyd Steel, JWS Steel and Arcelor Mittal to indefinite peaceful protests in Narmada Basin and most recently, in Mumbai to protect the only green cover remaining in Aarey Forest. The FRA has provided the legal framework that protects the communities from unlawful dispossession of their ancestral land, giving them the authority to make decisions at the Gram Sabha level. For more information on these cases: Anwar, S, “Tribal Rebellions during British India: A Complete Summary” Jagran Josh, 2018, https://www.jagranjosh.com/general-knowledge/summary-of-the-tribal- rebellions-during-british-rule-in-india-1521541943-1, accessed March 30, 2023; Jolly, Stellina, “The Vedanta (Niyamgiri) Case,” The Cambridge Handbook of Environmental Justice and Sustainable Development, (2021): 289–302, https://doi.org/10.1017/9781108555791.022; Dave, M., “Gujarat Govt Gives In To Tribals’ Protest, Scraps Par-Tapi-Narmada Project,” The Indian Tribal, 2022, "https://theindiantribal.com/2022/05/21/gujarat-govt-gives- in-to-tribals-protest-scraps-par-tapi-narmada-project,, accessed: March 29, 2023).
21. Jolly, “The Vedanta (Niyamgiri) Case.”
22. Anjali George, “Claiming Niyamgiri: The Dongria Kondh’s Struggle against Vedanta,” Intercultural Resources, 2014, https://www.ritimo.org/Claiming-Niyamgiri-the-Dongria-Kondh-s-Struggle-against-Vedanta
23. Bakshi, A., “Social Inequality in Land Ownership in India: A Study with Particular Reference to West Bengal,” Social Scientist, 36, no. 9 (2008): 95–116, https://www.jstor.org/stable/27651820, accessed: March 23, 2023
24. Sarin, Madhu, and Oliver Springate-Baginski, “India’s Forest Rights Act-The Anatomy of a Necessary but Not Sufficient Institutional Reform,” Institutions and Pro-Poor Growth (IPPG), 2010, www.ippg.org.ukwww.ippg.org.uk
25. Broome, Neema Pathak et al., “Promise and Performance: 10 Years of Forest Rights Act in India,” CFR-LA Maharashtra Group, 2017, http://old.atree.org/sites/default/files/Maharashtra_FRA_CFR_Promise_and_Performance_June2017.pdf
26. Xaxa, V., “Tribes and Indian National Identity: Location of Exclusion and Marginality,” The Brown Journal of World Affairs, 23, no. 1 (2016): 223–237, https://www.jstor.org/stable/26534720
27. Ray, Parshuram, “Development Induced Displacement,” South Asian Refugee Watch, 2 no. 1 (2000): 33–40, DOI:10.5958/0976-0148.2018.00008.2.
28. Sarkar, Sandip et al., “Development and Deprivation of Scheduled Tribes,” Economic and Political Weekly, 41, no. 46 (2016): 4824–27, https://www.jstor.org/stable/4418927

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