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) Act, 2006 is a result of the protracted struggle by the marginal and tribal communities of our country to assert their rights over the forestland over which they were traditionally dependent. This Act is crucial to the rights of millions of tribals and other forest dwellers in different parts of our country as it provides for the restitution of deprived forest rights across India, including both individual rights to cultivated land in forestland and community rights over common property resources. The notification of Rules for the implementation of the Forest Rights Act, 2006 on 1st Jan 2008, has finally paved the way to undo the ‘historic injustice’ done to the tribals and other forest dwellers.

The livelihood of perhaps 100 million poorest of the poor (The Indian Forest Rights Act 2006: Communing Enclosures) stands to improve if implementation can succeed. The Act is significant as it provides scope and historic opportunity of integrating conservation and livelihood rights of the people.
This Act is a potential tool

  • To empower and strengthen the local self-governance
  • To address the livelihood security of the people, leading to poverty alleviation and pro poor growth
  • To address the issues of Conservation and management of the Natural Resources and conservation governance of India.

SIGNIFICANCE OF THE ACT

For the first time Forest Rights Act recognises and secures
✓ Community Rights or rights over common property resources of the communities in addition to their individual rights
✓ Rights in and over disputed land

✓ Rights of settlement and conversion of all forest villages, old habitation, un-surveyed villages and other villages in forests into revenue villages
✓ Right to protect, regenerate or conserve or manage any community forest resource which the communities have been traditionally protecting and
conserving for sustainable use.
✓ Right to intellectual property and traditional knowledge related to biodiversity and cultural diversity
✓ Rights of displaced communities
✓ Rights over developmental activities

Forest dweller and rights
There are two stages to be eligible under this Act.
First, everyone has to satisfy two conditions:
a) Primarily residing in forests or forest lands;
b) Depends on forests and forest land for a livelihood (namely “bona fide livelihood needs”)
Second, one has to prove:
✓ That the above conditions have been true for 75 years, in which case one is another Traditional Forest Dweller or
✓ That you are a member of a Scheduled Tribe and That you are residing in the area where they are Scheduled.

A. Rights of forest dwellers
The law recognises three types of rights:

1. Land Rights

No one gets rights to any land that they have not been cultivating prior to December 13, 2005 and that they are not cultivating right now. Those who are cultivating land but don’t have document can claim up to 4 hectares, as long as they are cultivating the land themselves for a livelihood. Those who have a patta or a government lease, but whose land has been illegally taken by the Forest Department or whose land is the subject of a dispute between Forest and Revenue Departments, can claim those lands.
There is no question of granting 4 hectares of land to every family. If one is cultivating half a hectare on December 13, 2005, one receives title to that half a hectare alone; and if one is cultivating nothing, one receives nothing. If one is cultivating more than 4 hectares without documents or a dispute, one receives
title to only 4 hectares. The land cannot be sold or transferred to anyone except by inheritance

2. Use Rights

The law secondly provides for rights to use and/or collect the following:
a. Minor forest produce things like tendu patta, herbs, medicinal plants etc “that has been traditionally collected. This does not include timber.
b. Grazing grounds and water bodies
c. Traditional areas of use by nomadic or pastoralist communities i.e. communities that move with their herds, as opposed to practicing settled agriculture.

3. Right to Protect and Conserve
Though the forest is supposed to belong to all of us, till date no one except the Forest Department had a right to protect it. If the Forest Department should decide to destroy it, or to hand it over to someone who would, stopping them was a criminal offence.
For the first time, this law also gives the community the right to protect and manage the forest. Section 3(1) (i) provide a right and a power to conserve community forest resources, while section 5 gives the community a general power to protect wildlife, forests, etc. This is vital for the thousands of village
communities who are protecting their forests and wildlife against threats from forest mafias, industries and land grabbers, most of whom operate in connivance with the Forest Department.

B. Recognition of rights

Section 6 of the Act provides a transparent three step procedure for deciding on who gets rights.
✓ First, the gram Sabha (full village assembly, NOT the gram panchayat) makes a recommendation – i.e who has been cultivating land for how long, which minor forest produce is collected, etc. The gram Sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent. The gram Sabha’s recommendation goes through two stages of screening committees at the taluka and district levels.
✓ The district level committee makes the final decision (see section 6(6)). The Committees have six members – three government officers and three elected persons. At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees, and if they prove their case the right is denied (sections 6(2) and 6(4)).
✓ Finally, land recognised under this Act cannot be sold or transferred.

Forest Rights Act

The enactment of the FRA has been a very important move in taking away the burden of illegality from the shoulders of tribals, and forest dwelling and dependent communities. The Indian Forest Act, 1927 and its predecessor Act of 1878 vested control over the forest resources in the state. Forest area covers 23 percent of land mass and over the years, forest communities have been treated as encroachers and their activities in forest areas as ‘forest offences’.

Implementation of the FRA

Implementation of the FRA has been weak. In 2010, the Ministry of Tribal Affairs (MoTA) and Ministry of Environment and Forests jointly constituted a committee to study the factors that aid or impede the implementation of the law and recommend necessary policy changes (hereinafter ‘2010 Joint Committee Report’). It appears that many of their findings persist and recommendations remain relevant. These include:
The implementation of the FRA has been poor, and therefore it’s potential to achieve livelihood security and changes in forest governance along with strengthening of forest conservation, has hardly been achieved.

  • There have been serious flaws in many states relating to the constitution of the Forest Rights Committee (FRC) at the grassroot level which has the crucial role of assisting the Gram Sabha (GS) in determining the claims from individuals by receiving, consolidating and verifying them on the ground.
  • Several states have utilized GPS technology for plot delineation. It is recommended that a special set of guidelines need to be worked out for the proper use of spatial technology in the delineation, location, and status verification of claims filed, to ensure reliability, objectivity and transparency.
  • The FRA stipulates that forest-dwelling Scheduled Tribes and Other Traditional Forest Dwellers (OTFDs) are not to be evicted or removed from forest land under their occupation till the process of recognition and verification of their rights is complete. The committee members found that this provision of the Act has been violated such as in Thane, Maharashtra where FRA claimants were evicted even as their claims were pending with no notice.
  • The relocation from Protected Areas including Tiger Reserves without having completed the procedures under the FRA was identified as a gross violation of the FRA.
  • Though the FRA does not and should not provide any deadline for completion of the process, states should expedite recognition of rights within an appropriate time frame which is to be decided in consultation with the forest dwellers and civil society, so that governments do not slacken off on implementation.
  • The MoTA should issue a clarification that OTFDs as defined under the FRA are all those who can prove seventy five years of residence in the area (not necessarily on the plot being claimed), and dependence on the forest land as of December, 2005. The MoTA should also clarify what kinds of evidences may be used for such proof and how these are to be made available to the villagers. MoTA should also clarify that no disqualifications on the basis of possession of additional revenue land or jobs, or location of residence on revenue land, etc. are permissible under the FRA.
  • State governments should review their State Level Management Committees, District Level Committees, and Sub-Divisional Level Committees, regarding their composition, functioning, public interface, and transparency, and issue directions for necessary correctives in each of these institutions.
  • Most states have concentrated almost entirely on implementing the provisions for individual forest rights (IFR).
  • Claims are being rejected without assigning reasons, or based on wrong interpretation of the ‘OTFD’ definition and the ‘dependence’ clause, or simply for lack of evidence or ‘absence of GPS survey’ (lacunae which only require the claim to be referred back to the lower-level body), or because the land is wrongly considered as ‘not forest land’, or because only forest offence receipts are considered as adequate evidence. The rejections are not being communicated to the claimants, and their right to appeal is not being explained to them nor its exercise facilitated.
  • Section 3 (1) (m) of the FRA, regarding the rights of persons illegally displaced or evicted by development projects without proper compensation, has not been implemented at all. While on one hand, we see an absence of the procedure stipulated in the FRA, on the other, strict adherence to conditions not even required or permitted under the Act are used to disregard claims.
  • The term “individual forest rights” isn’t actually used in the FRA, it has found its way to official records and common parlance to denote rights to forest land with individual tenure. Section 3 of the Act includes: “right to hold and live in the forest land under the individual and common occupation for habitation or for self- cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other Traditional Forest Dwellers”.

In addition to the findings from the Joint Committee Report, 2010, it ahs been found that:

  • A common ground of rejection is that the person is not a Scheduled Tribe (ST) even though the FRA unambiguously states that rights to forest land are available to “Scheduled Tribe or other Traditional Forest Dweller” Claims are often rejected due to absence of ST community certificates. OTFD claims in Andhra Pradesh have largely not been entertained due to lack of evidence.
  • In Odisha, OTFD’s have mainly been discouraged from filing claims and most of their claims have been rejected at the Gram Sabha level itself or not accepted by the FRC. Claims have also been rejected due to inability to prove plot cultivation for seventy five years prior to 13th December 2005.
  • There are reports of claims being rejected on the ground that the claimed land is ‘disputed’. As per SCSTRTI Report, 2013: “In Chhattisgarh, the issue of Ghas zameen (revenue land) is disputed by villagers in many sites which they consider as narangikshetra, something that is popularly known as ‘orange areas’ in government parlance, an area, ownership of which is disputed between the forest and revenue department. It must be noted that these orange areas are recorded in records of both forest and revenue department and so long as the land is recorded as forest land, it comes under the ambit of the FRA. Thus, denying rights over such lands is in violation of the law” A dispute between two departments cannot be a reason for denying people their due under the law.

C. Community Forest Rights

The FRA recognizes various community forest rights which could potentially operate as a powerful, and meaningful, way for forest dwelling communities to protect their way of life. Till as late as 2012, however, these rights were almost entirely ignored. Most often, they were confused with the Section 3(2) provisions which provide communities with education and health facilities and connectivity when there was diversion of forest land for non-forest purposes.

Despite very poor implementation of community rights, the Joint Committee Report, 2010 was quick to caution that “the current status of community claims is not indicative of the potential of such claims. If the various shortcomings in implementation described below are removed, the claims could spread to several million hectares in the next few years.”

It is clear that unless enforcement of CFR is a community driven process, its implementation will be incomplete. When it comes to community rights awareness among claimants and FRC members is still abysmally low, even when compared to awareness regarding individual claims. This is corroborated by surveys conducted on the Status of level of Awareness amongst Multiple Stakeholders (percent) by SCSTRTI in 2013.
In many cases, the Forest Department is actively impeding the process of CFR rights and recognition. For example, as per a recent study conducted, 27 CFR titles have been claimed and even conferred in Sarguja district of Madhya Pradesh but the Forest Department does not recognize them. The general misunderstanding is that FRA is a “scheme for tribals” to the exclusion of OTFDs and therefore, CFR titles will be granted to “Scheduled Tribes only” villages. Right from its first phase of implementation, it is noted that district administrations refuses to accept oral evidence from elders although it is allowed as per the Act. Authorities are also incorrectly requiring proof of “occupation” (and not proof of “residence” as stipulated under the FRA and as clarified by the guidelines issued by MoTA) of forest land for three generations prior to 13th December, 2005. In the Nayagarh district of Odisha, CFRs have not been recognized in villages with a mixed population of Scheduled Tribes and OTFDs. In Jharkhand as well, 73 claims out of 47 claims filed by OTFDs, have been rejected (i.e. 50 percent rejection).

In Chhattisgarh, there are continuing reports of Forest Rights Committees (FRCs) being constituted at Panchayat level overseeing several villages. In most cases, members of such FRCs are not aware of their membership and their duties. Lack of awareness, information and training on filing CFR claims in such FRCs prevents interested communities from filing claims.

There are also reports of such FRCs being manipulated by village elites leading to conflicts.
In Tamil Nadu, it is the Court that has restricted recognition of these rights. The Madras High Court order dated 30 th April 2008 restricted the issuance of titles under Section 3(1) unless approved by the Court. The order clarified that the process of verification of the claim shall continue but even so implementing authorities interpreted the order to mean that no action is to be taken on the claims, including the process of recognition of claims, without the High Court order being vacated. On 2nd September 2008, the Court clarified that the process of identity and recognition may go on and only the final decision shall not be taken without leave of the Court.

Exercise of rights over the Minor Forest Produce (MFP), a community right under the FRA, remains a big challenge across the states. There is no institutional mechanism developed so far to support the rights holders in the process of exercising the MFP rights particularly in the disposal and marketing of the produce. The problem is seen more in case of nationalized produce like Bamboo and Tendu leaves. Apart from these challenges in the trade of MFP, the non-commercial values of such produce are of critical importance to the lives of forest dwelling communities.

D. Joint Forest Management
In areas where Joint Forest Management (JFM) was in practice, there were complaints that the FRA was sought to be kept out. Further, attempts were to convert the village forest committees set up into forest rights committees under the FRA, which is not in consonance with the law.
In Andhra Pradesh, the SCSTRTI study notes that “community forest rights were generally understood as rights over areas of Vana Samrakhyan Samiti (VSS), an institution created by the Forest Department under the Joint Forest Management Program. Instead of conferring title to the Gram Sabha, CFR titles have been found to have been issued in the name of individuals like VSS chairperson or village elder or Sarpanch, which is a clear violation of the law”.
In a letter addressed to the State Forest Department, dated 17th August 2013, MoTA clarified that the grant of community rights titled in the name of VSSs under the FRA was a violation of the Act and such JFM committees could not be claimants under the FRA.
In Gadchiroli, Maharashtra a study reports “In almost all the villages we visited in Gadchiroli, JFM has been implemented, even after the CFR titles have been granted. The reason given by facilitators is that for works taken up under JFM, funding is provided by the Forest Department. CFR rights come with the responsibility of protecting, conserving and regenerating their forests. However, there is no provision of funding for work related to these responsibilities. Also, though the CFR titles have been granted, the forests given under CFR to many villages do not have bamboo or any other NTFPs, which could help communities earn livelihood.” In Tamil Nadu, “they have not been allowing filing of CFRs (as in Madurai, Virudhunagar, and Tirunelveli districts of Tamil Nadu) because forests rights like grazing have been curtailed under former JFM programs.”
In Uttarakhand, “considering the historical background of Van Panchayats and clash with JFM strongholds, there is poor awareness about FRA at the village and administrative level and a negation of the hamlet level process of FRC constitution and recognition of OTFDs and of community forest rights.”

E. Women
Women’s participation in processes under the FRA remains low. Women are dependent on forest and forestland for their livelihood and active participants in the various forest activities. In a telling statement, the women’s cooperative President in Panibhandar village in Odisha reportedly said in an interview, “My land and forest is important for me, what will I do with other things if there is no right over forest. Forest is the only resource from which women are getting income.” The absence of their voice at various levels (from Gram Sabhas to forest committees) means that critical issues are often overlooked.

Empowering provisions for women under FRA include:
Section 2(g) of the Act provides for the full and unrestricted participation of women in Gram Sabha Rule 4 (2) provides that “The quorum of the Gram Sabha meeting shall be not less than one-half of all members of such Gram Sabha: Provided that at least one-third of the members present shall be women
Rule 3 (1) provides that not less than 1/3rd of the members of the FRC shall be women
Rule 5 (c) requires that at least one of the three PRI members nominated to the SDLC shall be a woman.
Similarly, rule 7 (c) requires that out of the three members of the district panchayat to be nominated to the DLC by the district panchayat, at least one shall be a woman Section 4 (4) A right conferred by sub-section (1) shall be heritable but not alienable or transferable and 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.
There has been little perceptible effort to create awareness among women regarding the process of claim making, verification and the rules relating to it. However, according to the field study, most women gain awareness through NGOs working in their area and through their cooperative societies. A large majority (80 percent) are not aware of the amount of land claimed by their husbands and how much land is recognized.
The field report reveals that although the population of women in villages is often more than men, this is not reflected in their representation in the Gram Sabha.
Even among the women who participate in the Gram Sabha, the study points to lack of basic awareness. Single women and widows were a majority of the women present. Others only come when their husbands are unable to do so and stated that they were usually not allowed to air their opinion and therefore preferred not to participate.
Representation in Forest Rights Committee (FRC): One third representation of women in the FRC is mandated by law. Field studies in Odisha revealed that in most places, there was only 20 percent representation of women.
Joint titles: The law mandates that certificates for forest claims must be issued jointly in the name of both the husband and wife; however studies show that this provision has been largely ignored in Odisha, and the survey shows low levels of awareness about this provision among women.

F. Forest Rights Act in Protected Areas
There are about 690 Protected Areas (PAs), i.e., National Parks and Sanctuaries in India. These areas are established under the Wildlife Protection Act, 1972 (as amended in 2006), and recognized under the Forest Rights Act. Approximately, three million people in India, most of whom are tribals, live inside PAs and are dependent on them for forest resources. However, in the decades running into a century, forest dwelling and forest dependent tribal communities were treated as encroachers and forest offenders even when, for instance, they would be found collecting minor forest produce.
The FRA recognizes not only the right that the tribals and the Other Traditional Forest Dwellers(OTFDs) have in relation to the forest, but it also empowers the holders of any forest right, Gram Sabha and village level institutions in areas where there are holders of any forest right under this Act to:
“(a)Protect the wild life, forest and biodiversity; Ensure that adjoining catchments 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;
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 biodiversity are complied with.”
There have been situations where tribals and OTFDs have continued to be viewed as communities who should be evicted from the forest so as to pursue other conservation goals. Most states exclude PAs from the application of the FRA due to a lack of understanding and awareness of the law, and that the tribal population is a menace to wildlife in those areas.
Moreover, forced eviction, relocation and harassment by forest officials is commonplace. Reports suggest that between 100,000 and 300,000 people have been evicted from protected areas at different times. This is despite the law stating that eviction before verification and settlement of claims under the FRA is complete, is unlawful. Yet widespread displacement of tribals continues to occur. This has caused a decline in their economic status, as well as erosion of their customary forest practices. A detailed issue-based analysis is provided below.

Critical Wildlife Habitats (CWH)
Critical Wildlife Habitats (CWH) are a specific kind of protected area, defined under the FRA as, “areas of National Parks and Sanctuaries where it has been specifically and clearly established, case by case, on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purposes of wildlife conservation as may be determined and notified by the Central Government in the Ministry of Environment and Forests after an open process of consultation by an Expert Committee, which includes experts from the locality appointed by that Government wherein a representative of the Ministry of Tribal Affairs shall also be included, in determining such areas according to the procedural requirements arising from sub-sections (1) and (2) of section 4.”
The following constitute the conditions laid down under the FRA, all of which must be fulfilled, before declaring CWHs.
• The process of recognition of forest rights in PAs must be complete
• The impact caused by the presence of the rights holders must be sufficient to cause irreversible damage to the species and their habitat
• The State government concludes that co-existence is not possible
• A resettlement package has been prepared and communicated to the affected communities
• Free and informed consent of the Gram Sabha to the proposed resettlement has been taken
• No resettlement to take place until land allocation according to the promised package is complete.
• Rushed notification of CWH by government agencies leads to a host of problems that overlook the conditions required by FRA.

Non-recognition and rejection of Community Forest Rights claims CFRs assume special importance in PAs as the FRA defines the use of community forest resource to which the community had traditional access within protected areas like national parks and sanctuaries. There are certain incorrect assumptions regarding implementation of the FRA. At the Forest Department level, it was believed that rights under FRA couldn’t be claimed in PAs or when resettlement was already underway before the FRA was enacted, and that FRA is not applicable in Tiger Reserves. In Tamil Nadu’s State Action Plan, it is stated that Minor Forest Produce collection in PAs is not affected by FRA because it is not a traditional right.
The Government of Sikkim via a notification dated 28.1.2008 constituted an Expert Committee for identification of Critical Wildlife habitats in Protected Areas. It has also constituted other Committees under the Act namely SDLC, DLC and SLMC. However, the Government has remarked that ‘In Sikkim, there are no Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers in the true sense of the terms. Most of the Scheduled Tribes of Sikkim hold revenue land in their own name and they are not solely dependent on the forests for their livelihood.’ This kind of misinterpretation and non-implementation of the FRA makes recognizing CFRs more problematic in PAs.
Pending claims are common in PAs, since officials incorrectly believe that FRA is not applicable in these areas. In the Palamu Tiger Reserve in Jharkhand, CFR claims have been pending since 2011. In Biligiri Rangaswamy Temple Sanctuary (Karnataka), Soliga adivasis have applied for CFRs with detailed documentation and maps, yet their claims have been pending. In Wadala, in Tadoba Andhari Tiger Reserve, CFR claims were rejected by the SDLC, because the villagers would have a negative impact on the area. In Badrama Wild life Sanctuary in Sambalpur CFR rights are not being recognized. The Raika tribe in Rajasthan are a pastoral community. However, for grazing cattle in Kumbhalgarh Sanctuary of Rajasthan, no permits have been issued to them since 2002, though higher
penalties are being imposed for grazing in the PAs. A possible reason for rejection of claims is that the area claimed does not use new technology like satellite imagery and instead relies on traditional methods of land demarcation.

Consultation with and consent of the Gram Sabha

Both the FRA and the Wildlife Protection Act, 1972 amended in 2006(WLPA), require that the Gram Sabhas of the affected areas be consulted before declaring CWHs or PAs. Examples indicate that this provision remains in disuse. In Yawal Wildlife Sanctuary of Maharashtra, a committee was formed for demarcation of a CWH minus participation from the affected villagers. Often Gram Sabhas are neither sent notices for consultation, nor are their consent signatures taken by the Government for declaring CWHs. Further field visits to Sariska tiger reserve have indicated that Gram Sabha Consent has not been taken, only individual families have been approached by the Forest Department. Further, they have been ‘informed’ that they must consent to one of two options under the compensation scheme-cash for land, or land for land. If they do not choose either, they will have missed the opportunity.

Relocation without following process under WLPA and FRA

The FRA makes it abundantly clear that relocation cannot be undertaken without rights recognition and consent of the Gram Sabha, among other conditions. The focus remains on relocation instead of exploring coexistence. Even so, there are examples of illegal relocation in the areas of Bandipur and Nagarhole National Park in Karnataka, Simlipal in Odisha, Sariska in Rajasthan, and Udanti and Achanakmar in Chhattisgarh. A letter by the Additional Inspector General (FC), MoEF (FP Section) compelled the Scheduled Tribes in the National Parks and Wildlife Sanctuaries to leave the premises of National Parks and Wildlife Sanctuaries without settling the rights under the provisions of the FRA. In 2012 the Ministry of Tribal Affairs communicated to the Chief Ministers of State Governments that tiger and wildlife habitats were being demarcated in violation of the law, and affected tribals were being asked to relocate without settlement of rights.

Tiger Reserves

There are 41 Tiger Reserves in India declared under the WLPA 2006. The Tiger Reserve areas largely overlap with the Scheduled Areas where the population is predominantly tribal. The WLPA defines critical tiger habitat and ‘core’ or ‘buffer’ areas. The purpose of this Act was to attain the objectives of ‘tiger conservation’ while ensuring that the rights of tribal people living in and around Tiger Reserves are not impeded. Tiger Reserves are to be notified by the State Governments on the recommendations of National Tiger Conservation Authority (NTCA). Core and buffer/peripheral areas must also be designated and included in the tiger reserve, at the time of notification. As per explanation (i) of Section 38(v) (4) of Wildlife Protection Act:
“For the purposes of this section, the expression “Tiger Reserve” includes Core or Critical Tiger Habitat (CTH) areas of national parks and wildlife sanctuaries where it has been established on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purposes of tiger conservation, without affecting the rights of the Scheduled Tribes or such other forest dwellers, and notified as such by the State Government in consultation with an Expert Committee constituted for the purpose”.(emphasis supplied) Tiger Reserves have assumed greater complications in light of the judicial
intervention by the Supreme Court in a case that has been challenging tiger tourism. On 24th July 2012, the Supreme Court issued an order, stating, among other things that “till the final directions issued by this court with reference to the guidelines submitted by the National Tiger Conservation Authority (NTCA), core zone or core areas in the Tiger Reserved Areas will not be used for tourism.” The Court had directed concerned state governments with tiger reserve areas, to issue and submit their notifications in relation to core and buffer areas, within 3 weeks from the date of the order. On 3rd April 2012 the court had also ordered a time bound issuance of notification viz. within 3 months from the date of that order. The problem is the disproportionate haste with which state governments have issued notifications of buffer areas, without following the processes prescribed under the FRA and the Wildlife Protection Act, of rights
settlement, exploring coexistence and free and informed Gram Sabha consent. The NTCA Relocation Committee Report, 2010, highlights the following issues in connection with the FRA:
No rights recognition happening in Achankmar, Panna, Sariska reserves Mostly individual consent, no evidence of ‘Gram Sabha consent’ and ‘informed’ consent. Field investigations of the Sariska reports reveals a lack of FRA information, while the Achanakmar report mentions only individual consent
Land option and compensation for actual assets not being made available, inconsistencies in resettlement package were reported from Sariska, Panna, Ranthambore, Achanakmar, Panna and Bandhavgarh Tiger Reserves.
Insufficient water facilities leading to scarcity for drinking and irrigation in the resettled land in Achanakmar and Panna.
The Supreme Court orders led the Ministry of Tribal Affairs to intervene. In an affidavit before the Court, the MoTA stated that core areas and buffer areas categories have been in existence for a long time. Any further declaration of additional buffer areas will incorporate large areas of private lands, revenue lands, or forest lands, on which Scheduled Tribes and other traditional forest dwellers are exercising preexisting rights. Therefore, “declaration of further Buffer Areas by the State Governments will cause enormous hardship to the Scheduled Tribes and forest dwellers who eke out their livelihood in these areas.” It goes on to say that consultation with the local communities, a prerequisite under PESA and FRA, has been inadequate and non-existent, because of the time bound nature of the orders of the Supreme Court, causing state governments to respond hastily and without following the law. Though, the MoEF has issued a multitude of circulars and guidelines stating that relocation can only occur if processes under FRA and WLPA are implemented, ground reality suggests otherwise.

Case study of Simlipal Tiger Reserve

Problems in connection with the notification of the Simlipal Tiger Reserve include relocation and resettlement without following the process under the FRA and WLPA, as well as tribals being restricted by forest guards from using Non Timber Forest Produce (NTFP) within the reserve. The Simlipal tiger reserve is located in the Mayurbhanj district of Odisha.
There are 65 villages situated inside the Sanctuary area of which 61 villages are in the buffer area and 4 villages are in the core area. According to the 2001 Census, the Scheduled Tribe population in the Simlipal area is around 11,520 (91.77per cent) and includes two particularly vulnerable tribal groups (PVTGs), namely, Khadia and Mankidia, who depend primarily on the forests of Simlipal. These communities are originally nomadic tribes, known for making siali ropes, catching and eating monkeys and live in areas, which are now part of the Simlipal Tiger Reserve. Their nomadic pattern is seasonal and depends on availability of non-timber forest products (NTFPs). In order to discourage this custom of killing monkeys and to decrease their use of siali (which is one of the main sources of food for elephants), many PVTGs in Mayurbhanj were relocated by the State government from the Simlipal Tiger Reserve areas into permanent colonies run by the Integrated Tribal Development Agency (ITDA). These PVTGs are restricted by forest guards to enter into the Similipal area to collect NTFPs such as the Siali Bark, amra, mahua, char and sal leaves, which they have always traditionally collected. Field studies indicate that 61 families belonging to the Khadia community were relocated from the village of Jenabil within the Similipal reserve, to Ambadiha colony in 2010. However, as per information shared by the families, the relocation was carried out without recognition of their rights under FRA and WLPA. Reportedly, individual land claims under the FRA had been made by Jenabil residents, however, they were immediately struck down by Forest Department officials, as they were in a Tiger reserve area. Post-relocation facilities in Ambadiha are also poor. Land was demarcated for them to cultivate but was not yet formally handed over to the relocated families, neither were there irrigation facilities. Another village, Kabataghai, which is a revenue village, in the Jashipur block is one of the core villages to be relocated. The village consists of 35 households of Scheduled Tribes. The villagers organized a Palli Sabha in June 2011 to discuss the proposed relocation where they opposed it. They have also submitted 23 individual forest rights claims which are yet to be recognized. Petitions have been filed by the Kabatghai village with the State Level Monitoring Committee in 2011 against the relocation process. About 32 families residing in both UparBarhakamuda and Bahaghara settlements have been relocated from the core area in November 2013. As, in other relocations, in this case, too the legal procedure under FRA and WLPA has not been followed.

Elephant Corridor
In April 2011, the Madras High Court heard a case in which the Principal Chief Conservator of Forest and the Chief Wildlife Warden had suggested that the private/patta land forming the traditional movement corridors of animals particularly the elephants, be brought under the control of the Forest Department by acquiring the land and paying compensation to the owners. The Expert Committee set up by the court, comprising five senior forest officials, has stated in its report that “all revenue lands within the elephant corridor area should be handed over to the Forest Department.”
The High Court had said that: with regard to the forest dwellers whose interests are protected under the FRA, the State government is directed to strictly adhere to and comply with the Act (FRA) when dealing with forest dwellers and others who fall within the ambit of the act and the case of any forest dweller who is evicted from the identified elephant corridor, they be provided with best alternate and suitable accommodation.’ This matter is now before the Supreme Court.
The local tribals were apprehensive that the order would be used to evict them from areas that were being declared as part of the elephant corridor. This anxiety is also reflected in the affidavit of the Ministry of Environment and Forest in the Supreme Court, which speaks of 700 families mostly dalits and tribals, who are dependent on the land for their livelihood. The affidavit filed in 2012, points out that the rights of the occupants have not been settled yet under the FRA. The Elephant Task Force in 2010 had categorically stated that “the Task Force is convinced that local people resident in the reserve area should be partners and allies for conservation and not be treated as adversaries.” This is in keeping with the provisions of the FRA cited above.
Tribals whom the Committee spoke to near the Mudumalai Reserve in Tamil Nadu spoke with a conviction that their eviction was a means for the Forest Department to reassert control over their land. This was a common refrain in places where the elephant corridor is seen as threatening to dispossess tribals. It was also a sign of a breakdown of trust between the tribals and the Forest Department which needs to be urgently addressed. Both the Tiger Reserve and Elephant Corridor cases demonstrate the deliberate circumvention of provisions of the PESA and the FRA by state governments. It also shows how tribals find themselves caught between conservationists and the forest bureaucracy.

Evictions: Letter dated May 3, 2002
The preamble of the FRA recognizes the rights of forest dwelling communities evicted from their lands at the hands of the state: “and whereas it has become necessary to address the long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to state development interventions”.
This recognition comes in light of a long history of arbitrary forced evictions of these communities. The colonization of forest land took place, first through the operation of the Indian Forest Act, by earmarking ‘reserved forests’, and thereafter evicting forest dwelling communities. Evictions have continued in the post-colonial phase, sometimes for “conservation” and at others for “scientific forestry”. In a letter dated 28th May 1990, the Commissioner for Scheduled Castes and Scheduled Tribes highlighted how state government orders which recognized the rights of tribal communities were being openly disregarded.
The MoEF in turn issued six circulars which also remained dead letter.
On 3rd May, 2002, the Inspector General of Forests (IGF) issued a letter to the Chief Secretaries of all States, directing State authorities to prepare a time bound program for summary eviction of all encroachments not eligible for regularization. This was supposedly in a follow up to a Supreme Court order in Godavarman Thirumulpad v. UOI dated 23rd November, 2001. What this court order actually did was merely restrain the Central government from regularizing encroachments in the country, without the court’s permission. The IGF’s letter was, in effect, a misinterpretation of this order of the court. What resulted was large scale forced evictions of tribal communities by the state. The scale is indicated in the figures below: In Bihar the area evicted appears to exceed the existing encroachments. The evictions have not been reversed, and in most places those evicted have not been able to access their rights under the FRA. This is a situation where restorative justice and reparation must be given to those wrongfully evicted.

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