On 29th December 2006, an Act of Parliament, a path-breaking legislation, has received the assent of the President of India that acknowledges the injustice meted out to India’s forest dwellers, particularly tribes. The act is “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” popularly known as Forest Right Act, 2006. In the preamble of the law it was claimed that the act recognised the customary and historical rights of scheduled and non-scheduled tribe communities, who have been residing in forests in India but whose rights couldn’t be recorded earlier and undo the “Historical Injustice” done to the tribes and forest dwellers since pre-independence. FRA recognised that jungle dwellers have equal rights in the forests to the flora and fauna and they are an important and integral part of forests. The provision that was enshrined in FRA recognised that forest inhabitants would be involved in sustainable development, conservation of biodiversity and maintenance of the ecological balance, as they have a vast habitual knowledge on this. In that way, not only the rights were given to customary forest dwellers for usage of forest resources but also for its management and governance.
A Legislation, to be a successful one, requires other acts governing the similar subject and the spirit of state during implementation. It this case, neither has been witnessed. To understand the problem better, we have to go back decades ago. The Forest policy of 1952 maintained that for the conservation and protection of forests, it was important to control the exploitation of the minor forest produce. When the Forest (Conservation) Act 1980 was brought into action, situation got worse. It took all the forest lands under the control of the Union Government and still allowed the old colonial acts to play their parts in the name of good and development. It put the aborigines at the mercy of the bureaucratic system. Human residents of the jungle for centuries were not allowed to graze inside forest and allowed to collect even minor forest produce against high value permits. All their agricultural lands came under the forest, which was allocated before, now called off overnight. Along with those pro-colonial bureaucratic legislations, in the name of conservation, the commercialisation of forest made the situation even worse. Where they managed to live on minor forest produce paying high permit fees, were under tremendous exploitation by forest department bureaucracy and local forest contractors. Forest guards had a cut in minor forest products and the nexus of contractors and high ranked forest officers forced them to work for free, exploiting their illiteracy and poor economic condition. The Wildlife Protection Act, 1972, was amended in the year 1999 and restricted the rights of the Natives in Wildlife Sanctuaries and National Parks, even further. Since the tribes were being exploited from all the sectors, it brought the indigenous together and a social movement uniting the tribes initiated, voicing their discontent with the present system.
In an affidavit to the apex court in Jun 2004, Government of India, admitted to the historical injustice that have been levied upon tribes and cohabitants of the woods of the subcontinent started by WPA, 1972 followed by FCA, 1980 was in the name of environmental protection, as these acts were at loggerheads vis a vis recognising the rights of the tribes, an immediate need to address to the situation has arisen. Latter 2004 the National Advisory Council ultimately decided to find a solution to this problem once and for all. After discussing with the Ministry of Environment and Forestry and various Tribal Activist Groups, it was decided that a new legislation was needed to be formulated to recognise and protect the rights of Scheduled tribes and other traditional forest dwellers. With the enactment of FRA 2006, a radical shift of power and governance of the forest took place. FRA recognised the “citizens” of the jungle as an essential part in the conservation of forests. The locals of forest started taking part in decision making process, more and more, in regard to conservation of forest and they have been given access to forest resources to live on. A process of sustainable development started.
Meanwhile, some other developments occurred. The FCA 1980 stipulated that forest lands could only be used for “non-forest” purposes like cultivation of tea, coffee, spices, rubber, palms, oilbearing plants, horticultural crops, medicinal plants or any purpose other than reforestation, against a compensatory afforestation of any other “non-forest” area. It deterred forest diversion by putting a compensation value on forest resources calculated for a period of 50 years on the basis of the net present value of the diverted forest with cost of afforestation added to it. A Compensatory Afforestation fund Management and Planning Authority (CAMPA) was, therefore, constituted in 2004 by a direction of apex court dated October 30, 2002. The ad-hoc CAMPA became operational when Supreme Court intervened in this matter again in 2006. The purpose of the CAMPA was to create a fund where all the payments received towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation and net present value of the diverted forest land will be deposited. The net present value is the amount that someone has to pay for diverting forest land for non-forest purposes. The amount was to be determined by an expert committee appointed by the Centre and the CAMPA was to manage and utilise the same. It also directed that all the funds deposited on behalf of the CAMPA to other departments/state governments would be transferred to the account managed by the authority. But soon after the purpose of the CAMPA failed to perform. In the CAG report 2013, it was found that only 61% of the fund released by the CAMPA to authorities, had been utilised and in over a year the fund reached to 41,000 crores and kept in nationalised banks in the absence of a formal institutional arrangement. This led to the formulation of Compensatory Afforestation Fund Bill 2015 and has been ultimately passed in upper houses of parliament in July 28, 2016.
With the implementation of the CAF 2015, again the recognition of rights of tribes and other traditional forest dwellers have been challenged. It was important to unlock this fund through proper institutional mechanism so that the funds could be routed back to the people, with whom forest rights were vested by the Parliament. But unfortunately, in the recently passed CAF bill, funds are being vested with forest bureaucracy in a way that it gives them absolute power to decide where and what kind of plantations will be done. On the other hand, the power vested with gram sabha for due consent in areas eligible for FRA has been conveniently bypassed. And here lies the problem. FRA shifted power out of the hands of the forest bureaucracy, and used a fair justice framework to give power back to the people on ground. Forest department registered its resistance to passage of FRA Act in 2006. Since the conflict between control exercised by forest department and rights of the people on their forest resources, goes back to colonial times and is deep rooted, this development needs to be seen beyond the dichotomy of political parties i.e. the ruling party and the opposition. The forest bureaucracy despite passage of FRA act, through Forest Development Authority and with Joint forest management (JFM) schemes tried to ignore the existence of FRA. Forest Development Corporations continued with their business of trading in non-timber forest produce; transit passes were required for people to take out their non-timber forest produce as usual; and on top of business as usual there has been continuous non-cooperation approach followed by forest department in settling rights under FRA.
Now, with the enactment of CAF Bill 2015, the power is again being transferred to the forest bureaucracy, which was enjoying the overall control over forests of India and exploiting tribes and traditional forest dwellers since colonial era. Question is not only how CAF rules take due cognizance of rules under FRA Act and uphold the right of consent of gram sabha, but it is also time for necessary administrative reforms of the forest department. The government needs to see that over a period of time forest bureaucracy is oriented to acknowledge and appreciate that as public servants their role has to be subservient to requirement of gram sabha who governs the forest resources. Any lesser than this would be detrimental for implementation of both the acts, public resources and grassroots democracy.
And now the draft NPF (2018), where it has been formulated that to reverse the degradation of forest, rehabilitation is must and to be done without any compromise, is the new bureaucratic tool to demolish rights of traditional forest dwellers.
Fight hard.....
Collected from the wall of Dwaipayan Ghosh in Facebook
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