Dr Javaid Rahi
On the occasion of ‘International Day of Forests’ held on 21st March 2022 , while addressing Forests Officers of Jammu and Kashmir, Lieutenant Governor , Manoj Sinha stressed upon the importance of ensuring the rights for livelihood on forest land to traditional forest dwellers who have been residing in the nature’s lap for generations, cautioning that such rights must not be infringed upon. He further said that the historic implementation of Forest Rights Act in the UT of J&K under the leadership of the Prime Minister Narendra Modi has benefitted a large population of our tribal brothers dependent on forests.
For the last one year the Forest Rights Act 2006 is actively under implementation in Jammu and Kashmir. It took 14 years’ long wait for the tribal and other forest dwellers to file their claims for recognition of their rights on the forest lands, though they have been the inhabitants of forests for centuries and are wholly and solely dependent on forests for livelihood.
As per the government data available, around 2300 claims have been settled by the authorities during the past few months, majority of them being community claims. As many as 23000 claims are pending before different committees including the Forest Rights Committee/ Gram Sabha/ Sub-Divisional Level Committee and District Level Committees.
During the awareness programmes at different places, it is mostly found that the FRA’s vision of implementation has not been followed on the ground in its true spirit.
By now, evacuation, Forest fencing, plantation without consent of Gram Sabha and violation of Forest Rights Act / Supreme Court decisions are the main issues being faced by Tribal and Other Forest Dwellers.
Evictions – is it Violations of SC order/FRA?
Forceful eviction of Tribal and other forest Dwellers from Forests are in violation of the provisions of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. It also goes against the Supreme Court order of February 2019, staying evictions of all forest dwellers from their lands in a case titled Wildlife First Vs. Union of India (35782/2019).
Under Section 4(5) of the FRA which is very specific and provides that ‘no member of a forest dwelling Scheduled Tribe or other traditional forest dwellers shall be evicted or removed from the forest land under his occupation till the recognition and verification procedure is completed’ in all respects. This clause is of an absolute nature and excludes all possibilities of eviction of forest dwelling Scheduled Tribes or other traditional forest dwellers without settlement of their forest rights.
The Section 4(1) of FRA is about recognizing and vesting forest rights on eligible forest dwellers. Therefore, under the said section, no eviction should take place till the process of recognition and vesting of forest rights under the Act is complete.
In conjunction with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013, FRA protects the tribal population from eviction without rehabilitation and re-settlement/ relocations of their habitats.
The Act further empowers ‘Gram Sabha’ to restrict any agency for any destructive practices, affecting the resources or cultural and natural heritage of the tribal.
Thus, the Act empowers the forest dwellers to access and use the forest resources in the manner that they were traditionally accustomed to, protect, conserve and manage forests, protect forest dwellers from unlawful evictions and also provides for basic development facilities for the community of forest dwellers to access facilities of education, health, nutrition, infrastructure etc.
Is eviction punishable?
The SC/ST (Prevention of Atrocities) Act, 1989 (Extended to J&K in 2019) protects the tribal people against eviction. The section 3(1)(g) of the law explicitly states that “[to] wrongfully dispossess a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interfere with the enjoyment of his rights, including ‘forest rights’ over any land or premises or water or irrigation facilities or destroy the crops or take away the produce there from” is an atrocity under the Act. Section 3(1)(f) also criminalises the “wrongful” transfer of land that is owned by or under the possession of an SC or ST, and such wrongful transfer includes through the fabrication of records.
Forest fencing is against FRA?
Evictions in the name of fencing or any sought of fencing that disturbs the forest dwellers contrary to the Forest Rights Act 2006. The legislation recognises forest people’s role in conservation and legally enshrines community forest rights, customary land rights and rights of indigenous communities to protect and manage forests.
The Gram Sabha is vested with the responsibility under section 4(e) and (f) to constitute Committees for the protection of Forests, wildlife, biodiversity etc from amongst its members, through fencing. In order to carry out the provisions of Section 5 of the Act, monitoring and controlling the committee constituted under clause (e) by Gram Sabha shall prepare a conservation and management plan for community forest resources in order to sustainably and equitably manage such community.
Further, the legislation recognises forest people’s role in conservation and legally enshrines community forest rights, customary land rights and rights of indigenous communities to protect and manage forests.
Fencing of Forests is underway and many incidents of carrying out forcible fencing/plantations in lands claimed under FRA without mandatory consent from Gram Sabha, negate the Act.
Is Gram Sabha Consolation mandatory?
As per FRA, the approval/ recommendation of Gram Sabha is essential for each activities that occur in respect of Forest land or resources located in its jurisdiction including managing forestlands, resources, Minor Forest Produces and protecting them.
It provides that no activity should be carried out in these forests until individual and community claims over the forest land have been settled. The Forest department and other officials are bound to take permission from the Forest Rights Committee/ Gram Sabha while entering the areas (under claim) where tribal are residing.
As per Article 6 of FRA the Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction.
The “Gram Sabha” is defined in FRA article 1 (g), constituting a village assembly consisting of all adult members of a village or a Panchayat or hamlet. It is the highly empowered body in the Forest Rights Act, enabling the tribal population to have a decisive say in the determination of rights of the tribal and other forest dwellers on the Forest land and resources.
The FRA clearly states that the Gram Sabha is the supreme body in deciding the claims under the legislation.
At a number of places it was observed that the Gram Sabha members and the officials of implementing agencies and public representatives are totally unaware about the powers and functions of Gram Sabha under FRA. They don’t know that in four-tier committees constituted to implement Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, In addition to above, the members of Gram Sabha also enjoy the rights to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use. Earlier these issues were addressed by the Forest Department. But now the officials of the department are not ready to recognise their protection, generation and preservation rights, thereby violating the Forest Rights Act.
Further, Gram Sabha recommendation is a pre-condition for any diversion of land or any clearance of developmental projects like schools, dispensaries, hospitals anganwadis, 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 sources of energy, skill up-gradation or vocational training centers, roads and community centers, etc.
(The author is a tribal researcher from J&K )
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