Governance Mechanisms in the Forest Rights Act 2006: A Review

By Amrita Chekkutty and Suraj Jacob

The Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, popularly known as Forest Rights Act (FRA), was enacted by the Indian Parliament during the first United Progressive Alliance (UPA) government as a landmark legislation to ensure a fair deal for the tribal population in the country. It was a legislation long demanded by tribal organisations, social activists and scholars to ensure justice to the tribes and other forest-dwellers who had faced centuries of injustice as their traditional dwelling places were converted to government-controlled forest areas denying them their traditional rights. This practice started during British rule continued to be in force even during the decades after independence, making the tribal population encroachers in their own traditional lands.

It was with a view to correct these historical injustices that the government undertook the legislation that sought to empower the tribal people. However, it is necessary to undertake a systematic study and analysis of the actual ground-level implementation of the Act, the legal and administrative problems encountered during its implementation and related matters. This article examines the governance structure built around the FRA, based on a review of the concerned Act, and the rules framed thereunder. It also examines the responsibilities of each authority created at various levels and highlights key problems in the implementation, based on experiences in the state of Kerala.

1. Governance structure

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) is a Central legislation, enacted by Parliament in December 2006. To understand the implementation structure, it is important to identify the various stakeholders at different levels. See Figure 1.

Figure 1. FRA Implementation Structure

Note: Drawn using material from FR Act and Rule

1.1      Central level
At the Central Government level, the Ministry of Tribal Affairs (MoTA) is the nodal agency for the implementation of the Act. The rule-making powers are vested with the Central Government and not the state governments.¹ Apart from the Rules, in 2012 the MoTA also issued a set of guidelines for compliance, so as to ensure effective implementation of the Act. Most of the points raised in the 2012 guidelines were incorporated in the 2012 amended Rules.

In 2018, the Ministry of Environment, Forests & Climate Change (MoEF&CC), as envisaged under section 2(b) of FRA, published guidelines for notification of Critical Wildlife Habitat within National Parks and Sanctuaries.²  In addition to the Rules and guidelines, the MoTA has also issued several directions and clarifications on various topics such as implementation of FRA 2006, rejected claims under FRA, implementation of FRA in Protected Areas, minor forest produce, Community and Community Resource Rights, Conversion of Forest villages into Revenue villages, Municipal Areas and Forest Rights Act, Record of Rights and other issues.³

Section 12 of the FRA specifically states that all the authorities mentioned under the Act such as the SDLC, DLC, nodal agencies etc., are subject to the directions issued by the Central Government. This provision might be included to overcome the implementation gaps and to ensure uniform implementation in all states. It is also to be noted that another Central Act, the Panchayats (Extension to the Scheduled Areas) Act (PESA) 1996, is a kindred Act which has to be harmoniously constructed with the FRA.⁴ Section 13 of the FRA clearly states that the Act supports an arrangement where pre-existing community rights of non-STs or ineligible OTFDs (Other Traditional Forest Dwellers) in Fifth Schedule areas governed by PESA, shall continue.⁵

1.2      State and district levels
State governments can issue executive orders and notifications for the implementation of the FRA to the departments as well as the committees that are involved in the implementation process. State governments are responsible to constitute three committees: the State Level Monitoring Committee, the District Level Committee, and the Sub-Divisional Level Committee (refer Figure 1).⁶  The guidelines issued by the Ministry also state that the state governments should ensure that the forest rights relating to Minor Forest Produce (MFP) under section 3(1)(c) of the Act are recognized in respect of all MFPs and that state policies are brought in alignment with the provisions of the Act. Though the FRA does not empower the state government to make any Acts/Rules; it has to be noted that the FRA recognises certain pre-existing rights provided under state laws.⁷

The State Level Monitoring Committee (SLMC) is constituted with the Chief Secretary, secretaries of the departments of Revenue, Tribal, Social Welfare, Forests and Panchayat Raj; the Principal Chief Conservator of Forests, members of the Tribes Advisory Council or three ST members recommended by the State Government in the absence of the Council, and the Commissioner of Tribal Welfare.⁸ The SLMC acts as a monitoring agency for the vesting of Forest Rights in the state.⁹ It is also vested with the power to proceed against any authority which contravenes the provisions of the Act.

The members of the District Level Committee (DLC) consist of the District Collector, Divisional Forest Officer or Deputy Conservator of Forests, three members of District Panchayat nominated by the District Panchayat and an officer of Tribal Welfare/Tribal Affairs department in charge of the district. In case of municipal areas (not falling under Schedule Six of the Constitution), three members of District Panchayat, are replaced with three members from Town Panchayat/ Municipal Councils/ Municipal Corporations to be nominated by the municipalities in the district.¹⁰  This is the final authority to approve the claims regarding forest rights.¹¹

The Sub-Divisional Level Committee (SDLC) is headed by a Sub-Divisional Officer, Forest Officer in charge of the sub-division, three members of block/tehsil level panchayat nominated by the District Panchayat and an officer of the Tribal Welfare/Tribal Affairs department in charge of the sub-division.  In case of municipal areas (not falling under schedule six of the Constitution), the three members of Panchayati Raj institutions are to be replaced with three members nominated by municipalities in the sub-division.¹² The SDLC is the first appellate authority and the authority to oversee Gram Sabhas with respect to the implementation of the Act.¹³

1.3      Village level
The Act stipulates that the Gram Sabhas have the authority to initiate the process of vesting of forest rights on the beneficiaries of the Act. The Forest Rights Committee (FRC), consisting of a minimum 10 and a maximum of 15 members, is elected from Gram Sabhas in order to assist a Gram Sabha in the process of vesting the rights. In the case of low-density population areas,  the definition of ‘village’ provided under the provisions of the ‘Panchayats (Extension to the Scheduled Areas) Act, 1996’ (PESA) can be adopted,¹⁴ which permits the formation of a Gram Sabha for a ‘habitation or a group of habitations or a hamlet or a group of hamlets’.¹⁵ Thus, a cluster of villages can come together for the formation of a Gram Sabha and subsequent formation of FRC. Once CFR is granted to the community, the Gram Sabha is the central authority to decide on the conservation and protection of forests.  Under the Gram Sabha, necessary committees (refer to Figure 1) have to be formed and those committees have to work with the Forest Department to integrate their conservation/management plans with the micro plans or working plans or management plans of the Forest Department. The committees have the power to bring about any modification which is considered necessary in the above-stated plans of the Forest Department. The FAQ published by the MoTA also clearly states, ‘Any other committee mentioned in any other law cannot qualify to usurp this power which is vested with the Committee under Rule 4 (1) (e).’¹⁶

2. How it works

The Gram Sabha calls for the submission of claims and authorizes the FRC to receive the same. The Committee visits the site and physically verifies the claims with reference to the evidence. It prepares a map earmarking the claimed area. Its findings are recorded and submitted to the Gram Sabhas.

Figure 2. FRA rights vesting process

Note: Drawn using material from the FR Act and Rules

The Gram Sabha passes a resolution and forwards it to the SDLC, which collates the maps and resolutions and ascertains the veracity of the claims by examining maps and resolutions. The SDLC is responsible for the block/ tehsil level draft record of proposed forest rights and the same has to be forwarded to the DLC which is the final authority to approve the claims and record of the forest rights prepared by the SDLC. However, the SDLC and DLC are vested with the powers to remand the resolution to the Gram Sabha for reconsideration in case the resolution/recommendation is found to be prima facie incomplete.¹⁷ The DLC issues directions for recording the rights in appropriate government records and publishing the same. The DLC is also responsible for supplying the certified copy of the record of claims and title to the claimant as well as to the Gram Sabhas. Figure 2 provides details.

2.1 The appeals process
The SDLC acts as the first appellate authority; it adjudicates disputes between Gram Sabhas and also the petitions filed against the resolution passed by Gram Sabhas. Those who are aggrieved by the order of the SDLC can appeal to the DLC.

The law courts have jurisdiction only in cases where any of the authorities contravene the provisions of the Act and if the SLMC fails to proceed against the authority. From Sections 7 and 8 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, it appears that the High Court and Supreme Court can be moved only under Article 226 and 32 respectively¹⁸ for issuing necessary Writs (such as Mandamus to direct a public official or government department to take an action). The Constitutional validity of the Act is under challenge in the Supreme Court of India.¹⁹

2.2      National Green Tribunal
The National Green Tribunal (NGT) was established in 2010, under the National Green Tribunal Act 2010 (NGT Act). It was established to find fast-track redressal in cases related to the environment arising out of the implementation of laws listed in Schedule 1 of the Act and FRA is not one of the legislations listed therein.²⁰  However, the NGT deals with issues related to the FRA if they fall within the ambit of the questions the NGT is empowered to deal with.  Most of the cases regarding the FRA that come to NGT are related to the issue of forest clearances under the Forest Conservation Act. In future, the NGT may have to take on more powers regarding the implementation of the FRA as there is a void in the legal system when it comes to its implementation.

2.3      Other provisions
The Constitution of India has provisions related to administration and control of Scheduled Areas and Scheduled Tribes. As per Part C of the Fifth Schedule, it is provided that the President may by order declare the Scheduled Areas. The Constitution does not as such provide any criteria for declaration of Scheduled Areas. The Dhebar Commission (1960-61) had laid down the following criteria for declaring an area as Scheduled Area.²¹ The tribal population should not be less than 50% of the total population, and the area should be of reasonable size and should be economically backward. The criteria were revised recently to add viable administrative entities such as a district, block or taluk.²² Once the area is included in the Fifth Schedule, there are special provisions applicable to that area as enumerated below:

1. Establishment of the Tribes Advisory Council to advise on matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor.
2. The Governor can notify that any particular Central or State Act shall/shall not apply to a Scheduled Area with such exceptions and modifications as the Governor may specify in the notification. It can also have a retrospective effect.

Such provisions have significant legal relevance in ensuring tribal rights. For instance, recently, the Governor of Maharashtra, by way of using the above-stated provision (sub-paragraph (1) of paragraph 5) issued a notification,²³ creating a new authority above the District Level Committee, namely Divisional Level Committee to appeal against the decisions of the District Level Committee.²⁴ This notification was issued taking into account the fact that a large number of applications under FRA relating to record of rights were being rejected by the District Level Committee. The Governor of Maharashtra could fix the above problem by way of the notification, as the problem was adversely affecting tribals in the Scheduled Areas in the State.

In Kerala, there are no Scheduled Areas, a situation which causes severe difficulties for the tribal people in realising their legitimate rights.  On the lines of Maharashtra, had the tribal areas in Kerala been brought under the Fifth Schedule, the landmark legislation PESA would have been applicable in those regions, potentially creating substantial improvement on the situation of tribals in the state. Though there was a move in 2016 to bring the tribal majority areas of Wayanad, Palakkad, Kannur, Malappuram and Idukki²⁵ districts under the provisions of the Fifth Schedule of the Constitution, it was not followed up.²⁷ The above example from Maharashtra shows how the existing provisions could be used for better implementation of the FRA removing the lacunae. It is an important lesson learnt for better implementation, making use of the existing provisions rather than creating new ones.

3. FRA implementation: A reality check²⁸

This section examines the actual implementation process as evidenced by interviews conducted in the tribal regions of Kerala. The interviews were conducted with FRC members in the tribal blocks of Wayanad and Thrissur districts during the months of June and July 2020. The blocks covered are: Ollukara, Chalakkudi (Thrissur district), Kalpetta, Kappiset, Kattikulam, Panamaram, Sulthan Bathery and Vythiri (Wayanad district). Owing to the restrictions imposed by COVID-19 protocols, around two dozen interviews were conducted through phone calls.

The FRA envisages a bottom-up approach and has vested critical powers to the Gram Sabha and has envisaged the creation of FRC to assist the Gram Sabha in the process of vesting of the rights. The formation of the FRC under the FRA is envisaged as follows: Gram Sabhas will be convened by the Gram Panchayat and in its first meeting, the FRC shall be elected from amongst its members. However, experiences in the field give a different picture.

It was pointed out that the Tribal Promoter/Tribal Extension Officer (TEO) was the person who took the lead to convene the ooru kootam (Gram Sabha) instead of the Gram Panchayat. But none of the respondents stated that the FRC members were nominated by the Promoter/TEO. The ooru kootam themselves decided on the members in the FRC. Most FRCs had two or three hamlets (oorus) under them. All the FRC members said that they had female participation in the committees. There were three to four female members in all the FRCs, and in some FRCs women held the position of FRC secretary/president. However, most of the members were in the Committee only for the sake of it. There were a multitude of committees, such as Vana Samrakshana Samiti (VSS) and Integrated Child Development Services (ICDS) etc., and the members who featured in one committee automatically got selected for every other committee. This entailed lack of awareness on the part of the members about the Act and why they were chosen to be on the committees. The result was that members were confused regarding the number of committees they were in and their actual roles. These are the kind of bureaucratic institutions which claimed that their operations were ‘participatory’ and ‘inclusive’. In practice, the committees like the VSS offer nothing more than ‘integration’ where the people from the community are integrated into some activities that are designed and decided by the state or the bureaucracy.²⁹ Though the FRC was envisaged truly in a participatory model with extensive powers, the lack of awareness among its members has rendered these ineffectual, which is the fate of most other committees. Often, it is there only as a proof that the committee had been formed as mandated by the Act. Interestingly, this is one of the parameters the bureaucracy would apply to assess the level of implementation and possibly why there was a hasty formation of FRCs.

The FRC is expected to assist Gram Sabhas to receive, acknowledge and retain the claims in the specified form and evidence in support of such claims, prepare the record of claims and evidence including maps, prepare a list of claimants on forest rights, verify claims by visiting the site and physically verifying the nature and extent of the claim and evidence on the site, receive further evidence from the claimant and witnesses, etc. However, most of the FRC members interviewed did not know about any of the processes and their duties as FRC members. When asked about who applied for Individual Forest Rights (IFR) and how the list was made, they could not answer it. Many FRC members stated that they had approached a social worker/party worker/educated community member who helped them in filling up their claim forms and proceed with the process. In some cases, it was the promoter/TEO who helped to file the IFR claims.

In some interviews, it was even mentioned that the tribals, by hearsay, came over and told the ooru moopan(the chief) to add their names on the lists for receiving the IFR titles. An incident narrated by an NGO worker gives an alarming signal about how the entire process was ignored and the spirit of the Act was defeated. According to him, a meeting was called by the TEO at a school and the members of the community were handed over forms fill for receiving titles of the land they possessed. The community members did not even know under which Act/scheme the land was being vested to them, thus, concealing the most significant aspect of the law, CFR/CR. Though there are several examples of flawed implementation, there is not even a single testimonial regarding an orderly implementation process as stipulated by the Act.

Only one FRC member had some idea regarding the processes of the Act and he stated that they convened a committee and did extensive fieldwork. However, the committee did not check the proof, instead, it compiled the documents and submitted them to the Tribal Department which, in turn, checked the proof. However, the Tribal Department had consulted the FRC whether the claimants were eligible for IFR (whether their claims were bogus). It was mentioned that the Tribal Department decided whether the claim should be dismissed or not in FRA ooru kootam meeting. It was also admitted in most cases that the FRC members had not even seen the Gram Sabha minutes.

During the verification process, the FRC requests the officials of the Forest and Revenue departments to remain present on the site as they have to sign the proceedings giving their designation, date and comments, if any. It is further mentioned that no committee other than the Gram Sabha or the FRC shall be empowered to receive, reject, modify, or decide any claims on forest rights. But in reality, the officials who came from Trivandrum (the state capital) were responsible for the measurement of the land. Apparently, the survey was undertaken in association with the Bhoomi Keralam project. Some mentioned that the FRC members (not everyone, only a few), officials from forest and revenue departments were present during the process. In an informal account, an official stated that to include the tribals in the survey process, they were employed as daily-wage staff.  This is a poignant testimony regarding how the participatory approach was hollowed out. The unavailability of sufficient survey personnel also presented substantial implementation difficulties.³⁰ The respondents stated that many applicants failed to receive IFR and/or received less land because their lands were not surveyed and/or due to defective surveys.

In the case of CR/CFR, the FRC is supposed to prepare the claims on behalf of the Gram Sabha in Form B and C. In these cases, the FRC has the authority to delineate the customary boundaries of the community forest resource in consultation with the other members of the Gram Sabha, including elders who are well versed with such boundaries and customary access and prepare a community forest resource map with recognizable landmarks through substantial evidence. The Gram Sabha meetings are held with prior notice. The FRC is supposed to present its findings on the nature and extent of the claims before the Gram Sabha for its consideration. The Gram Sabha passes appropriate resolutions and forwards these to the SDLC. Every claim received has to be duly acknowledged in writing by the FRC. But the reality on the ground is far from this.

The FRCs in most places are redundant after the receipt of IFR. The CFR/CR claims are not even in the picture in many places except for the spaces for burial. The areas for burial were earmarked, but in many cases, these had no formal title.  Another interesting factor was that in many cases the tribals stated that area was demarcated for them to carry out MFP (Minor Forest Produce) collection, fishing and grazing, etc, but much like the grant of space for burial, they did not hold any formal document for the same. It was pointed out by an NGO worker that compared to the other states in India there is less resistance on the part of the Forest Department in Kerala for the usage of forests by tribals for MFP collection and other allied activities. Perhaps it was in this context that some informal demarcation had taken place which the tribals mentioned as the CR/CFR rights without formal titles. In another narrative, an official noted that the CR/CFR does not have much scope in the context of Kerala because one of the major objectives while implementing the Act in Kerala was to provide land to the landless tribes. Thus, IFRs were granted mostly in the vested forests and not in reserved forests. When probed further regarding the processes followed, it was mentioned that the ooru kootam was called and the FRC was formed only in those areas, where according to them, forest land was eligible to be allotted under FRA. Only in those areas, the tribals were given an opportunity to submit the application for IFR titles. Thus, the definition of forest land in FRA was given no weightage.

The tribals were not aware of the existence of SDLC and DLC. These entities were mentioned in very few narratives. For most of the tribals, the Tribal Department was the state apparatus known to have authority on their claims. In the case of CR/CFR, it was stated that the mapping was completed in many cases. But the CR/CFR titles were not granted despite lapse of considerable time owing to many issues, such as the absence of committee members, lack of quorum in committee meetings, deliberate delaying on fears that the tribals would misuse the CR/CFR rights, etc. Evidence from the literature also points out that while issuing the legal titles (patta) to the forest-dwelling communities of Wayanad, the government made it very clear that it was a ‘provisional patta’. This happened due to delays in conducting meetings at the district and divisional levels for the issuing of pattas.{note] Sathyapalan, J. (2010). Implementation of the Forest Rights Act in the Western Ghats Region of Kerala. Economic and Political Weekly.[/note]

The delay in offering CR/CFR points to another major bottleneck to the conservation regime envisaged under the Act. The Gram Sabha, with the formation of necessary committees under it, has to undertake the conservation of such areas in which the titles were issued. However, when the entire exercise is reduced to the IFR process, the conservation regime is nowhere featured.

It is clear from the interviews that the FRC played a very limited role in assisting the Gram Sabha in securing the rights under FRA. The makers of the Act had placed less reliance on the state apparatus. In all the narratives, it was quite clear how the participatory approach envisaged in the Act had been hijacked and a paternalistic approach enforced by the Tribal Department in its implementation.  In this context, note that the SLMC formed in Kerala had set a target date, April 30, 2009, for the completion of the implementation process under the FRA.³¹ This might be one factor why the bureaucracy chose the fast-track approach in IFR titles grant, thus, reducing the entire Act as synonymous to IFR undermining several other empowering provisions in the Act.

To conclude, it appears the process of implementation of the FR Act in Kerala has many serious lapses, which could actually defeat the purpose of the original Act. One fundamental problem is the abysmal level of awareness about the Act, rights and processes among the beneficiaries as well as among the officials. Another problem is the burden of workload, as the state nodal agency is invested with the implementation of several other schemes for the Scheduled Tribe and Scheduled Caste communities; it being the welfare department for them. Hence, we encounter serious practical problems which dilute the implementation of the Act. The present scenario leaves a few pertinent questions: Why does the FRA get diluted to a mere recognition of the rights of habitat and agricultural lands? Is there a conspiracy to validate the conservationists’ apprehensions?

By keeping the tribals from enjoying the real essence of the Act, the historic injustice meted out to them is not remedied in any way. Although Kerala has secured a place among the states with considerable success in the implementation of the FRA, is it not high time to re-evaluate our indicators measuring its impact? It is possible that these issues could really be manifestations of problems of a different dimension – of a policy design which almost missed the context and the original objectives.

AUTHORS

Amrita Chekkutty is a lawyer turned public policy researcher associated with the FRA project of the Azim Premji Foundation. Earlier, she was with the Institute of Management in Government, Trivandrum, as Research Associate.

Suraj Jacob, faculty, Azim Premji University.