Re Evaluation of Forest Rights in India

Source : http://www.legalserviceindia.com
Author : Priyanka Chakraborty
Published on : November 16, 2016


  
Priyanka Chakraborty's Profile and details
LL.B (IP), IIT Kharagpur

Re Evaluation of Forest Rights In India

With the uprising ecological problems, a critical relation between society and environment is emerging which examines the relation of religion with environment.We are facing a global crisis today, not because of how ecosystems function but rather because of how our ethical systems function. Getting through the crisis requires understanding our impact on nature as precisely as possible, but even more, it requires understanding those ethical systems and using that understanding to reform them.

Religion blended with ‘vasudev kutumbakam’(the world is one family) can be a powerful tool for this planet. Part of the challenge of modern religions and the modern strategist is to reclaim their connection with the earth.

It was realized that if the established religions were mobilised in the cause of environment, it would be easier for the environment protection movement to achieve its goal of a green, sustainable future. The religion and conservation project is a facet of a larger interfaith dialogue going on today. While law may provide the requirements of a minimal ethic, the world's religions, through their new theologies, are establishing a maximal ethic as the goal to be achieved.

Religions affect person’s perception about the environment. Whether we are actively religious or not, religious belief permeates the very fabric of our existence. Namely, it influences if not directly shapes our legal systems; and therefore our constitutions; and therefore our nations' policy choices, both at home and abroad. Most of the religions talk about “Human Responsibility” for environmental protection. In biblical religion, religion and environment are integrally related. Natural world is a barometer to the relationship with God.

According to Lynn White, “Human ecology is deeply conditioned by beliefs about our nature and destiny that is, by religion” Again in the words of Swami Vivekananda, “Religion is the idea which is raising the brute unto man and man unto God.” Religion refers to both the personal practices related to faith as well as to the larger shared system of belief. Practicing the tenets of religions of the world, we can save this blue planet from annihilation. If we look at society from a historical perspective, we realize that protection and preservation of the environment has been integral to the cultural and religious ethos of most human communities. Ancient Hindus, Greeks, Native Americans and other religions around the world have venerated nature. Many saints say that love for one another (human brotherhood), love for all creation (biotic and abiotic) and love for oneself is religion. Religion is also a formal system of belief in God. Religious traditions teach us that the Earth is sacred, the fact that traditionally helps to exert control over how people interact with the natural world. Religions around the world have worshipped all forms of nature believing that it emanated the spirit of God and respect the fact that all things coexist in intricate and regulated harmony, which is also the basic postulate of Science and Reason.

The use of Religion as a tool for environment conservation is justified because:-
I. Firstly most lasting social change is anchored in a deep moral imperative.
II. Secondly values based rationales for protecting biodiversity are widely held and persuasive.
III. Thirdly religion humanizes and personalizes choices about environment and more importantly, understanding ethics backed by individuals’ religions will help us make better decisions on complex issues.

The fact remains that the vast majority of people in the world do not accept any ethics which does not have a religious foundation. This means in practical terms that if a religious figure, let us say, a mullah or a Brahmin in India or Pakistan, goes to a village and tells the villagers that from the point of view of the Shariat (Islamic law) or the Law of Manu (Hindu law) they are forbidden to cut this tree, many people would accept. But if some graduate from the University of Delhi or Karachi, who is a government official, comes and says, for rational reasons, philosophical and scientific reasons, that it is better not to cut this tree, few would heed his advice. So from a practical point of view the only ethics which can be acceptable to the vast majority, at the present moment in the history of the world, is still a religious ethics. The very strong prejudice against religious ethics in certain circles in the West which have now become concerned with the environmental crisis is itself one of the greatest impediments to the solution of the environmental crisis itself.

To suggest that any one religion somehow cares more for the Earth than the others would be foolish and simplistic, but within each belief system there lie subtle differences that, many argue, give an indication as to how we view our position in relation to it.

Different Religions and its Impact

The views of the religions, along with those of scientists, social scientists, and secular thinkers, are now very much front and center as the world attempts to solve its most pressing problems. Even if decision makers in governments and the private sector made the ‘green choice’ based on our ethical analysis, the environmental threat would continue to worsen due to the increase in the earth's population.

There is no religion which addresses multifaceted problems.

For example, Quran teaches that humans, as custodians of nature, were free to satisfy their own needs only with an eye to the welfare of all creation. Thus, humans must share natural resources and population pressure will dictate limits to consumption so that there can be equal access to resources by all. While fertility control is generally forbidden by the Quran, and the production of children encouraged, combining the Quranic teaching on nature and consumption with reproduction provides a way of suggesting that fertility control may be acceptable if seen as part of self-discipline required from humans to avoid upsetting the divinely created balance of nature.

In the Jewish tradition, the mystical thought of the Kabbalists “suggests that humans must learn to limit themselves--their rate of reproduction, their use of natural resources, and their production of fouling wastes.” As humans, we are to pattern our behavior after the example God gives in the creation of the world, “If God is omnipresent then, reasoned the Kabbalists, the only way God could create would be by an act of tsimtsum--of voluntary withdrawal or limitation to make room for creation.” Similarly, as humans we must withdraw or limit both our reproduction and our wants, so as to make room for coexistence with our environment in this and future generations. Therefore, we must change our behavior by cutting back on both our reproduction and consumption.

Christianity has a major responsibility for fostering much of the world's excessive consumption and overpopulation. Yet, within Christianity there are strong forces at work transforming Christianity into a self-critical force for justice, peace, and the maintenance of the integrity of nature. The ecology of the planet cannot be separated from population and social justice concerns when seen through Christian feminist theology. In this context, the traditional Christian opposition to fertility control is just beginning to be critically examined in relation to the looming crisis of overpopulation. Christian thinkers are recognizing that it is overconsumption by the developed Christian countries of the North that is both polluting the environment and depriving the developing countries of the South of the resources they need. It is the babies of well-off parents of the first world who pose the largest threat to the ecology, not the babies of the underdeveloped Asians, Africans, or Latin Americans.

While all religions have at least an implicit environmental ethic, Buddhism has focused on meditational techniques that do have the power to actually transform one's consumerism into something better--the middle way of Buddhism. Meditation practice allows one to actualize the central Buddhist teaching of the interconnectedness of everything in one's daily life. This doctrine has profound implications for one's response to the ecological challenge of our day. It means that our individualistic sense of identity is expanded, through meditation, until one experiences a connectedness to everything, and everything to us. Reality is composed of a web-like causality in which everything affects everything else in some way; everything (including humans, animals, plants, earth, air, and water) is interdependent.

There is close connections between the teachings in the Hindu epics and puranas on dharma (righteousness, duty, justice) and the ravaging of the earth. Hinduism appears to be a de facto supporter of renewable fuels, such is its adherence to sustaining the natural order of things. Hindus are instructed not to “use anything belonging to nature, such as oil, coal, or forest, at a greater rate than you can replenish it.”

Religion may be broadly defined as a “kind of cultural and/or linguistic framework or medium that shapes the entirety of life and thought.” It is what gives substance to culture, and culture is the totality of forms in which the basic concern of religion expresses itself. Religion describes the understanding of a transcendent reality that binds a community by “connect[ing] individuals to their community and to nature, to history, and to the cosmos.” “Religion,” as the term is used here, does not necessarily refer to anything traditionally metaphysical, theological or church-related. It is the cultural “overlay” that animates the spirit of a people; it is an over-arching ideology.

What is certain is that humans are at the centre of the environmental crisis – it is our activities that are unsustainable and damaging the environment – and that humans, for better or worse, are shaped in part by their religious convictions. And although humans are also shaped by economic, political, and social factors, religion has the potential, at least, to focus human concern and action beyond the self to serve a greater good. The preservation of an environment suitable for the flourishing of human and other life is such a good. The vast majority of people in the world live according to religion and religion is significant both in the understanding and in the solution of the environmental crisis.

Forest Rights

Forested landscapes of India have long been arenas of contestation, but this has especially been the case in the last couple of centuries. Ancestral lands and territories of Indigenous peoples and local communities were encroached upon by the state in the form of consolidation of state forests by the British government, during which the commons were enclosed and rights over community resources were curtailed or extinguished. Independence did not make much of a difference; the legacy of exclusion continued with even more alienating laws such as the Wild Life (Protection) Act 1972 and Forest Conservation Act 1980, which, despite laudable environmental objectives, advanced the process of consolidation and centralisation of forest governance and the process of rights deprivation. Estimates of eviction suggest that between 100,000 and 300,000 people have been evicted from protected areas at different times, and several million more deprived fully or partially of their sources of livelihood and survival. The National Forest Policy of 1988 and subsequent Joint Forest Management program, which were intended to address the issues of livelihoods and participatory forest management, have often ended up being instruments for extending the forest bureaucracy further into the commons and community life. Introduction of the neoliberal economic policies in the 1990s accelerated the rights deprivation process to an unprecedented level by focusing heavily on resource extraction and land-grabbing development projects that threatened (and continue to threaten) the existence of forest communities.

The response to the process of rights deprivation and political marginalisation lies in the movements of Indigenous peoples and local communities, often with the support of civil society organisations, who have fought appropriation of community resources by the political state and have tried to regain lost rights and ownership over commons and community regimes. It is in this historical context that the enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA) is understood as a legal and political instrument to undo the process of deprivation of forest communities by securing their rights over their ancestral lands, community forest resources, and customary territories.

Unfortunately, the potential of the FRA in securing livelihoods, enhancing forest conservation, strengthening local self-governance, and opening political space has hardly been met in the six years of its implementation.

The retroactive recognition of rights assigns forest land and forest resources on the basis of a claim to a particular political community, thereby redefining forest land that had been previously governed under regional variants of administrative stewardship.

Due to the technical challenges and political contests during drafting of the Act and the subsequent Rules for implementation, a number of dilutions, ambiguities and omissions make implementation highly contingent upon whether implementing agencies follow the spirit of the Act or seek to obstruct it or minimise its impact. Areas of dilution / ambiguity / omission may be summarised as:-

I. Limitations on the full identification of the rights deprived groups,
II. Adequacy and safeguards within the implementation procedures and its timetable,
III. The local institutional basis for the claims process, and
IV. Effectiveness of awareness raising for prospective claimants.

In terms of its ‘technical’ considerations, a key challenge in drafting the Act was to target a wide range of extremely complex and diverse local rights deprivations scenarios without either focussing too narrowly, thereby excluding legitimate groups, nor too broadly to include non-legitimate opportunists. In terms of the ‘political-economic’ aspects of drafting, there was however no consensus over the need for or aims of the Act. The final text is rather the outcome of contest between three main social forces that had greater or lesser influence during different periods of the long drawn process.

Even then, the FRA itself is undoubtedly a landmark legislation providing the legal framework for major pro-poor institutional reform in the governance of the country’s forests. Providing a remarkably comprehensive coverage of redressal of rights deprivations, the Act gives extensive provision for major reforms in tenure and forest governance. We can see from this case that pro-poor institutional reform is fundamentally important for improving the conditions of the marginalised, but it can only succeed through, and in conjunction with, ongoing concerted political organisation over the long term.

Orissa Mining Corporation Case-A Landmark Judgment

The Indigenous Dongria Kondhs’ initiative to save Niyamgiri, their sacred landscape, from a proposed mining project by a multinational company is arguably the most inspiring story of how the FRA can be a rights-based tool to effectively ensure protection of Indigenous peoples’ and local communities’ rights and strengthen community governance over natural resources.

The conflict between ‘rights’ and ‘development’ is vexing and it is seldom for the courts to able to resolve the said conflict leading to denial of the ‘rights’ in return of ‘development’. But the Apex court in the above noted case has endeavoured to resolve the said conflict between two by proposing that the decision that shall be taken upon ‘rights’ shall be relied upon for the decision on ‘development’. The Apex Court has acknowledged the importance of ‘rights’ and have asked the local community assembly ‘gram sabha’ to decide upon the same. The Apex Court has also taken a lenient and accommodating view with respect to industrial development and has observed that the rectification undertaken for the environmental violations shall also be consideration for deciding on the question relating to ‘development’.

The Apex Court in the this case issued directions to the State of Odisha to place the issues concerning the cultural and religious rights of the Dongaria Kondh Tribe before the Gram Sabha constituted under the Panchayat (Extension to Scheduled Areas) Act (PESA) for determination of the issue of cultural and religious 'rights' so as to provide decision for the consideration of Ministry of Environment and Forest (MoEF) for the final determination on the question of the grant of the approval to stage two of the forest clearance required to be ushered for Orissa Mining Corporation (OMC) and Sterlite Industry's Bauxite Mining Project at Niyamgiri Hills in state of Odisha.

Niyamgiri is a hill range of the Eastern Ghats, spanning about 250 square kilometres in the districts of Kalahandi, Rayagada, and Koraput of Odisha. Both culturally and ecologically, the Niyamgiri Hills are extremely rich and globally significant. It is inhabited by Dongria Kondhs, a vulnerable tribal group of the State and enjoys a critical and symbiotic relationship with the Niyamgiri forests, and believes that the hill belongs to Niyam Raja Penu, a deity they worship.

The bauxite mining project requires forest clearance in these hills which have been natural habitat of this tribe for years and shall also be having an adverse impact on the biodiversity and environment of the region which is religious shrine for them. The mining activity in the hills shall also interfere with their customary and traditional rights that been vested in them by virtue of custom and the Forest Act. This project on the other hand is also essential as it is supporting the Aluminium refinery Project of Sterlite Industries which has been largest manufacturer of Aluminium in the country.

The Apex Court relying upon the provisions of Forest Rights Act and PESA observed that Gram Sabha by virtue of the provisions of Forest Rights act and PESA are under an obligation to safeguard and preserve the customs, traditions, cultural identity, and community resources etc of Scheduled Tribe and Traditional Forest Dwellers.

The Apex Court took note of the provisions of PESA that had provided the extension of the Act to scheduled areas for preserving the traditional community assemblies like panchayats, gram sabha and had also provided Gram Sabha as holders of power so as to protect and safeguard the traditions and customs of the tribal community and preserve community mode of dispute resolution.

The Apex Court thus pronounced a landmark judgment wherein it not only upheld and recognised the rights of Schedule Tribe and traditional Forest dwellers that have often been marginalised in the wake of development projects but also recognised the importance of big infrastructure projects which not only provide platform for ‘development’ but also provide opportunities of employment and cannot be disregarded completely in view of ‘rights’.

OMC Impact

The Niyamgiri struggle established a precedence that can be used to guide democratic decision making regarding governance of forests and natural resources in India. It strengthened the legal application of the FRA for protection of rights over forests and habitats by asserting that recognition of the rights of communities over forests and habitats and of gram sabhas to provide or deny informed consent are statutory requirements under the FRA. However, significant barriers remain. According to a report shared by local organisations and activists, Dongria Kondhs from 36 villages have claimed community forest rights and habitat rights since enactment of the FRA. While the district administration has recognised forest rights in other areas, it has provided no responses to the claims in Niyamgiri. Local government officials have reportedly indicated that higher authorities in the government have instructed them not to consider and process community forest rights in the Niyamgiri area.

In a case relating to the diversion of forest land for mining in Niyamgiri, the Supreme Court of India delivered a landmark judgment on 18 April, 2013. The judgment upholds the customary and cultural rights of local communities over Niyamgiri in accordance with the Forest Rights Act, Panchayat (Extension to Scheduled Areas) Act, and provisions of the Constitution, and upholds the authority of the gram sabhas to protect and preserve the customary habitats and cultural rights. While it has given new impetus to the local community and gram sabhas to assert their rights under the FRA and Panchayat (Extension to Scheduled Areas) Act, concerns have been raised by the Ministry of Tribal Affairs and civil society organisations about improper implementation of the Supreme Court order by the state government.

Hurdles and Issues in Implementation of the Forest Rights Act

Implementation of the FRA is marked by a selective process that has excluded many of the important and empowering provisions of rights. There have been severe problems in the claims processed so far, the vast majority of which have been for individual plots of land. What is an even bigger issue is the abysmal status of community forest rights claims. Many or most reported community forest rights claims are to development projects allowed under the FRA (for example, roads, transmission lines, and health and educational centres) and not to the use and management of forest resources.

The diversity of community forest rights of Indigenous peoples and local communities, including rights over minor forest produce, customary forest and territories of particularly vulnerable tribal groups and pre-agricultural communities, traditional seasonal access of pastoralist and nomadic communities, rights of governance and management, community rights of access to biodiversity, intellectual property and traditional knowledge, and other customary and traditional rights, remain excluded. The claims of villages with a predominance of non-scheduled forest dwellers are also being denied or put on indefinite hold because state governments have decided to grant rights only to scheduled tribes or are insisting on proof of 3 generations (75 years) of occupation of the land, whereas the FRA simply requires proof of residence for this period.In many cases, due to lack of proper understanding of community rights and the FRA, government agencies have tried to deal with landscapes and forests accessed under community regimes as individual or private rights.

Implementation of the existing forest laws, policies, and programs without taking into account the FRA has effectively constrained assertion and exercise of forest rights at the grassroots level. Dominant political systems many a times limit the de facto rights enjoyed by communities. In several villages the area over which community forest rights have been recognised is much less than what the village has protected and had claimed.

Such a limited conceptualisation of the FRA is not going to help achieve the law’s broader objective of establishing rights of Indigenous peoples and local communities over forests and customary landscapes and community governance.

The predominant emphasis on individual forest rights in the implementation of the FRA has also led to its misuse in some parts of India, including in Andhra Pradesh, Maharashtra, and Assam, where political vested interests and livelihood desperation have combined to clear forests in the hope of getting individual titles.

What can be done to protect Forest Rights?

Even though the FRA, 2006 is considered as a comprehensive legislation, it has some major fall-outs. Although Section 13 FRA says it will be acting as predominance over other legislatures, but it leaves a space saying “not derogation to any law in force” which is open to debate and discussion. So the basic requirement is to form policy and implementation which will act as reinforcement to the FRA rather than contradicting to it. Convergence needs to be sought with existing complementary laws and programmes (such as the Panchayat Extension to Scheduled Areas Act, Mahatma Gandhi National Rural Employment Guarantee Act, and Watershed Development Programme) in order to further strengthen legal and policy provisions to ensure the realization of community rights and empowerment and just conservation in practice.

Apart from that, there are some few steps which can be implemented to overcome the hurdles and be effective legislation in granting community rights.

Those can be listed as:-
I. The Joint MoTA-MoEF Committee and the National Advisory Council have suggested the establishment of a national FRA council as a support and monitoring body for implementation of the FRA.
II. It is necessary to carry out massive legal awareness on the FRA.
III. There needs to be regular monitoring of forest land use.
IV. Monitoring and reporting process should include information on forest land use and diversion for various purposes, as well as compliance with the FRA.

A multidisciplinary approach should guide future institutional arrangements of forest management in order to ensure that social, cultural, environmental, and economic concerns and opportunities are adequately represented.

Conclusion
As we all know the fact that at the end, “the leaves of the trees are for the healing of the nations.” Almost all religions in the world preach that humans are stewards and they must take care of the environment, and thus environment can be saved by preaching from the religious perspective.

The glitches in OMC must be removed, for the lawyer in OMC discussed only over religious aspect, and environment protection came as a branch of it, which should be the other way round. A balance must be maintained between rights, religion and environment.

Development should be allowed, but at what cost, that must be scrutinized. Development has to take place at the cost of environment. In this regard, the traditional rights of the tribal communities are to be wisely balanced with the developmental activities so that a harmonious relationship is struck between the parties on utilisation of environment.

FRA is a welcome legislation for the tribal communities with traditional knowledge as recognition to their religious and cultural beliefs, and acknowledging their way of environment protection. Protection of environment through recognition of community rights backed by religious sanctions is a way of preserving community forests, contributing to the healing of centuries of wound inflicted on the environment.

End-Notes
# Religion and Environment, By Willis Jenkins and Christopher Key Chapple
# Worster, quoted by Glotfelty xxi
# Religion : A Saviour For Environment With Particular Emphasis On Hinduism, By Mrs. Nandita Verma
# All About: Religion and the environment, By Rachel Oliver
# Supra, 3
# Religion and the Environmental Crisis, By Seyyed Hossien Nasr
# Supra, 4
# Religious Responses To The Population Sustainability Problematic: Implications For Law, By Harold Coward
# Islam, Population and the Environment: A Textual and Juristic View, in Population, Consumption, and the Environment, By Nawal H. Ammar
# Introduction to Population, Consumption, and the Environment, By Harold Coward
# A Christian Response to the Population Apocalypse, in Population, Consumption, and the Environment, By Catherine Keller
# Buddhist Mediation 11 (1956), By Edward Conze
# One Tree is Equal to Ten Sons: A Hindu Response to the Problems of Ecology, Population, & Consumption, By Vasudha Narayanan
# The Nature Of Doctrine: Religion And Authority In A Post Liberal Age, By George A. Lindbeck
# The First Man and Company Man, By Timothy Fort
# Supra, 6
# This Fissured Land; An ecological history of India, By Guha, R and M. Gadgil
# Displacement and relocation of protected areas: A synthesis and analysis of case studies, By Lasgorceix A., and A. Kothari, 2009.
# Churning the Earth: The Making of Global India, By Shrivastava, A., and A. Kothari, 2012.
# Forest Rights and Conservation in India, By Tushar Dash, Ashish Kothari
# The Practice of Custom in India’s Recognition of Forest Right’s Act: Case Studies from Kalahandi, Odisha, By Matthew B. Shutzer
# India’s Forest Rights Act -The anatomy of a necessary but not sufficient institutional reform, By Madhu Sarin with Oliver Springate-Baginski
# Supra, 22
# Supra, 20
# http://www.lawsenate.com/case-studies
# Supra, 25
# http://www.cseindia.org/userfiles/Report on Niyamgiri.pdf.
# http://bichitrabiswal.blogspot.in/2011/10/article-onniyamgiri-and-fra-in.html
# http://judis.nic.in/supremecourt/imgs1.aspx?filename=40303
# http://tribal.gov.in/WriteReadData/CMS/Documents/201306070428075257247DirectiontoOdishaGovtl.pdf
# http://www.orissadiary.com/CurrentNews.asp?id=41484
# Vasundhara and Kalpavriksh, 2012.
# Supra, 20
# http://moef.nic.in/downloads/publicinformation/FRA COMMITTEE REPORT_FINAL Dec 2010.pdf
# For example, The 12th Five Year plan exercise that has recently been started by the Planning Commission needs to focus on the Forest Rights Act and the Panchayat Extension to Scheduled Areas Act.
# The Forest Rights Act: Redefining Biodiversity Conservation in India, By Tushar Dash