The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006: Complete Note

For over a century, Indian forest law treated the people who lived in forests as encroachers on State property. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (the Forest Rights Act, or FRA) reverses that assumption. It recognises and vests in forest dwellers the rights they have long exercised, over land, forest produce, community resources and habitat, and gives the Gram Sabha a central role in recognising those rights and in governing the forest. This note covers the purpose of the Act, the categories of beneficiaries and rights, the procedure for recognition, and the Act's relationship with forest conservation, wildlife protection and development projects.

1. Purpose of the Forest Rights Act

The preamble records that the forest rights on ancestral lands and habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers were not adequately recognised in the consolidation of State forests during the colonial period and after independence, resulting in a historical injustice to them, although they are integral to the very survival and sustainability of the forest ecosystem. It also records that the recognised rights include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance, thereby strengthening the conservation regime while ensuring livelihood and food security.

The Act therefore has three purposes: to correct a historical injustice by recognising rights; to secure tenure and livelihood; and to make forest dwellers partners in conservation. It was passed in December 2006 and came into force, with its Rules, on 31 December 2007. It is administered by the Ministry of Tribal Affairs, and its Rules were substantially amended in 2012.

2. Who Benefits: Forest-Dwelling Scheduled Tribes and Other Traditional Forest Dwellers

2.1 Forest-dwelling Scheduled Tribes

Forest dwelling Scheduled Tribes (Section 2(c)) means members or communities of the Scheduled Tribes who primarily reside in and depend on forests or forest lands for bona fide livelihood needs, and includes Scheduled Tribe pastoralist communities. The claimant must be a Scheduled Tribe in the area where the right is claimed.

2.2 Other traditional forest dwellers

Other traditional forest dwellers (Section 2(o)) means any member or community who has, for at least three generations prior to 13 December 2005, primarily resided in and depended on the forest or forest land for bona fide livelihood needs. A 'generation' means a period of twenty-five years, so the requirement is residence and dependence for seventy-five years. The Rules clarify that the claimant need not show that he personally resided for seventy-five years, only that the community did so and that he currently resides there.

The difference is significant: Scheduled Tribes must show residence and dependence as on the cut-off date of 13 December 2005, whereas other traditional forest dwellers must in addition show seventy-five years of residence and dependence.

3. The Forest Rights: Section 3

Section 3(1) lists the rights that are recognised. They fall into five groups.

3.1 Individual forest rights

The right to hold and live in the forest land under individual or common occupation for habitation or self-cultivation for livelihood (Section 3(1)(a)). Under Section 4(6) the land recognised is limited to the area actually under occupation, and in no case more than four hectares. Under Section 4(4) the right is heritable but not alienable or transferable, and is registered jointly in the names of both spouses where the holder is married. Rights also include conversion of pattas, leases or grants issued by governments into titles (Section 3(1)(g)), rights on disputed lands (Section 3(1)(f)), and in situ rehabilitation where people were illegally evicted from forest land before 13 December 2005 without compensation (Section 3(1)(m)).

3.2 Community forest rights

Community rights include: community rights such as nistar, by whatever name called, including those used in erstwhile princely States and zamindari regimes (Section 3(1)(b)); other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled and transhumant), and traditional seasonal resource access of nomadic or pastoralist communities (Section 3(1)(d)); rights for the settlement and conversion of forest villages and old habitations into revenue villages (Section 3(1)(h)); access to biodiversity and the community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity (Section 3(1)(k)); and any other traditional right customarily enjoyed (Section 3(1)(l)).

3.3 Community forest resource rights

The most transformative right is the right to protect, regenerate, conserve or manage any community forest resource which the community has been traditionally protecting and conserving for sustainable use (Section 3(1)(i)). A community forest resource (Section 2(a)) means customary common forest land within the traditional or customary boundaries of the village, or the seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as sanctuaries and national parks to which the community had traditional access. CFR rights convert the Gram Sabha from a user into a manager of the forest, with authority to prepare management plans and regulate access. Mendha Lekha in Gadchiroli, Maharashtra, one of the first villages to receive CFR rights (2009), later obtained the right to harvest and sell bamboo, previously a State monopoly.

3.4 Right to minor forest produce

Section 3(1)(c) recognises the right of ownership, access to collect, use and dispose of minor forest produce which has been traditionally collected within or outside village boundaries. Minor forest produce (Section 2(i)) includes all non-timber forest produce of plant origin, including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots and tubers. Bringing bamboo and tendu leaves within MFP ended State monopolies over two of the most valuable forest products, and the Rules allow free transport of MFP by the right holders.

3.5 Habitat rights and the rights of Particularly Vulnerable Tribal Groups

Section 3(1)(e) recognises rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities, now called Particularly Vulnerable Tribal Groups (PVTGs). Habitat (Section 2(h)) includes the area comprising the customary habitat and such other habitats in reserved forests and protected forests of PVTGs, pre-agricultural communities and other forest dwelling Scheduled Tribes. Habitat rights recognise not only land but the whole landscape used for livelihood, culture and religion. There are seventy-five PVTGs in India. The first habitat rights were recognised for the Baiga in Dindori district of Madhya Pradesh, followed by the Bharia of Patalkot.

3.6 Development facilities: Section 3(2)

Notwithstanding the Van (Sanrakshan Evam Samvardhan) Adhiniyam, the Central Government shall provide for diversion of forest land for thirteen categories of facilities managed by the Government, such as schools, dispensaries or hospitals, anganwadis, fair price shops, electric and telecommunication lines, tanks and minor water bodies, drinking water supply and pipelines, rainwater harvesting, minor irrigation canals, non-conventional energy sources, skill upgradation or vocational training centres, roads and community centres, provided the forest land is less than one hectare in each case, the felling of trees does not exceed seventy-five trees per hectare, and the proposal is recommended by the Gram Sabha.

4. Recognition and Vesting of Forest Rights

4.1 Section 4: recognition and vesting

Section 4(1) recognises and vests the forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers, notwithstanding anything contained in any other law. The rights are conferred subject to the condition that the claimant had occupied the forest land before 13 December 2005 (Section 4(3)). Section 4(5) provides that, save as otherwise provided, no member shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete. Rights are heritable but not alienable (Section 4(4)) and limited to four hectares for individual land (Section 4(6)).

4.2 The Gram Sabha under the Forest Rights Act

The Gram Sabha (Section 2(g)) is the village assembly consisting of all adult members of a village, with full and unrestricted participation of women; in States without Panchayats, it means the traditional village institutions. Under the Rules, the quorum is one-half of the members, of whom at least one-third must be women. It is the foundation of the FRA:

• It initiates the process of determining the nature and extent of rights (Section 6(1)).
• It constitutes a Forest Rights Committee to receive, verify and consolidate claims, and passes a resolution on them.
• It recommends diversion for the development facilities in Section 3(2).
• It gives or refuses free, informed consent to resettlement from critical wildlife habitats (Section 4(2)).
• Under Section 5, it and the right holders are empowered to protect wildlife, forests and biodiversity, adjoining catchment areas and water sources, and their habitat from destructive practices, and to regulate access to community forest resources.

4.3 The three-tier procedure: Section 6

1. Gram Sabha: receives claims through the Forest Rights Committee, verifies them on the ground, and passes a resolution recommending recognition, with a map.
2. Sub-Divisional Level Committee (SDLC): examines the Gram Sabha's resolution, prepares the record of forest rights, and forwards it to the District Level Committee. Any person aggrieved by the Gram Sabha's resolution may petition the SDLC within sixty days.
3. District Level Committee (DLC): considers and finally approves the record of rights. Any person aggrieved by the SDLC's decision may petition the DLC within sixty days. The DLC's decision on the record is final and binding.

A State Level Monitoring Committee monitors the process. Each committee includes officials of the revenue, forest and tribal affairs departments and members of Panchayati Raj institutions, including Scheduled Tribe and women members. The Rules require that no claim be rejected without giving the claimant a reasonable opportunity of being heard and reasons in writing, and that evidence such as government records, physical attributes, statements of elders and traditional structures be considered.

4.4 Evidence and the burden on claimants

Rule 13 lists the kinds of evidence that may be relied upon, including public documents and government records, research studies and gazetteers, quasi-judicial and judicial records, physical attributes such as houses and permanent improvements, and statements of elders. The Act does not insist on any single form of proof, recognising that forest dwellers rarely hold documents. In practice, large numbers of claims were rejected by State authorities, often without proper reasons, which has led to reviews and to litigation.

5. Forest Conservation and Forest-Dweller Rights

The FRA and the conservation laws reflect two different philosophies: the conservation laws originally treated people as a threat to forests; the FRA treats them as their natural guardians. The Act seeks to reconcile the two by coupling rights with duties (Section 5), by making the Gram Sabha a manager of community forest resources, and by special provisions for critical wildlife habitats.

5.1 Forest diversion and FRA compliance; development projects and forest rights

Because the FRA vests rights 'notwithstanding anything contained in any other law', forest land over which rights exist cannot simply be diverted for a project. In July 2009 the Ministry of Environment and Forests issued a circular requiring, before forest clearance, a certificate from the State that the process of recognising rights under the FRA had been completed, and the consent of the concerned Gram Sabhas to the diversion. Later rules under the forest conservation law moved the requirement of FRA compliance to the stage before the final order of diversion by the State, rather than before in-principle approval, a change criticised as reducing the Gram Sabha's leverage.

5.2 Relocation from protected areas

Protected areas are often inhabited. The FRA controls relocation through Section 4(2). Rights in critical wildlife habitats of national parks and sanctuaries may be modified or the holders resettled only if all of the following conditions are met:

1. the process of recognition and vesting of rights is complete;
2. the concerned agencies have established, after open consultation with an independent ecological and social scientist familiar with the area, that the activities or presence of right holders is sufficient to cause irreversible damage and threaten the existence of the species and their habitat;
3. the State Government has concluded that other reasonable options, such as co-existence, are not available;
4. a resettlement or alternative package has been prepared that provides a secure livelihood and meets the requirements of the national rehabilitation policy;
5. the free informed consent of the Gram Sabhas in writing has been obtained; and
6. no resettlement takes place until the facilities and land allocation at the resettlement site are complete.

Critical wildlife habitats so notified cannot later be diverted for non-forest purposes. The Wild Life (Protection) Act similarly provides, for tiger reserves, that relocation must be voluntary, based on informed consent and a fair package (Section 38V(5)), and that core or critical tiger habitats are to be established on the basis of scientific evidence.

5.3 The Forest Rights Act and wildlife protection

The FRA and the Wild Life (Protection) Act must be read together. The FRA applies in sanctuaries and national parks, where CFR rights may be recognised, but rights in critical wildlife habitats may be modified or relocated under Section 4(2). The FRA's duties clause (Section 5) empowers communities to protect wildlife against destructive practices, including by outsiders and industry. Studies of community-managed forests, such as those in the Biligiri Rangaswamy Temple Tiger Reserve in Karnataka, where the Soliga community holds CFR rights, are often cited to show that recognised rights and wildlife conservation can co-exist.

6. Offences, Overriding Effect and Implementation

Under Section 7, any authority or committee, or officer or member, that contravenes the Act or the Rules concerning recognition of rights is punishable with a fine of up to one thousand rupees, a provision widely seen as too weak to ensure compliance. Under Section 13, the provisions of the Act are in addition to and not in derogation of the provisions of any other law, except as otherwise provided.

Implementation has been uneven. Individual rights have been recognised more readily than community and CFR rights; rejection rates have been high in several States; forest departments have sometimes resisted recognition; and the Act's interaction with the forest conservation rules, with compensatory afforestation on lands used by communities, and with protected area management continues to generate conflict.

7. Critical Appraisal

The FRA is one of the most significant land and resource reforms in independent India. It recognises that conservation cannot succeed against the people who live in forests, and it offers a model of community governance through the Gram Sabha. Its critics fear that it encourages encroachment and fragments habitats. Its supporters point out that it recognises only pre-2005 occupation and caps individual holdings, and that the greater threat to forests has come from mining and infrastructure diversions. The Act's promise depends on fair adjudication of claims, the recognition of community and CFR rights, and respect for the Gram Sabha's voice in decisions to divert forest land.

8. Related Topics and Provisions