LEAD

Law
Environment and
Development
Journal

THE INDIAN FOREST RIGHTS ACT 2006: A CRITICAL APPRAISAL

Lovleen Bhullar

COMMENT

VOLUME
4/1
 LEAD Journal (Law, Environment and Development Journal)
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 COMMENT

THE INDIAN FOREST RIGHTS ACT 2006: A CRITICAL APPRAISAL

Lovleen Bhullar

This document can be cited as

Lovleen Bhullar, ‘The Indian Forest Rights Act 2006: A Critical Appraisal’,
4/1 Law, Environment and Development Journal (2008), p. 20,
available at http://www.lead-journal.org/content/08020.pdf

Lovleen Bhullar, B43, Herbal Hill Gardens, 9 Herbal Hill, London EC1R5XB
E-mail: [email protected]

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

TABLE OF CONTENTS

1. Introduction 22

2. Shift towards reform - Locating tribal rights in institutional responses 23

3. Key features of the Act 24

3.1 Expansion of the beneficiaries of the Act 25
3.2 Right to forest land 26
3.2.1 Area of forest land to be distributed 26
3.2.2 Cut-off date for recognition of the right 27
3.3 Other forest rights 28
3.4 Obligations under the Act 29
3.5 Relationship with existing laws 29

4. Procedure for vesting of forest rights 30

4.1 Primacy of the Gram Sabha – a move towards de-centralisation 30
4.2 Powers of the government-centric committees under the Act 31

5. Protection of core areas – establishment of critical wildlife habitats 31

6. Conclusion 34
 Law, Environment and Development Journal

1
the Gram Sabha (or the village council comprising
the assembly of all adult residents of a village) as the
primary centre of tribal governance. It also
recommended that the long-standing demand of
INTRODUCTION tribal control over productive land and forests
should be conceded to and administrative
Historically, the relationship between tribal interference in their affairs should be minimised.3
communities in India and forests was characterised Following this report, the Parliament passed the
by co-existence and these communities were Panchayats (Extension to the Scheduled Areas) Act
considered integral to the survival and sustainability 1996 (the ‘PESA’), which recognised the rights of
of the ecological system. This symbiotic relationship tribals to self-governance, but the actual
was acknowledged and crystallised as customary implementation of the PESA has been far from
rights over forest produce. But these rights were not satisfactory.
recognised and recorded by the government while
consolidating state forests during the colonial period However, in a recent shift in approach, the
as well as in independent India. 1 The resulting Parliament has enacted the Scheduled Tribes and
insecurity of tenure and the threat of eviction led to other Traditional Forest Dwellers (Recognition of
the alienation of tribal communities from their Forest Rights) Act 2006 (the ‘Act’) to ‘undo the
ancestral forest lands. This historical injustice was historical injustices’ suffered by tribal communities.4
perpetuated by the Wildlife (Protection) Act 1972 Not surprisingly, the enactment of the legislation
(the ‘WPA’) and the Forest Conservation Act 1980 was preceded by extensive debate and discussion,
(the ‘FCA’), which identified environmental which highlighted the tensions between social
protection and recognition of the rights of tribal activists and environmentalists and conservationists
communities as mutually irreconcilable objectives. on certain core issues. It is, therefore, important to
Other legislative and executive measures in the post- consider the reasons for the emergence of the Act
independence era continue to perpetuate these in the face of such divisiveness. We also need to
differences. consider the provisions of the Act to determine the
extent to which it has succeeded in striking a balance
In response to the resulting tribal agitations and between livelihood security and the conservation
unrest, the Ministry of Rural Development, goals. Unfortunately, a review of the legislation and
Government of India constituted a committee secondary literature indicates that the potential scope
headed by Mr. Dileep Singh Bhuria, a tribal Member and impact of the Act has been reduced.
of the Parliament, to make recommendations on the
salient features of the law for extending provisions This paper commences with an overview of the
of Part IXA of the Constitution of India traditional governmental responses to the plight of
(‘Panchayats’) to Scheduled Areas (which are tribal communities in India. It then lays out the
primarily tribal areas identified for special protection historical context for the Act and proceeds to discuss
in the Fifth Schedule of the Constitution).2 The the key provisions of the Act and their legislative
report of the Bhuria Committee, which was released history. As the Rules determining the procedure and
in 1995, inter alia argued for the legal recognition of implementation of the Act have been notified
recently, the paper also addresses them in the context
of certain specific provisions of the Act. The paper
1 Ministry of Tribal Affairs, ‘Note on the ‘Scheduled Tribes concludes with some observations in relation to the
(Recognition of Forest Rights) Bill, 2005’’, available at Act.
http://tribal.nic.in/bill.pdf.
2 ‘Report of MPs and Experts – To Make
Recommendations on the Salient Features of the Law
for Extending Provisions of the Constitution (73 rd) 3 Dr. Smitu Kothari, ‘To be Governed or to Self-Govern’,
Amendment Act, 1992 to Scheduled Areas’, available at The Hindu, 16 July 2000.
http://www.odi.org.uk/livelihoodoptions/forum/ 4 The text of the Act is available at http://tribal.nic.in/
sched-areas/about/bhuria_report.htm. actTA06.pdf.

22
 The Indian Forest Rights Act 2006: A Critical Appraisal

2
On the contrary, the MoEF misinterpreted the
Supreme Court’s order, 8 which required any
regularisation of forests encroachments to be cleared
by the Court, as a direction to summarily evict ‘all
SHIFT TOWARDS REFORM - LOCATING illegal encroachment of forestlands in various States/
TRIBAL RIGHTS IN INSTITUTIONAL Union Territories’.9 This resulted in country-wide
RESPONSES eviction drives by the forest department.10 However,
following mass protests by tribal communities, after
The state machinery’s traditional response to the the May 2004 general elections, the UPA (United
plight of tribal communities has been marked by Progressive Alliance) Government, in its Common
indifference and suspicion. However, in 1988, the Minimum Program, committed itself to discontinuing
linkages between environmental and social concerns the ‘eviction of tribal communities and other forest-
in terms of community rights to natural resources dwelling communities from forest areas’.11
were recognised for the first time and the National
Forest Policy (the ‘NFP’) highlighted the need to The task of drafting the legislation was assigned to
involve tribal communities in the management of the Ministry of Tribal Affairs (MoTA),12 which
forests.5 In order to implement this policy objective, constituted a Technical Resource Group, consisting
the Ministry of Environment and Forests (the of representatives of various Ministries, the civil
‘MoEF’) released a set of six circulars on 18 society and legal specialists, to draft the Scheduled
September 1990, which decreed that pre-1980 Tribes (Recognition of Forest Rights) Bill, 2005 (the
occupation of forest land would be eligible for ‘Bill’).13 Several provisions of the Bill met with stiff
regularisation, provided the State Government opposition from various quarters. Wildlife
evolved certain eligibility criteria in accordance with conservationists and the MoEF expressed concern
the local needs and conditions.6 Unfortunately, this over the purported potential adverse impact of its
people-oriented process was never implemented on implementation, which could, according to them,
the ground.7 extensively damage the existing scarce forest cover.
The veracity of these allegations was denied by the
pro-Bill lobby, which viewed the legislation as a
means to rectify the ‘historical injustice’, which

8 T.N. Godavarman Thirumulpad v. Union of India and

others, IA No. 703 of 2001 in W.P. (Civil) No. 202 of 1995
5 Ministry of Environment and Forests, Government of (order dated 18 February 2002), available at http://
India, National Forest Policy (1988), available at http:// j u d i s . n i c . i n / t e m p /
envfor.nic.in/divisions/fp/nfp.pdf. See also Rucha S. 202%20%20%20%20%20%20%20%201995323112001p.txt.
Ghate, Forest Policy and Tribal Development: A Study of See also Kaushiki Sanyal, ‘STs (Recognition of Forest Rights)
Maharashtra 54 (New Delhi: Concept Publishing House, Bill’, India Together, 14 December 2006, available at http://
1992) and Mihir Shah, ‘First You Push Them In, Then www.indiatogether.org/2006/apr/law-forest.htm#hilite.
You Throw Them Out’, 40(47) Economic & Political 9 The order of the MoEF dated 3 May 2002 addressed to the
Weekly 4895, 4896 (2005). Chief Secretaries, Secretaries (Forests) and the Principal
6 Circular No 13-1/90-FP of Government of India, MoEF, Chief Conservators of Forests of all States/ Union
Department of Environment, Forests & Wildlife dated Territories, available at http://www.kalpavriksh.org/
18 September 1990 addressed to the Secretaries of Forest kalpavriksh/f1/f1.2/Annexure%201.doc.
Departments of all states/Union Territories, available at 10 See Bela Bhatia, ‘Competing Concerns’, 40(47) Economic
http://www.prsindia.org/docs/bills/1167469383/ and Political Weekly 4890, 4891 (2005) and Madhu Sarin,
bill53_2007010153_MOEF_Guidelines_of_1990.pdf. See ‘Scheduled Tribes Bill, 2005: A Comment’, 40(21)
also Jean Dreze, ‘Tribal Evictions from Forest Land’, Economic and Political Weekly 2131, 2132 (2005).
March 2005, available at http://nac.nic.in/ 11 Id. See also Dreze, note 6 above.
concept%20papers/evictions.pdf. 12 Indra Munshi, ‘Scheduled Tribes Bill, 2005’, 40(41)
7 Madhu Sarin, ‘Comment: Who is Encroaching on Whose Economic and Political Weekly 4406 (2005). See also Sarin,
Land?’, Seminar, November 2002, available at http:// note 10 above, at 2132.
www.india-seminar.com/2002/519/ 13 The text of the Bill is available at http://tribal.nic.in/
519%20comment.htm. bill.pdf.

23
 Law, Environment and Development Journal

resulted in non-recognition of the forest rights of Following the notification of the Act and the Rules,
tribal communities during consolidation of forests. and the Prime Minister’s letter to the Chief Ministers
The advocates of land rights for tribals and those of the different States,21 it was hoped that the benefits
who favour continued retention of lands by the of the Act would soon be received by its beneficiaries.
forest departments also exhibited a similar
polarisation. Unfortunately, recent developments have dealt
another blow to the efforts to implement the Act.
In December 2005, the Bill was referred to the Joint These have manifested themselves as public interest
Parliamentary Committee (the ‘JPC’) in order to litigations, which have been filed before the High
settle these differences. The JPC’s recommendations, Courts of Madras, Bombay and Andhra Pradesh
which were presented to the two Houses of the questioning the validity of the Act. More recently,
Parliament on 23 May 2006,14 were also hotly two wildlife organisations - the Bombay Natural
contested by conservationists. In order to resolve History Society and Wildlife First – filed separate
the crisis, a group of ministers was asked to arrive at public interest litigations before the Supreme Court
a consensus,15 which took the form of the Scheduled of India wherein they have challenged the
Tribes and other Traditional Forest Dwellers constitutional validity of the Act inter alia on the
(Recognition of Forest Rights) Bill, 2006 (the ‘revised ground that distribution of land is a matter, which
Bill’). Once again, the revised Bill was also criticised, is within the exclusive legislative competence of state
inter alia, on account of its failure to integrate the governments and therefore, the Parliament cannot
livelihood and conservation concerns. The dilution distribute land by enacting this legislation. On 28
of the JPC’s recommendations by the group of March 2008, the Court admitted these petitions and
ministers also became the cause of discontentment issued notices to the Union Government and the
among forest rights groups and activists.16 states.22

Nevertheless, the revised Bill was approved,17 and

3
the Act was passed by the Parliament on 18
December 2006. Subsequently, the MoTA set up a
technical support group18 to prepare the Scheduled
Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Rules, 2007 (the ‘draft KEY FEATURES OF THE ACT
Rules’),19 which supplement the procedural aspects
of the Act. After a one-year delay, the Act was finally The purpose of the Act is to recognise the rights of
notified on 31 December 2007 and the final Rules forest-dwelling communities and to encourage their
(or ‘the Rules’) were notified on 1 January 2008.20 participation in the conservation and management
of forests and wildlife. The interpretation and
14 Ashish Kothari, ‘Rights and Promises’, Frontline, 28 July implementation of the Act in the coming years will
2006, page 64. See the Report of the JPC available at http:/ determine whether it was merely an attempt by the
/www.prsindia.org/docs/bills/1167469383/ government to offer a quick-fix solution or a long-
bill53_2007010353_joint_committee_report.pdf. term strategy towards the comprehensive resolution
15 Sonu Jain, ‘Green Light for Tribal Bill Changes will be in
House this Session’, The Indian Express, 8 December 2006.
of the conflict. However, an overview of several key
16 Aparna Pallavi, ‘Forest Rights Bill - Rights Denuded in a provisions of the Act, the context in which they have
Forest of Words’, India Together, 24 April 2007, available at emerged and the concessions that have been made
http://www.indiatogether.org/2007/apr/env-forbill.htm. to arrive at consensus suggest that the tribal rights
17 Special Correspondent, ‘Rajya Sabha Passes Forest Bill activists and environmentalists remain deeply
by Voice Vote’, The Hindu, 19 December 2006.
divided on various issues.
18 Special Correspondent, ‘Panel to Frame Rules for Forest
Bill Implementation’, The Hindu, 13 February 2007.
19 The draft Rules were published on 19 July 2007 and are 21 Venkatesh Ramakrishnan, ‘Hope & Fear’, Frontline, 29
available at http://tribal.nic.in/rules-190607.pdf. February 2008, page 4.
20 Brinda Karat, ‘Towards Implementation of the Forest 22 Special Correspondent, ‘Apex Court Notice to Centre
Rights Act’, People’s Democracy, 4 February 2008. on Forest Rights Act’, The Indian Express, 29 March 2008.

24
 The Indian Forest Rights Act 2006: A Critical Appraisal

3.1 Expansion of the Beneficiaries This was heavily opposed by wildlife

of the Act conservationists, such as Valmik Thapar, who
believe that the Act does not include any safeguards
The Bill had initially identified FDSTs as the sole for wildlife and fear that the extension of its mandate
beneficiaries of the Act and excluded the non-tribal would lead to further incursions into inviolate forest
forest-dependent population, which stayed in or spaces.29 The Act could have addressed this concern
depended on forests for livelihoods, but had never by providing a sharp definition of ‘other traditional
been recognised as forest-dwellers.23 Social activists forest dwellers’ but the broad sweep of the definition
apprehended that this exclusion would lead to societal adopted in the Act fails to exclude cases where vested
conflict between people who have historically lived interests have encroached on forest land, or where
in a mutually beneficial relationship vis-à-vis the forest dwellers have themselves extended their
forests. 24 It was, therefore, proposed that the encroachments. 30 This further buttresses the
distinction should be drawn between those who are conservationists’ apprehension that non-tribal
in the forests for survival and livelihood reasons and persons, who have occupied forest land, may take
those who are there for commercial purposes and advantage of this vague definition to claim rights
profit making.25 The Bill also raised the question of under the Act as ‘other traditional forest dwellers’.31
equity, recognising that a tribal community could
be subjected to differential treatment in two different Further, the Act defines a ‘generation’ to mean a
States simply because it was categorised as a Scheduled period comprising of twenty-five years. Hence, in
Tribe in one State but not the other.26 Further, in order to qualify for forest rights under the Act, the
many cases, tribal communities had migrated from ‘other traditional forest dwellers’ must prove that
their place of origin and settled in other areas for they have primarily resided in and depended on the
livelihood purposes. Given the limited scope of the forest or forest lands for bona fide livelihood needs
Bill, it was feared that they could be disentitled from since the year 1930. The inclusion of such a
claiming rights to forest land, which they had restrictive provision would render the claims of
traditionally inhabited and cultivated.27 nomadic tribes and members of the more vulnerable
non-ST forest dwelling tribes, who may have relied
The most significant feature of the revised Bill (and on other means of livelihood since the year 1930,
the Act), which resulted from the incorporation of a JPC ineligible. 32 The discriminatory nature of this
recommendation, was an expansion of the beneficiaries provision is borne out by the fact that no such
of the Act to include ‘other traditional forest dwellers’.28 requirement is imposed on the FDSTs.

23 See Kothari, note 14 above. The Act fails to provide any guidance on the nature
24 Praful Bidwai, ‘Confused and Ambivalent’, Frontline, 3 of admissible evidence to prove the beneficiaries’
June 2005.
25 Editorial, ‘Controversial Law Giving Tribals Rights Over
claims to forest rights. Given the stringent time
Forest Land Shelved’, May-June 2005, available at http:/ requirement, which requires proof of residence for
/infochangeindia.org/200506094394/Environment/ a period of seventy-five years, which would
News/Controversial-law-giving-tribals-rights-over-forest- commence in the pre-independence period, it was
land-shelved.html. According to an unofficial estimate,
the number of scheduled tribes and non-scheduled tribes
in India are equal in population, i.e., approximately 84 29 Geetanjali Jhala, ‘Conflict Will Go Up by 10,000 per cent’,
million each. See Ranjit Sau, ‘Non-Scheduled Tribes’, Daily News and Analysis, 23 December 2007, available at
41(33) Economic and Political Weekly 3550 (2006). http://www.dnaindia.com/report.asp?newsid=1140969.
26 See Bhatia, note 10 above, at 4892 and Smita Gupta, 30 Kalpavriksh, Comments on the Joint Committee Report
‘Limited Rights’, Frontline, 21 April 2006, page 95. on the ‘Scheduled Tribes (Recognition of Forest Rights)
27 See Sarin, note 10 above, at 2131. Bill, 2005 (Delhi: Kalpavriksh, 2006).
28 According to Section 2(o), ‘other traditional forest 31 See K. Venkateshwarlu, ‘Conflicts Feared’, Frontline, 12
dweller’ means any member or community who has for January, 2007, page 31; Sushanta Talukdar, ‘Doubts on
at least three generations prior to the 13 th day of Efficacy’, Frontline, 12 January 2007, page 23. See also
December, 2005 primarily resided in and who depended Jhala, note 29 above.
on the forest or forest lands for bona fide livelihood needs. 32 Special Correspondent, ‘Tribals Feel Betrayed by Rights
It is to be noted that 13th December, 2005 is the date on Law’, The Hindu, 20 December 2006.
which the Bill was first tabled in the Parliament.

25
 Law, Environment and Development Journal

argued that if oral evidence and spot verification it. In all cases, a traditional link with the forest and
were not included as admissible evidence, a large a heavy dependence on it for survival and basic
section of genuine claimants would be deprived, as livelihood should be part of determining who should
government officials would rely on colonial records get priority in eligibility.36
for the settlement of rights. 33 As it happens,
numerous peoples have resided on certain lands Unfortunately, although Rule 2(6) of the draft Rules
without formal colonial records. In a step forward, explained the requirement, the final Rules have failed
Rule 13 provides a very detailed list of documentary to clarify whether those who reside outside the
and oral evidence for recognition and vesting of forests but are dependent on forests for fulfilment
forest rights. But it goes on to state that the Gram of livelihood needs are also eligible beneficiaries of
Sabha and the committees shall consider more than the Act. The Act is also silent on the definition of
one of these evidences in determining the rights, ‘bona fide livelihood needs’. In order to remedy this
which could lead to denial of forest rights in many oversight, which may create additional difficulties
cases.34 Rule 31 of the draft Rules had also provided in the determination of claims, Rule 2(2) of the draft
for a presumption in favour of the claimant, in case Rules proposed a definition, which was similar to
of a dispute between the claimant and a State agency, the one included in the Bill. However, both these
unless proved otherwise. This would have definitions lack a sustainability dimension.
safeguarded the interests of the claimants but it has
not been adopted in the Rules. 3.2 Right to Forest Land
Similarly, the Act fails to explain the requirement Section 3 of the Act provides for the grant of several
to ‘reside in… forests or forest land’, which is heritable, inalienable and non-transferable ‘forest
applicable to both categories of beneficiaries. This rights’ to the beneficiaries. However, the scope of
could be interpreted to mean living in areas recorded this provision was the subject matter of heated
as forest land whereas most forest dwellers live in debates and very acrimonious exchanges between
areas recorded as revenue lands and cultivate forest tribal rights activists and conservationists, especially
land and use forest resources.35 It is also unclear in case of the right to hold and live in the forest land
whether the satisfaction of both these conditions, under individual or common occupation for
that is ‘reside in’ and ‘depend on’ is necessary for habitation or for self-cultivation for livelihood. The
eligibility or could either be adequate. The choice is two particularly contentious matters were the area
clearly a difficult one as most ‘forest dwellers’ do of forest land to be distributed and the cut-off date
not strictly dwell inside the forests, living on forest for the recognition of the right.
land, but are heavily dependent on the forest land
and resources for their livelihood. Therefore, a very 3.2.1 Area of Forest Land to be Distributed
broad definition could bring in various people who
really have no strong traditional links with forests The Bill had envisaged the recognition of occupation
while a very narrow one could exclude many of forestland to a maximum of 2.5 hectares per
traditionally forest-dependent people who may not nuclear family of a FDST. However,
be surrounded by forest but continue to depend on environmentalists feared that this provision intended
to distribute 2.5 hectares of forest land to each of
India’s 20 million tribal nuclear families, which is a
33 Archana Prasad, ‘Survival at Stake’, Frontline, 12 January
2007, page 4.
34 Campaign for Survival and Dignity, ‘Campaign Welcomes
Notification of Forest Rights Act, Rules’, 1 January 2008, 36 Kalpavriksh, ‘The Scheduled Tribes and Other Forest
available at http://forestrightsact.awardspace.com/ Dwellers (Recognition of Forest Rights) Act, 2006:
updates/update_01.01.08.htm [hereinafter CSD] and Critical Amendments, Clear Rules and Assessment Period
Down to Earth ‘Forest Rights Diluted’, Down to Earth, Needed’, March 2007, available at http://
31 January 2008, available at www.downtoearth.org.in/ www.kalpavriksh.org/f1/f1.2/
full.asp?foldername=20080131&filename=news&sid=3&sec_id=4. Tribal%20Forest%20Rights%20Act%202006.doc and
35 Editorial, ‘Forests and Tribals: Restoring Rights’, 42(1) Ashish Kothari, ‘A Long and Winding Path’, Frontline,
Economic and Political Weekly 4 (2007). 29 February 2008, page 18.

26
 The Indian Forest Rights Act 2006: A Critical Appraisal

total of 50 million hectares out of the 68 million However, it has been argued that regularisation in
hectares of forest land.37 According to them, given the hands of nuclear families will lead to
that only 22 per cent of India’s total area is under forest fragmentation of forest land, which was previously
cover, this would result in fresh encroachments, loss managed by the communities as a collective, for
of forest cover, and transfer of forest land into the example, certain tribal communities in the North-
hands of the land and timber mafia38. East exercise jurisdiction over nearly 300-400
kilometres of land.43 Rule 30 of the draft Rules had
This concern was clearly misplaced as the Bill was included special provisions for North-Eastern States
merely regularising the so-called existing tribal whereby the claimant of forest rights shall be, under
‘encroachments’ on forest land for livelihood the Acts, rules and regulations in force, eligible to
purposes only. Moreover, the land was heritable but hold land and live in the area in question but the
not transferable or alienable, there was a ceiling of final Rules are silent.
2.5 hectares for each family and most of the land
consisted of already degraded or completely denuded 3.2.2 Cut-off Date for Recognition of the Right
forests.39 The MoEF also argued that the grant of
2.5 hectares of forest land to each family was Tribal rights activists also considered the Bill’s
contrary to the objective of the NFP to get one-third adoption of 25 October 1980 (the date on which the
of India under forest.40 However, this was contrary FCA came into force) as the cut-off date for
to the MoEF’s own observation that the total area recognition of occupation of forest land to be too
of forest land under ‘encroachment’ (whether by conservative and they demanded the adoption of a
tribals or other communities) is a mere 1.25-1.34 later date. On the other hand, environmentalists
million hectares, which is less than two per cent of opposed any such extension on the ground that it
the recorded forest area in India.41 would lead to greater loss of forest cover.44 They
also felt that the extension suggested regularisation
The JPC recommended the removal of the 2.5 of encroachments, which is not the purpose of the
hectares ceiling and instead sought the grant of forest Act.45 However, their arguments ignored the ‘1990
land on an ‘as is where is basis’, which was fiercely guidelines’ formulated by the MoEF itself, which
opposed by conservationists. Finally, Section 4(6) had established a procedure for the regularisation
of the Act adopted a compromise solution and of so called ‘encroachments’ that occurred prior to
provided for the right to a maximum area of four the cut-off date of 1980.46 Further, 1980 as a date
hectares of forest land under actual occupation of for regularising tribal encroachments has been
an individual or family or community. Although recognised ever since the NFP.
there is no scientific or legal basis for this
determination, this is an important development Eventually, pursuant to the JPC’s recommendations,
given that over 70 per cent of SC and ST land-holders section 4(3) of the Act provided that the forest land
in India own less than one-third of a hectare.42 should have been occupied before 13 December
2005. However, there is a possible contradiction
37 Malvika Singh, ‘May I Dwell in the Forest?’, Indian
between this 2005 cut-off date and Section 2(o) of
Express, 7 May 2005. See also Bidwai, note 24 above. the Act, which specifies that ‘other traditional forest
38 See Munshi, note 12 above, at 4406. See also Kishor Rithe,
‘When Politics Strikes at Forest Roots’, The Hindu, 1
September, 2006.
39 See Bidwai, note 24 above. 43 J.J. Roy Burman, ‘The Tribal Bill: A Rejoinder’, 40(52)
40 See Munshi, note 12 above, at 4406 and Nirmala Economic and Political Weekly 5514 (2005).
Ganapathy, ‘Environment Ministry Strikes at Root of 44 See Munshi, note 12 above, at 4406.
Tribal Land Rights Bill’, The Indian Express, 14 April 2005. 45 The intent of the Act is to record the unrecorded rights
41 See Bhatia, note 10 above, at 4893 and Editorial, ‘Woolly of tribal communities. See Sanjay Upadhyay, ‘Missing
Headed Environmentalism’, Down to Earth, 31 May 2005, the Tribal for the Trees’, 3 February 2008, available at
available at http://www.downtoearth.org.in/full6.asp? http://www.livemint.com/2008/02/03232126/Missing-
foldername=20050531&filename=Misc&sec_id=48&sid=1. the-tribal-for-the-tre.html.
42 Mahesh Rangarajan, ‘Fire in the Forest’, 40(47) Economic 46 See Rangarajan, note 42 above, at 4891. See also Shah,
and Political Weekly 4888, 4889 (2005). note 5 above, at 4897.

27
 Law, Environment and Development Journal

dwellers’ have to be at least 75 years in occupation.47 use and prevention of any destructive practices in
The 2005 cut-off date may also conflict with Clause the collection of such minor produce.
6.4(iv) of the Draft National Displacement Policy,
2006, which states that only those project affected (ii) The right to protect, regenerate or conserve or
families who are/were having possession of forest manage any community forest resource which
lands prior to 25 October 1980 will be included in communities have been traditionally protecting and
the survey of the Administrator for Resettlement conserving for sustainable use, has the potential to
and Rehabilitation.48 enhance conservation. But as ‘community forest
resource’ was not defined in the Bill, it was unclear
Another criticism of the Act stems from the fact whether this right would extend to government-
that it fails to provide adequate protection to FDSTs owned forests.51 Section 2(a) of the Act clarified this
and other traditional forest-dwellers who started ambiguity by including resources within reserved
cultivating after the 2005 cut-off date. Besides failing forests, protected forests and protected areas such
to clarify the conditions under which people may as Sanctuaries and National Parks to which the
be displaced, Section 4(5) of the Act provides no community had traditional access. The Bill also
guarantee that displaced persons will get an adequate included the right to impose penalties on anyone
resettlement package, and be treated in a fair and violating traditional rights of conservation,52 but the
humane manner. In order to address this concern, same has not been included in the Act.
Kalpavriksh had proposed an amendment to the Act
to revert to the 1980 cut-off date for regularisation (iii) The right to access bio-diversity and the
of forest land, in consonance with the FCA.49 community right to intellectual property and
traditional knowledge related to forest biodiversity
3.3 Other Forest Rights and cultural diversity is an important inclusion. The
JPC’s recommendations had also imposed an
(i) The Act grants the right of ownership, access to obligation upon the government to protect these
collect, use and dispose of minor forest produce rights but the absence of a similar provision in the
(which includes all non-timber forest produce of Act lends credence to the argument that the Act
plant origin), which has been traditionally collected attempts to distance the State from its responsibility
within or outside village boundaries, even in of forest conservation.53
protected areas. However, as a concession to the
conservationists who had expressed concern about The absence of any provision elaborating how such
the adverse effects of grant of rights over forest protection shall take place is another major lacuna
resources, the definition of ‘minor forest produce’ in the Act.54 It was recommended that the rules
does not incorporate the JPC’s recommendation to should consider that the right can be made effective
include ‘fuel wood and the like, stones, slates and only if communities are permitted to continue to
boulders and products from the water bodies freely use and exchange genetic resources and their
including fish, weeds and the like’ and the right to associated knowledge, as well as to apply measures
transport it.50 Further, the final Rules do not include to protect the knowledge, as they feel appropriate.55
the provision in Rule 13(7) of the draft Rules, which
required the Gram Sabha to ensure that the exercise 51 Ashish Kothari and Neema Pathak, ‘Will the Forest
Rights Bill Save Both Tribals and Tigers?’, 14 July 2006,
of this right includes the responsibility of sustainable
available at http://www.merinews.com/
catFull.jsp?articleID=123265&catID=2&category=Nation.
47 See Pallavi, note 16 above. 52 Ashish Kothari and Neema Pathak, ‘Forests and Tribal
48 Asian Centre for Human Rights, ‘A Review of India’s Rights’, Frontline, 3 June 2005, available at http://
Draft National Displacement Policy’, 18 April 2007, www.flonnet.com/fl2211/stories/20050603001508800.htm
available at http://www.achrweb.org/Review/2007/163- [hereinafter Kothari and Pathak II].
07.htm. 53 Ritambhara Hebbar, ‘Forest Bill 2005 and Tribal Areas:
49 See Kalpavriksh, note 36 above. Case of Jharkhand’, 41(48) Economic and Political Weekly
50 M.D. Madhusudan, ‘Of Rights and Wrongs: Wildlife 4952 (2006).
Conservation and the Tribal Bill’, 40(47) Economic and 54 See Kothari and Pathak, note 52 above.
Political Weekly 4893, 4895 (2005). 55 See Kalpavriksh, note 36 above.

28
 The Indian Forest Rights Act 2006: A Critical Appraisal

Accordingly, Rule 21(1) of the draft Rules provided Therefore, it was necessary to authorise these bodies
that the right shall include ‘rights to regulate access, to regulate and manage common resources and to
control, develop and protect traditional science and penalise violators of community decisions on
technology associated with biodiversity resources’. conservation.59 Although the Bill included specific
As the relationship between this right and the provisions listing the responsibilities and duties of
Biological Diversity Act 2002, which also proposes right-holders to conserve nature and natural
such protection, required elaboration,56 Rule 21(2)- resources, and the penalties for failing to do so, the
(5) of the draft Rules provided for coordination revised Bill placed the onus on the Gram Sabha to
between the Gram Sabha and the BDA. ensure conservation without providing any recourse
Unfortunately, these provisions of the draft Rules if it failed to do so.60 The Act is completely silent on this
have not been included in the final Rules. topic as well as on the legal means of ‘empowerment’.

(iv) The inclusion of the right to in situ rehabilitation The draft Rules have sought to redress some of these
including alternative land in cases where the STs or concerns. For instance, Rule 24(1) sets out the
other traditional forest dwellers have been illegally activities that the Gram Sabha and the village-level
evicted or displaced from forest land without institution are empowered to undertake. Under Rule
receiving their legal entitlement to rehabilitation 24(2), the Gram Sabha may inter alia request the
prior to 13 December 2005 is laudable from the assistance of the Forest Department or other local
perspective of those who have been displaced or authorities for implementing its norms and take
dispossessed by ‘development’ projects, natural corrective actions where there is violation of its
disasters, or the failure of the state to provide for norms or direct the concerned authorities to proceed
them. However, combined with the expanded in accordance with law. However, the final Rules
definition of ‘traditional forest dwellers’, it expands fail to include this provision. Moreover, both the
the potential for State governments, land mafia and Act and the Rules are silent as to redressal
local elites to exploit the situation. mechanisms in cases where the Gram Sabha fails to
fulfil its responsibility.
3.4 Obligations under the Act
3.5 Relationship with Existing Laws
The Act ‘empowers’ the Gram Sabha, village level
institutions in areas where there are any forest rights The provisions of the Act are in addition to and not
holders and the forest rights holders to inter alia in derogation of other laws that are in force, such as
protect the wild life, forest and biodiversity and to the Forest Act, the FCA etc. As a result, while
ensure that their habitat is preserved from FDSTs and/ or other traditional forest dwellers may
destructive practices affecting their cultural and be vested with certain forest rights under the Act,
natural heritage. Given the failure of the they may be unable to exercise them because they
government’s traditional command and control may be subject to the provisions of the other
approach, this provision offers an opportunity for applicable laws. Problems may also arise regarding
the communities to adopt a transparent and the jurisdiction of the various authorities under these
participatory approach to biodiversity separate but overlapping laws.61 This provision may
management.57 However, these provisions will be also adversely affect the relationship between the
rendered meaningless unless empowerment includes provisions of the Act and other laws if explicit
responsibilities for conservation.58 requirements for conservation and sustainability,
which are embodied in the other laws, do not
complement the provision of rights under the Act.62

56 See Kothari and Pathak, note 51 above.

57 Madhav Gadgil, ‘Empowering Gram Sabhas to Manage 59 Bela Bhatia et al, ‘Scheduled Tribes Bill 2005’, 40(43)
Biodiversity: The Science Agenda’, 42(22) Economic and Economic and Political Weekly 4566 (2005).
Political Weekly 2067, 2070 (2007). 60 See Kothari, note 14 above.
58 Ashish Kothari, ‘For Lasting Rights’, Frontline, 12 61 See Kothari and Pathak note 51 above.
January 2007, page 14. 62 See Kothari, note 14 above, at 71.

29
 Law, Environment and Development Journal

Further clarity is required in this regard to address Further, under the draft Rules, the Gram Sabha
cases where forest/ wildlife/ biodiversity damage is could comprise a hamlet or a group of hamlets or
caused by the establishment and enjoyment of rights even adult members of the village, managing their
granted under the Act. It is also important to note affairs in accordance with their traditions and
that the application of this provision is subject to customs. In contrast, Rule 3(1) redefines the Gram
the other provisions of the Act. Therefore, in case Sabha as the gram sabha of the panchayat, which is
the provisions of the other laws contradict the a larger entity and may oversee several villages. This
process of recognition of forest rights stipulated in may open the door for extraneous influences,
the Act, the latter will prevail.63 adversely affecting the democratic functioning of the
Gram Sabha and diluting forest rights.65 Further,
in areas where these communities form the minority,

4
the primary objective of the Act to protect the rights
of FDSTs and other traditional forest dwellers would
not be achieved.66 The Rule also contradicts section
2(p) of the Act, which clearly states that the Gram
PROCEDURE FOR VESTING OF Sabha in Scheduled Areas should be that of the
hamlet as well as the PESA.67
FOREST RIGHTS
Rule 24(2) of the draft Rules also provided that the
4.1 Primacy of the Gram Sabha – a Gram Sabha may seek assistance of the forest
Move towards De-Centralisation department or other local authorities for
implementing its norms and that it may guide the
The Act is the first legislation to clearly and functioning of committees or institutions that are
elaborately lay down the process for determining the responsible for the management of forest resources.
nature and extent of forest rights. The JPC’s The final Rules do not include any such provision.
recommendations had envisaged community control Even the draft Rules were silent as to whether the
to counter the monopoly of the forest department, Gram Sabha has the power to override these
and vested the Gram Sabha with the sole authority committees or institutions in relation to areas over
and responsibility for settling forest rights of the which they have legal rights.68
FDSTs and other traditional forest dwellers within
the local limits of its jurisdiction under the Act. The Bill had been silent about conflicts between two
Although the Act authorises the Gram Sabhas to or more Gram Sabhas or between two communities
initiate the process, it dilutes the recommendation in a Gram Sabha. 69 In order to remedy this
by also involving Panchayati Raj officials (including deficiency, the revised Bill included a provision for
sarpanches etc.) and the officials of the forest dispute resolution amongst two or more Gram
department in the process. Moreover, the actual Sabhas on shared forest lands and resources but this
determination of rights is carried out by sub- was not included in the Act.70 According to Rule
divisional committees.64 Additionally, the Rules
include state agencies in the list of aggrieved persons 65 V. Venkatesan, ‘On the Fringes’, Frontline, 29 February
who can appeal against the decision of the Gram 2008, page 15.
Sabha. All these provisions will undermine the spirit 66 See CSD, note 34 above. See also Nitin Sethi and Akshaya
of decentralisation which supports the vesting of the Mukul, ‘Forest Act Notified, Tribals Unhappy’, The
Times of India, 2 January 2008.
power to verify the claims under the Act in the most
67 Id.
basic democratic body - the Gram Sabha – as opposed 68 Neha Sakhuja, ‘Forest Rights Rules Inconsonant With
to the Panchayat regime, which does not vest Act’, Down to Earth, 31 July 2007, available at http://
administrative powers directly in the Gram Sabha. www.downtoearth.org.in/full6.asp?
foldername=20070731&filename=news&sec_id=4&sid=12.
69 Madhuri Krishnaswamy, ‘One Step Forward, Two Steps
Back’, 40(47) Economic and Political Weekly 4899, 4901
63 See Upadhyay, note 45 above. (2005).
64 See Pallavi, note 16 above. 70 See Pallavi, note 16 above.

30
 The Indian Forest Rights Act 2006: A Critical Appraisal

6(f), one of the functions of the SDLC shall be to the functions of the Gram Sabha in certain
hear and adjudicate disputes between Gram Sabhas circumstances but this provision has not been
on the nature and extent of any forest rights but included in the Rules.
there is no provision for any mechanism to resolve
disagreements between the Gram Sabhas and the The institutional structure and the procedure for the
forest department.71 recognition of forest rights, as set out in the Bill,
were heavily biased in favour of the bureaucracy.74
4.2 Powers of the Government- The composition of the committees precluded the
Centric Committees under the Act participation of the peoples’ representatives in
determining the claims to forest land. Given the fact
The Act requires the State Government to constitute that the forest bureaucracy has failed to regularise
the Sub-Divisional Level Committee (the ‘SDLC’), the land occupied by forest-dwelling communities
the District Level Committee (the ‘DLC’) and the despite the passage of considerable time, the reliance
State Level Monitoring Committee (the ‘SLMC’). on the same machinery now to verify and recognise
At the first stage, the SDLC will examine the claims was certainly not a confidence-building
resolution passed by the Gram Sabha and prepare measure.
the record of forest rights, which is then considered
and approved by the DLC. The Gram Sabha can In a shift from this trend, the Act provides that the
veto the SDLC’s decision but the decision of the committees shall consist of officers of the department
DLC is final. The Act does not clarify whether the of Revenue, Forest and Tribal Affairs of the State
SDLC and the DLC are to consider the ecological Government and three members of the Panchayati
implications while approving or rejecting the rights Raj Institutions at the appropriate level, of whom
proposed by Gram Sabhas.72 The SDLC and the two shall be the ST members and at least one shall
DLC are also responsible for considering and be a woman. Rules 3-10 have further elaborated the
disposing petitions preferred by aggrieved persons compositions and functions of the various
against the resolution of the Gram Sabha and the committees. However, neither the Act nor the Rules
decision of the SDLC respectively. A clear hierarchy provide for representation of the relevant social
is maintained in the process as no petition against action and conservation NGOs and individuals on
the Gram Sabha’s resolution can be preferred the committees, which could assist the latter in
directly before the DLC. However, the committees taking informed decisions, as also to mediate
are not mandated to provide the Gram Sabhas with between community representatives and
transparent and prompt feedback and reasons for government officials.75
their decisions.73 The failure to specify time limits

5
for the determination of claims by the various
committees may also uncertainly delay the grant of
forest rights and defeat the purpose of the Act.

The Act also requires the SLMC to monitor the

process of determination of rights and to submit PROTECTION OF CORE AREAS –
returns and reports to the nodal agency (the MoTA), ESTABLISHMENT OF CRITICAL
or any officer or authority authorised by the Central
WILDLIFE HABITATS
Government. This provision effectively allows the
Central government to overrule all the decisions
The Bill proposed to grant provisional rights (for a
taken at the grass root-level. Rule 29(3) of the draft
five-year period) to tribal people who lived in core
Rules also sought to empower the SDLC to perform
areas of sanctuaries and national parks, but they could
be evicted with due compensation. However, if they
71 See Sakhuja, note 68 above.
72 See Kothari and Pathak, note 51 above and Kothari and
Pathak II, note 52 above. 74 See Gupta, note 26 above, at 96.
73 See Kalpavriksh, note 36 above. 75 See Kothari, note 14 above, at 71.

31
 Law, Environment and Development Journal

were not relocated during this period, their rights in sharp contrast to the government’s approach to
would be made permanent. In contrast to this uniform wildlife conservation in the past, which involved
and arbitrary approach, which lacked any scientific relocation of local communities from protected areas
basis,76 pursuant to the JPC’s recommendations, the without considering the impact of relocation and
revised Bill introduced ‘critical wildlife habitats’, what can be done to manage or mitigate it.79 On the
which were subsequently defined in section 2(b) of other hand, the Act does not define several key terms,
the Act as areas of National Parks and Sanctuaries such as ‘irreversible damage’, ‘co-existence’ and ‘free
that are required to be kept inviolate for wildlife informed consent’, and their parameters have also
conservation using scientific and objective criteria. not been established. In contrast, the Bill had defined
‘co-existence’ and also provided for the free informed
Under Rule 34 of the draft Rules, after consultations, consent of the concerned individuals. The Act also
the MoEF and the MoTA could issue detailed excludes a provision in the revised Bill whereby
guidelines about the nature of data to be collected, communities had a right to their original habitation
the process for collection and validation of the data, if they were unsatisfied with the rehabilitation.
its interpretation, etc. in determining the critical However, this is a welcome deletion given the
wildlife habitat. These guidelines were to take into account vagueness of the term, as dissatisfaction with any
the existing guidelines relating to documentation of form of displacement is a natural reaction and does
biodiversity and wildlife and delineation of areas such not necessarily indicate failed rehabilitation.80
as heritage sites and national parks. However, the
final Rules have completely by-passed the science- The Act explicitly provides that the government
based approach, leaving it to the discretion of the cannot divert critical wildlife habitats from which
bureaucrats to define critical wildlife habitats.77 rights holders are relocated for other uses. Therefore,
no subsequent permission for development activities
Nevertheless, the resettlement provisions of the Act can be granted in these areas. 81 Further, the
certainly represent a way forward. The safeguards, conditions laid down in Section 3(2) of the Act,82
which are included in section 4(2) of the Act,78 are which provides for diversion of forest land for
developmental projects (such as schools and
76 See Gupta, note 26 above, at 96. hospitals), serve as a community-based check against
77 See Venkatesan, note 65 above. the widespread diversion of forest lands for
78 The pre-conditions for modification or resettlement of destructive ‘development’ projects.83 It is also in
forest rights recognised under the Act in ‘critical wildlife compliance with the Samata judgment,84 wherein
habitats’ are as follows:
the Supreme Court held that the Gram Sabhas shall
(a) the process of recognition and vesting of forest rights
is complete in all the areas under consideration;
(b) it has been established by the concerned agencies of
the State Government, in exercise of their powers 79 Asmita Kabra, ‘Wildlife Protection: Introduction and
under the WPA that the activities or impact of the Relocation’, 41(14) Economic and Political Weekly 1309
presence of holders of rights upon wild animals is (2006). Tiger Task Force, ‘Joining the Dots’, Report to
sufficient to cause irreversible damage and threaten Ministry of Environment and Forests, Government of
the existence of said species and their habitat; India, New Delhi 88 (2005), available at http://
(c) the State Government has concluded that other envfor.nic.in/pt/TTF2005/pdf/full_report.pdf.
reasonable options, such as coexistence are not available; 80 See Kothari, note 14 above, at 67.
(d) a resettlement or alternatives package has been 81 Id.
prepared and communicated that provides a secure 82 The conditions are as follows:
livelihood for the affected individuals and (i) The number of trees felled shall not exceed seventy-
communities and fulfils the requirements of such five trees per hectare.
affected individuals and communities given in the (ii) The forest land to be diverted is less than one hectare
relevant laws and policies of the Central Government; in each case.
(e) the free informed consent of the Gram Sabhas in the (iii)The clearance of the developmental projects shall be
areas concerned to the proposed resettlement and to subject to the condition that the same is recommended
the package has been obtained in writing; by the Gram Sabha.
(f) no resettlement shall take place until facilities and land 83 See Kothari, note 14 above, at 64 and Madhusudan, note
allocation at the resettlement location are completed 50 above.
as per the promised package. 84 Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191.

32
 The Indian Forest Rights Act 2006: A Critical Appraisal

be competent to safeguard and preserve community excluded from the purview of the Act and the
resources. This provision is also significant in the residents of the 273 villages, which are included in
context of a great push by the MoEF to open up the areas notified as critical tiger habitats, cannot
forests to the corporate sector through the new benefit from the provisions of the Act.
Environmental Impact Assessment Notification of
15 September 2006.85 In addition to the argument that due procedure has
not been followed in the identification of these areas,
In contrast to the traditional view, which envisaged even before the notification, the Future of Conservation
an absolute severance of any human relationship Network had highlighted certain problems with the
with the protected areas, the identification of ‘critical guidelines, inter alia including that:90
wildlife habitats’ could lead to a more site-specific,
species-based approach. It also provided the (i) They were issued for implementation and
opportunity to initiate a dialogue on participatory finalisation by state governments before the Act
management of forest resources.86 However, the was notified.
anti-tribal lobby demanded that the government
should notify critical wildlife habitats in all protected (ii) They can be operationalised only in tiger
areas and evict tribals from these areas before the reserves under the WPA, but not in other
Act came into effect. They argued that the coming protected areas.
into force of the Act would result in land settlement
taking place in all wildlife areas.87 (iii) They provide for an unrealistic time frame for
the state level processes to be completed by
Taking advantage of the resulting delay, on 31 early 2008.
December 2007, even before the notification of the
Act and the Rules and the operationalisation of the (iv) The criteria for identification of critical wildlife
term ‘critical wildlife habitat’, the MoEF issued habitats was too broad to be of practical use,
guidelines to notify critical wildlife habitat.88 It then was scientifically questionable and could lead
identified ‘critical tiger habitats’ in the core areas of to situations of trying to create inviolate areas
28 existing and eight proposed tiger reserves under even where not required.
the amended WPA, which mandates the declaration
of critical tiger habitats that can then be made (v) Consultation with local communities during
inviolate.89 As a result, these tiger habitats are the identification and notification process is
given as optional, rather than being mandatory
85 See Prasad, note 33 above, at 8. as required by the Act.
86 Arshiya Bose and Ashish Kothari, ‘Sensitive Zones’,
Frontline, 29 February 2008, page 20. Despite these objections, the conservationists’
87 Kirtiman Awasthi, ‘Tiger Trouble – Balancing Act Gone argument that the beneficiaries of the Act cannot
Awry’, Down to Earth, 31 January 2008, available at
be granted forest rights in respect of most of the
http://www.downtoearth.org.in/full6.asp?
foldername=20080131&filename=news&sec_id=4&sid=1. national parks and wildlife sanctuaries, which have
See also Nitin Sethi, ‘Tiger Reserves to be Kept Out of Forest still not been notified, carried weight with the
Rights Act Ambit’, The Times of India, 1 January 2008. MoEF.91 Following the MoEF’s guidelines, several
88 Government of India, ‘Guidelines to Notify Critical
Wildlife Habitat Including Constitution and Functions
of Expert Committee, Scientific Information Required 90 Future of Conservation Network, ‘Comments on the
and Resettlement and Matters Incidental Thereto’ (New ‘Guidelines to Notify Critical Wildlife Habitat Including
Delhi: Ministry of Environment and Forests, 2007). Constitution and Functions of Expert Committee,
89 See Awasthi, note 87 above. According to the Scientific Information Required and Resettlement and
government, 31,940 sq km has been notified as critical Matters Incidental thereto’, issued by MoEF, November
tiger habitat, which is almost the entire area of existing 2007’ (Bangalore: Future of Conservation Network, 2007),
tiger reserves. See also Karat, note 20 above and Shankar available at http://www.atree.org/foc_com_moef_cwh.pdf.
Gopalakrishnan, ‘Forest Rights: Why the New Law 91 Madhu Ramnath, ‘Surviving the Forest Rights Act:
Needs to be Implemented’, 2 December 2007, available Between Scylla and Charbydis’, 43(9) Economic and
at http://www.boloji.com/opinion/0444.htm. Political Weekly 37, 39 (2008).

33
 Law, Environment and Development Journal

states have started identifying ‘critical wildlife the draft Rules contained detailed provisions relating
habitats’ within their protected areas with the to the rights and duties of forest-dwellers, which are
purpose of making them inviolate. This approach necessary for the meaningful implementation of the
of the MoEF, which interprets ‘inviolate’ as being Act, the final Rules have completely ignored these
completely free of human use and thereby requires aspects and focused instead on the process of
compulsory relocation of people, completely recognition of rights.95 Moreover, the fact that the
discounts small-scale human activities that may task of finalising the Rules was undertaken by a two-
potentially be compatible with conservation.92 member committee comprising Valmik Thapar, a
tiger conservationist, and Mahendra Vyas, the
Secretary of the Central Empowered Committee has

6
also not been well received by the pro-tribal lobby.96

Despite these shortcomings, the legislative intent to

correct a historical injustice is praiseworthy and
CONCLUSION several forest-dependent communities do have a great
interest in protecting forests, which are their sources
The tumultuous history of the Act bears testimony of livelihood and sustenance.97 In fact, in many cases,
to the differences between the pro-tribal lobby, destructive development activities, rather than the
which has heralded the legislation as a landmark in activities of tribal and other forest-dependent
the prolonged struggle of tribals and other forest communities, are responsible for the over-
dwellers, and the environmentalists, conservationists exploitation, neglect and denudation of forests.98
and the MoEF, who fear that the Act will sound the The authority of the MoEF to assail the Act is also
death-knell of the attempts to protect our natural questionable as it has itself granted permissions to
resources. One cannot deny that several provisions various companies, in the guise of development
of the Act have been drafted without considering activities, to divert forest land for non-forest
the adverse impacts of their implementation on purposes.99 However, it remains to be seen whether
conservation. For instance, pursuant to the JPC’s the implementation of the Act will, in fact, restore
recommendations, the benefits of the Act have also the rights of these communities.
been extended to other traditional forest dwellers.
However, given the ambiguity surrounding the
criteria for determining the beneficiaries of the Act,
the concern of the pro-environment lobby that the
benefits of the Act may be extended to other persons
appears to be justified.

Further, although the MoTA had promised that the 95 See Sethi and Mukul, note 66 above.
Rules and the amendments to the Act would address 96 See Venkatesan, note 65 above.
such problematic provisions,93 the Rules continue 97 See Munshi, note 12 above, at 4407 and Ashish Kothari,
to undermine the key elements of the Act.94 An ‘Bungle in the Jungle’, Seminar, August 2005, available
at http://www.india-seminar.com/2005/552/
example is the manner in which the Rules have
552%20ashish%20kothari.htm.
reinvented the definition of the Gram Sabha, thereby 98 See Rangarajan, note 42 above, at 4889.
withdrawing the local government’s decision 99 Since 1980, an average of around 40,000 hectares of forest
making power and vesting it with the government land has been diverted annually (this figure has risen from
machinery, which has been hitherto responsible for around 25,000 in the early 1990s), and in 2004, the MoEF
the injustice that the Act intends to correct. While stated in Parliament that 9.8 lakh hectares have been
diverted for 11,282 ‘development projects’ since 1980.
Over 1.6 lakh hectares have been diverted for mines alone,
and in just last three years alone, about 300 mining
92 See Bose and Kothari, note 86 above, at 21. projects involving a diversion of over 20,000 hectares of
93 See Pallavi, note 16 above. forest land have been cleared. See Krishnaswamy, note
94 See CSD, note 34 above. 69 above, at 4900 and Prasad, note 33 above, at 8.

34
LEAD Journal (Law, Environment and Development Journal) is jointly managed by the
School of Law, School of Oriental and African Studies (SOAS) - University of London
http://www.soas.ac.uk/law
and the International Environmental Law Research Centre (IELRC)
http://www.ielrc.org