The notification of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act) and rules brings a long process to close. But the real challenge is now. There are two extreme positions on the act. One holds that historical injustice has been done to forest dwellers, especially during the forest reservation processes of the last century, while the other believes that the last forest tracts will be handed over to people who cannot coexist with wildlife, especially tigers. The government has swung from one extreme to another: it drew up the first draft act in 14 days in early 2005 but took almost two years to notify the act.

The debate so far has been unclear on several issues, including the total area of land to be transferred, ownership, process of recognition, cut-off date, duties and scope of the act.
   

The recently notified rules have not made things easier. The reliance on gram sabha of the conventional gram panchayat, lack of clarity on protection methods, the introduction of the panchayat secretary in the initiation of recognition process, lack of linkage with existing participatory forest management strategies, inadequate process of defining community forest resources, the silence on “critical wildlife habitat”, and the lack of representation of civil society in the recognition process are some of the things which make matters complex.

The solution is to go back to the essence of the law, the preamble. It states that the act’s aim is to recognize forest rights for those who have been residing in forests for generations but whose rights could not be recorded. Such rights are based on a well-established global principle: security of tenure is cardinal to ensure effective conservation. Laws in the Philippines, Australia and in many African countries follow this principle. The Union Ministry of Environment and Forests too recognizes insecurity of tenure and disputes in land titles and forest lands as major impediments in effective forest management and has even issued directions to correct these anomalies.

But several myths persist. It is held that the act will hand over 4 hectares (ha) of forest land to every tribal family. Actually, the legislation only recognizes existing occupation up to a maximum of 4 ha. This has to be validated at a three-level scrutiny process where the forest, tribal, revenue and panchayat departments would be involved in verifying the veracity of claims.

Another serious concern is about the magical figure of 4 ha For those who have followed this law it seems a compromise between the 2.5 hectares envisaged earlier on the basis of existing Forest Village Rules and the “as is where is basis” advocated by the Joint Parliamentary Committee There is no scientific or legal basis to 4 ha.

The December 13, 2005, cut-off date for recognizing occupancy is also beyond reason. The act was about undoing historical injustice, which has to be proved by historical records. December 13, 2005 is not a historical date. Also, a cut-off date hints at regularizing encroachment. But this act is not about such regularization; it’s about recording unrecorded rights. Conservation-oriented rules also have due processes for bona-fide claimants, which have been rightly criticized as faulty. The Forest Rights Act only attempts to better existing processes.

The tiger lobby claims that the act will transfer several thousand hectares to tribals and grant them land ownership on forests. But the act does not mention ownership (except for minor forest produce). It only secures the tenure and usufructs of those who have resided on forestlands for generations.

The biggest challenge, however, is the determination of “critical wildlife habitat”. The rules completely ignore how this important aspect of the act will be secured. Many say the gram sabhas, the lowest unit of governance, cannot be given the important task of initiating the recognition process because they lack capacity. In fact, the rules dilute the original plan of starting the recognizing process from the hamlets.

Why are we reluctant to rely on the wisdom of ordinary gram? Who conserves forests? Aren’t the daily wagers involved in forestry, the guides, informers, knowledge holders on forest, the village boy who shows tigers to urban enthusiasts, members of the same forest dwelling communities? This act is about their security of tenure. It’s time to clear myths, reconcile differences, before we lose both the tiger and the tribal.

Sanjay Upadhyay is member, Technical Support Group for framing the Rules for the Forest Rights Act and a supreme court advocate

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