India had a constitutional right to property. This was a fundamental right under Article 19 (F) of constitution. Dilution of this right began with the first constitutional amendment in 1951. In 1977, the 44th constitutional amendment removed the right to acquire, hold and dispose of property. From that day till today what we have seen is a counter revolution of some kind for instance the Narmada Bachao Andolan, Singur-Nandigram protests etc. What all these were highlighting was that dilution of right to property greatly expanded the abuse of eminent domain and a critical mass of people was forming at the grass root who no longer were willing to accept the acquisition of land or property by the state for whatever purpose.
FRA recognizes Right to Property
Forest Rights Act 2006 (FRA), passed by Indian Parliament in December 2006 and rolled out in 2008 was the first legislation seeking to recognize right to property and land. In Jammu & Kashmir around 1949 the then Prime Minister Sheikh Mohammad Abdullah had enacted Big Landed Estates Abolition Act also called Land to Tiller act. Zamindars were not allowed to have land holding more than 180 kanals (23 acres approx). The extra amount of land was distributed to poor peasants. Recently Govt of India under J&K Reorganisation Act Order No 2 repealed this act. With an attempt to decolonize the colonial laws, FRA aims to recognize and vest forest rights and occupations of forest land on Forest Dwelling Scheduled Tribes (FDSTs) and Other Traditional Forest Dwellers (OTFDs). For centuries, these people have lived in forests, but their rights have not been recorded. The act was a step towards redressing historical prejudice and empowering communities to participate in the management of forest and wildlife protection. The preamble to the Act itself notes that it recognizes the historical injustice to tribals and others who have been traditionally living in forest areas.
Provisions under FRA
The Forest Rights Act (FRA) provides the right to hold and live in the forest land for habitation or self-cultivation for livelihood by a member or members of Forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD). FDSTs can be related with Gujjars and Bakerwals in J&K and OTFD can be related to Kashmiri , Dogri , Pahari or any other Non ST people living near forests for last 3 generations or 75 years or more.
FRA gives the right of ownership, access to collect, use and dispose of minor produce which has been traditionally collected within or outside village limits. In practical terms it recognizes individual claims of up to 10 acres or 4 hectares for agricultural land (80 kanals). The act recognizes habitation and things that go along with habitation like schools, dispensaries, fair price shops, electricity and telecommunication lines, water tanks etc. with prior recommendation of Gram Sabha. However, any of these facilities should not involve felling of more than 75 trees per hectare. The Act recognizes the rights over community resources. Community resource mean forest resources that include land, water, firewood, grazing land, cultural resources, burial centres or cremation grounds, etc.
75 years of residence
The criteria here says 75 years of residence in the same vicinity and not just the same place. Unfortunately experiences from other states suggest that this has been interpreted in most of the cases as 75 years of possession. In India, who can show, particularly in these remote areas 75 years of possession that is pre independence? How is that record ever going to come up? Even with regard to tribals there is a requirement that you must prove that you are dependent on the forest for livelihood. In the FRA, the most significant and new aspect is that it has a clause acknowledging the right to manage parts of the forest over which it has rights. FRA is not merely about giving rights to people to collect firewood or do cultivation etc. But as part of a package they now have the right to decide how to manage their resources so that it becomes sustainable and long-term.
Participation of people
The other significant component of the FRA that I want to emphasise is the participation of people in the process. In my opinion, this legislation is somewhat close to the Right to Information Act. RTI, if it is powerful, is only because people have decided to use it. I mean with ten rupees you can seek information and if you are a poor applicant , you are even exempted from paying application fees. The enormity of RTI can be seen in daily headlines as to the amount of scandals and scams and discrepancies that this act is able to detect. In the case of FRA, just like RTI, people themselves can take it forward and which of course has a downside in the sense of people’s capacity to take it forward. Forest Rights Committee at village level plus Gram Sabha are the most empowered committees and even SDM’s or Deputy Commissioners can’t side-line their recommendations. People living in villages near forests need to be made aware about provisions under FRA 2006 and there is a great role of NGOs to do that in Jammu & Kashmir especially. RTI Movement activists have already begun doing this in several villages of Budgam district but a lot more needs to be done.
Duties of people under FRA
Along with the rights of the people living near forests the holders of forest rights also have certain duties to perform. They have to protect the wildlife, forest and biodiversity. They have to ensure that habitat of forest dwelling STs and OTFDs is preserved from any destructive practices affecting their cultural and natural heritage. They have to ensure that decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects wild animals, forest and biodiversity are complied with. The Act empowers Gram Sabha and not Panchayat because the latter is a larger body and the earlier is a smaller unit directly affecting a particular area. Gram Sabha is empowered to do things which it can actually do.
Forest Rights Act (FRA) aims at deepening democracy at grassroots level. The Act seeks to protect the title and then to ensure security of the title. If we are able replicate the true spirit of the act in Jammu and Kashmir, I am sure there is a huge potential to enable people to bootstrap themselves into a higher level in the socio-economic ladder. Gram Sabha, Civil Society players, activists ,Tribal Affairs Department and Forest Department need to work in collaboration to ensure FRA is implemented in letter and spirit.
Danish Yousuf is pursuing a master’s programme in Social Work at Delhi University. He has pursued a diploma in Peace & Conflict studies from Lady Shri Ram College.