Fractured/Earth

(If quoted or referenced, please cite as: M. Rajshekhar. 2012. “The Act that Disagreed with its Preamble: The Drafting of the “Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006,” Unpublished paper, Available at: https://mrajshekhar.wordpress.com/on-the-drafting-of-the-forest-rights-act/)

Title: The Act that Disagreed with its Preamble: The Drafting of the “Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

Affiliations of author: This paper was written as an independent researcher in 2009. 

Abstract: In 2006, India passed an Act recognising hitherto unrecognised rights of tribals and other forest-dwellers over the forests that sustain them. However, for all its merits, this Act, ‘The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006’ is a puzzling document. It is ambiguous in parts. There are differences between its text and its preamble. It leaves critical questions on operationalisation unanswered. All this has marred the Act’s implementation. To explain how contradictions and ambiguities entered should what have been a precise legal document, this paper reconstructs the drafting process through which the Act took shape. Briefly, it argues that every actor who participated in the drafting of the “Forest Rights Act” – the people movements, the Left, the Tribal Ministry, the Environment Ministry, the wildlifers – had a different conception of the problem the Bill had to resolve and, consequently, the provisions it needed to contain. There were few attempts to harmonise these divergent views. The final Act emerged from a law-making process where no actor influenced more than a few provisions. In the process, the meaning of the final text became an incidental outcome – a combination of parts that do not fit together very well.

1 Introduction

It’s evident by now that the implementation of ‘The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (2006)’, or as it is more commonly known, the ‘Forest Rights Act’ (FRA), is far from satisfactory.¹

In the ensuing wave of recriminations, however, an important reason why its implementation has been suboptimal has escaped scrutiny – the FRA is a flawed legal document. It contains contradictions. It is ambiguous in places.For instance, while the Preamble vests “responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance” with the Forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD), there is little in Act or Rules on how to operationalise either. Parts of the Bill are poorly detailed. While the Act says FDSTs and OTFDs who primarily reside in forests or forestlands can claim rights, ‘primarily reside in’ is not defined in Act or Rules. Nor, for instance, is it clear how the rights over biodiversity and traditional knowledge are to be exercised.²

Such contradictions and ambiguities have enabled different implementing actors to read the Act in strikingly different ways, constraining implementation itself.

This paper seeks to explain why these ambiguities and contradictions entered the FRA’s final text. Briefly, it argues that every actor involved in the creation of the FRA – the tribal movements, the non-tribal movements, the Ministry of Tribal Affairs (MoTA), the Ministry of Environment & Forests (MoEF), Congress leaders, the Left, Wildlifers, bureaucrats in the PMO and elsewhere – had different conceptions of the problem the Act had to address, the solution it had to provide and, therefore, the provisions it needed to contain.

This assertion is supported by the fact that at different stages in the drafting of the FRA, different actors wrested control over it and rewrote the draft to bring it in line with their thinking. The first draft was written by the Campaign for Survival and Dignity (CSD).³ The fourth draft was very close to the MoTA’s conception of the Act – the second and third drafts were compromises between the people movements’ and the MoTA’s conflicting views of the Act. Then, there were the rival bills proposed by the MoEF which outline the Wildlifers and Environment Ministry’s view on what the Bill ought to be.

The draft presented to the Parliament is another compromise – this time, between the MoTA and the MoEF. The bill that emerged from the Parliament reflects the views of the Left. And the final draft is a compromise again, the outcome of a last-minute negotiation between the ruling UPA government and its coalition ally, the Left.

By itself, this diversity of opinion regarding the bill is unexceptional. For instance, when the Environmental Impact Assessment Notification (2006) was being drafted, one set of actors wanted an environmental clearance process that could reject projects with high environmental or social costs, while another set wanted a clearance process that restricted itself to suggesting mitigatory mechanisms for projects.

Where the two policy drafting processes diverge is that, with the EIA notification, one viewpoint dominated. Pro-environment civil society organisations were excluded from the final discussions. That is not the case with the FRA. No single viewpoint dominated.

This is where Akhileshwar Pathak’s formulation of laws, strategies and ideologies comes in handy. He argues that laws are created to execute a strategy which will yield a desired end. “One facet of law is specific, functional, instrumental, and strategic, calculated to produce certain specific effects… These strategies are forged in a certain context of beliefs, values and ideologies.”⁴

Seen like that, it is unsurprising that the interim drafts – the first, fourth and the post-Parliament iterations of the FRA, the MoEF’s competing drafts – while sharply dissimilar from each other are all internally coherent. Every provision they contain had been conceptualised as a part of a larger strategy. But, with no single view of the Bill eventually prevailing, the Act became a patchwork document, containing some provisions advanced by every actor.

In the process, the meaning of the final text was left to chance, something to be gleaned from the interplay of parts that don’t fit very well together.

2 Methodology

This paper has its roots in journalistic field-trips in late 2008 to Orissa and Maharashtra to see how the FRA was being implemented. Intrigued by persistent feedback that the Bill was confusing and contradictory, I began meeting senior MoTA bureaucrats, wildlifers, activists with CSD, etc, to understand how such flaws could enter what should have been precise legal text.

However, with interviewees making contradictory claims, it was soon obvious that their assertions about the FRA policy process could not be taken at face value. Accordingly, Right To Information (RTI) applications were submitted to the MoTA, MoEF and the PMO, seeking access files pertaining to the drafting of the FRA during the drafting period – from the middle of 2004 till the finalisation of rules by the end of 2007. These applications yielded about 1,500 pages of interim drafts, briefing notes, comments on interim drafts, minutes, file notings, submissions to the government, etc.

While these documents provide an excellent look inside the black box of policy-making, there are perils in relying too closely on the written record that RTI applications unearth. These documents only contain information about governmental meetings. Some documents might be missing from the files. The ones in the files might not always mention the rationale for the decisions being communicated. Or, they might not contain all the rationales. There are other pitfalls. Some documents are written to justify governmental decisions that have already been taken. Nor can one access records of cabinet meetings and parliamentary depositions through the RTI Act.

To get around these problems, the following strategies were deployed. To ensure few critical documents were missed, RTI applications were first filed requesting permission to “inspect” files – instead of directly asking the government for copies of all documents pertaining to the drafting of the FRA. That inspection formed the basis for a second RTI application asking for copies of specific documents. As a second check to ensure few critical documents were missed, RTI applications were placed with each of the principal participants in the policy process within the government – MoTA, MoEF and the PMO.

Then, to ensure the government’s viewpoint, captured in these 1,500-odd pages, did not come to unduly dominate the reconstruction, only interim drafts of the Act were accepted unquestioningly into the architecture of this paper.

Instead, a combination of documents, indepth interviews with participants and other published material about the FRA was used to reconstruct the Bill’s evolution. In all, about sixty indepth interviews were conducted. These spanned bureaucrats, tribal and non-tribal activists, tribal people, wildlife activists, other environmentalists, politicians, environmental historians, environmental governance scholars, environmental lawyers, implementing agencies, etc.

3 Structure of the essay

The hypothesis advanced in this paper is discussed over the four sections that follow. Given that the FRA was a response to the “historic injustice” perpetuated upon the tribals since colonial times, the next section (Section 4) provides a brief introduction to the “historic injustice” and to India’s previous attempts to address it. The subsequent section is a thick description of the drafting of the FRA. It takes the period between May, 2004, and January, 2005, as its starting point. Existing accounts on the creation of the FRA have missed the significance of this period.⁵ When the United Progressive Alliance (UPA) coalition came to power in 2004, it included the forests/tribals question in its National Common Minimum Programme (NCMP) but was silent on the steps it would take. It is in this period that consensus emerged that an Act would be needed. Also, it is in this period that the first draft of the FRA was written by the Campaign for Survival and Dignity (CSD). Subsequent sub-sections trace the Bill’s evolution as it was first rewritten by the MoTA. This version was then challenged by the MoEF, wildlife activists, MPs and parts of the media. After hectic parleys, an amended bill went to the Parliament where the Joint Parliamentary Committee rewrote it into something far more expansive than what the government had intended. Which resulted in negotiations between the government and the Left before the Bill could be finalised. A final subsection looks at the Rules making.

The next section, Section 6, recapitulates the hypothesis and then discusses how the contradictions and ambiguities entered the FRA.

And this paper ends after making a couple of larger points about how laws get made in independent India.

4 The ‘historic injustice’: the deep history of the Forest Rights Act

It is widely accepted that the relationship between the state, forests and people changed with the entry of the British. One view holds that the colonial state, viewing forests as a source of revenue, saw itself competing with local communities for forest resources, and insulated forests from their pressures. A countervailing view says that forests were also reserved due to ideal concerns – over drought and its relationship to deforestation.Either way, tribals lost their traditional rights over forests and land.⁶

Not much changed after independence. If anything, Indian forest laws were even more stringent in denying communities their traditional rights over forests.⁷ This appropriation of rights continued even after the focus of forest management changed from revenue generation to conservation after the National Forest Policy of 1988. At that time, India began following a model of conservation based on biocentric principles that were by nature exclusionary. More recently, as mining conflicts in Orissa and elsewhere show, forest-dweller rights are being appropriated by the state to accommodate large ‘industrial’ projects.

As the state asserted control over the country’s forests, a countervailing resistance built up among forest dwellers. In the 1960s, there was a massive uprising of tribals in Bastar. In the 1970s, there was a similar movement in Bihar. In the same decade, tribals in Maharashtra organised to defend their land and forest rights.⁸

From time to time, this resistance has resulted in the state legalising what it terms ‘encroachments’. Initially, these legalisations were carried out by the state governments. That changed in 1980 when the Centre passed the Forest Conservation Act (FCA) and took away the rights of state governments to use forestland for non-forest use. In this process, however, while halting the destruction of forests, the Act trapped several million forest dwellers as illegal occupants in their own land, and left them vulnerable to rent seeking, brutal evictions and displacement without any entitlement to compensation or rehabilitation.⁹ Countervailing pressures again built up.

In 1990, when VP Singh was PM, new guidelines on regularisation emerged. Based on a framework recommended by the Commissioner for SCs and STs for resolving disputes related to forestland between tribal people and the state,the MoEF issued six circulars on September 18, 1990. The first focused on regularising pre-1980 ‘encroachments’ on forest lands. The second on resolution of disputed claims over forest land arising out of incomplete or faulty forest settlements. The third recognised pattas/leases/grants issued by the revenue department for land also recorded as forest land. The fifth proposed to convert an estimated 2,500 to 3,000 forest villages¹⁰ and old habitations to revenue villages.¹¹

As a solution, however, the guidelines fell short. The MoEF required claimants to present original documents proving possession and ownership from a period before 1980. In most cases, such evidence didn’t exist.¹² Further, the guidelines applied only if the state government had made a formal decision on conferring such rights before 1980. Such decisions had not been taken in many states. Then, there was the requirement of land and money for compensatory afforestation to compensate for the forestland being dereserved. This proved hard for state governments to meet.¹³ Eventually, only one state, Maharashtra, took meaningful action on these circulars. On the 10th of October, 2002, it passed an order expanding the evidence claimants could submit in support of their claims.¹⁴

Even as the Centre seemed to be softening its stance (as suggested by the 1990 Guidelines and the enactment of the Panchayat Extension to Scheduled Areas Act in 1996), the courts adopted a hardline conservationist position. Under the Godhavarman PIL (202/95), the Supreme Court extended application of the FCA to all lands conforming to the dictionary definition of forest, irrespective of ownership. Consequently, state forest departments began identifying ‘forest-like lands’, including lands that remained as forests only on official documents, to bring them under their control. There was little discussion about the legal processes to be followed, the livelihood impacts on people dependent on such lands, or how their legal rights under other existing laws or constitutional provisions were to be dealt with.

Further interlocutory applications (IAs) led to interim court orders with drastic impacts on the rights and livelihoods of forest dwellers. Besides staying regularisation of even eligible pre-1980 ‘encroachments’ and halting dereservation of forest land or protected areas, the court also stayed the “removal of dead, diseased, dying or wind fallen trees, drift wood and grasses, etc” from all national parks and wildlife sanctuaries. The MoEF interpreted this to mean no rights could be exercised in PAs and banned the collection and sale of all non-timber forest produce (NTFP) from them.¹⁵

This was followed by the MoEF’s circular of May 3, 2002 asking all states and UTs to evict all forest ‘encroachers’ within five months. The ensuing spate of violent evictions across the country led to an uproar. Eventually, the ministry was compelled to issue a clarification in October that year that the 1990 circulars remained valid and that not all forest dwellers were ‘encroachers’.¹⁶ Despite this, by the MoEF’s own admission in Parliament on 16^th September, 2004, between May 2002 and August 2004, evictions were carried out from 1,52,000 hectares of forest land.¹⁷

Finally, in February 2004, just before Parliamentary elections, the MoEF was ordered by the Vajpayee government to issue two new circulars: one titled “Regularisation of the rights of the tribals on the forest lands”¹⁸ which extended the cut-off date for regularisation for tribals to December 1993 (instead of October 1980 under the 1st 1990 circular) and the other titled “Stepping up of process for conversion of forest villages into revenue villages”.¹⁹

These were stayed by the Supreme Court in response to an IA filed by the Amicus that these were in violation of court orders staying both regularisation and de-reservation of forest land.

This, then, was the contested relationship between the state, forests and tribals in post-independence India. As the courts and the MoEF asserted control over forests, opposing pressures were again building up. One outcome was the FRA.

5 The making of the Forest Rights Act

5.1 The UPA decides that a new Act will be needed.

On the 11th of January, 2005, a PMO letter announced that the PM would chair a meeting with the MoEF on the 15th to discuss the unsettled rights of people in forest areas prior to 1980 and the conversion of forest villages into revenue villages.²⁰ In existing accounts on how the FRA came about, this meeting is identified as the point when work on the Act began.²¹ That is not correct. People movements had been lobbying the Congress and the Left to stop evictions well before 2005. Within the Congress itself, the link between forest policies and tribal unrest had been established in 2002 by Ajit Jogi and Digvijay Singh.²² In 2003, Mani Shankar Aiyar, examining his party’s prospects in the coming elections, linked forest policies to the Congress’s waning vote share in tribal areas. And argued that “a Congress which… provides a constructive, detailed solution in time to reach it to far-flung tribal communities would snatch back the tribal vote.”²³

In 2004, the forests/tribals question entered the Congress and Left manifestos. And then, once the UPA came to power, its National Common Minimum Programme (NCMP). Among other promises, the NCMP said “The UPA will urge the states to make legislation for conferring ownership rights in respect of Minor Forest Produce (MFP), including tendu patta, on all

those people from the weaker sections who work in the forests.” It also said that “Eviction of tribal communities and other forest-dwelling communities from forest areas will be discontinued.”²⁴

However, the NCMP did not specify how these commitments would be met. This inchoateness is surprising. Some Congress leaders did have ideas on how to resolve the forest and tribal issue. Digvijay Singh, for instance, thought the answer lay in a new Indian Forest Act that gave rights over all forest produce, including timber and bamboo, to forest dwellers.²⁵ However, finding a solution was left to the bureaucracy. Says Singh: “This is the way the Congress works. It comes to power with a set of issues and then, it is up to the bureaucracy to find answers to these questions.”²⁶

And so, the bureaucracy – the MoEF, in this case – began thinking aloud. Should one implement PESA and give all rights over MFP to the gram sabhas? Let tribals handle forestry operations? Expedite development of forest villages? Make recommendation of gram sabhas mandatory for any exploitation of minor minerals? Harmonise tribal rights, as enshrined in PESA, with FCA? What about stronger implementation of programmes like JFM? Streamline the process of regularising pre-1980 settlers? Assign full use rights to forest dwellers? Marginally amend the FCA to provide a greater role to the forest community in forest management and benefit sharing…? ²⁷

By the end of 2004, the MoEF had decided to grant a one-time clearance under the FCA to set up schools, dispensaries, drinking water, power substations, communications posts, etc, in forest villages. It also began work on a model legislation on Minor Forest Produce (MFP), and on extending the JFM concept to all 173,000 villages along forest fringes. The ministry also wrote to State/UT governments asking them to stop evictions, and began developing a new procedure for verification/recognition of rights of tribals and forest dwellers on forestlands.²⁸

Around this time, ideation was also underway between the National Advisory Council (NAC)²⁹ and the Campaign for Survival and Dignity (CSD). By this time, with the MoEF having agreed there would be no evictions without prior verification of rights, the immediate threat of evictions had been countered. And the Campaign was wondering how to resolve the forest/tribals question permanently. Going to the courts was not an option given the CSD’s perception that courts were hostile to tribal interests. Also, given that the issue at hand was nothing less than what it saw as the decolonisation of forest governance, CSD felt it would be hard to get the government to create a new Act. And so, it was lobbying for the implementation of the 1990 guidelines.”³⁰

It’s useful to briefly introduce the CSD here. It’s a radical outfit making a reasonable demand. It defined the fight as decolonising forest governance in India.³¹ However, it asked for nothing more than the implementation of existing law. Such an approach, says Calman in Protest in Democratic India,³² subtly challenges the legitimacy of the state, for a government that doesn’t implement its own laws loses legitimacy.³³

Accordingly, the first letter the CSD wrote to the NAC asked the 1990 guidelines be implemented.³⁴ In a subsequent letter, it suggested the order of the Maharashtra government be added to the regularisation/verification process as a good model for creating an “open, transparent, participative and comprehensive process with clear guidelines as to the nature of evidence to be adopted and the criteria for acceptance of claims.”³⁵

Initially, this idea resonated well with the PMO. An allusion in PMO files to these NAC/CSD discussions says: “The major reason for the delay in regularisation of pre-1980 encroachments is the lack of availability of proper land records and acceptable evidence… the NAC has considered certain guidelines that can go a long way in facilitating and expediting the regularisation of pre-1980 encroachments on forestlands.”³⁶

However, by January, both the CSD and the PMO had lost much of their enthusiasm for the guidelines. CSD feared the new guidelines might meet the same end as the previous ones, and felt recognising unrecognised rights would give tribals more legal protection than the legalisation of an illegality. In which case, an Act conferring rights would be needed.³⁷ As for the PMO, a briefing note it prepared for the PM’s 19^th January meeting is instructive. It called the MoEF guidelines little more a band-aid, saying, “The real solution to both the issue of settling occupation prior to 1980 and conversion of forest villages is to formulate a comprehensive legislation to give due recognition to the forest rights of tribal communities and forest dwellers in the form of a “Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Act.” Such an Act would also “prevent further procedural wrangles with the court”. And, finally, that such a bill could be created by either MoTA or MoEF.³⁸

It is hard to pinpoint where this idea of an Act originated. Both the PMO and CSD lay claim to the idea. Going by the document trail, at a meeting on the 3rd of November between the NAC, the CSD and the MoEF, the NAC said new laws should be drafted if present laws cannot meet the situation.³⁹ According to Madhu Sarin, the idea of the Act emerged while CSD was wondering how to ensure its amalgam of the 1990 Guidelines and the Maharashtra Order escaped the fate of the previous guidelines.⁴⁰ But, around this time, there was also a meeting between Prabhu and R Gopalakrishnan, an joint secretary at the PMO, after a larger meeting at the PMO between the CSD, NAC and the PM.⁴¹ While in the MP government, Gopalakrishnan had faced the MoEF while attempting to convert Forest Villages into revenue villages, and now, he would be one of the principal shapers of the FRA. What is more incontrovertible is that after this meeting, the positions of the CSD and the PMO began converging.

By the end of the year, the campaign had created a draft Bill⁴² and forwarded it to the NAC. It was, Prabhu recalls, a cut-and-paste job comprising the 1990 guidelines and the Maharashtra circulars. It made no distinctions between tribals and non-tribals. The idea was merely to bring together all that had been said by the government, to thus ask the government to implement the existing law.⁴³

That was the context for the PM’s large meeting with the MoEF, including environment minister A. Raja, Prithviraj Chavan, MoS, PMO, the deputy chairman of the Planning Commission, Montek Singh Ahluwalia, Cabinet Secretary BK Chaturvedi, Principal Secretary to the PM, TKA Nair, and the National Security Advisor, MK Narayanan.⁴⁴ Others included the Chairperson of Inter-Sectoral Committee on Tribal Development, Bhalchandra Mungekar, MoEF secretary Prodipto Ghosh, MoTA secretary Jyoti Rao, Panchayati Raj secretary Wajahat Habibullah, Joint Secretary to PM, R Gopalakrishnan, and, as a special invitee, Pradip Prabhu.⁴⁵

In the meeting, the MoEF spoke about its work towards fulfilling the NCMP obligations, and argued that its 1990 guidelines could settle tribal rights. When its presentation ended, Prabhu, invited to speak by Gopalakrishnan, spoke about the brutality of the evictions, the need to settle the matter once and for all, and argued that guidelines were not enough and that only an Act could undo wrongs committed by previous laws. Further, he argued, such an Act couldn’t be drafted by the MoEF — it would take an adversarial role and couldn’t be trusted. After that, the PM asked MoTA to draft the bill. It would need to be ready by mid-February for introduction during the budget session.⁴⁶ Additionally, at this time, unsure if MoTA could draft such an Act,⁴⁷ it was decided that a Technical Support Group would draft the Bill. MoTA would just have to steer it through the Government. ⁴⁸

5.2 The MoTA position

On the 5th of February, MoTA held a preliminary informal meeting with the non-official members of the TSG. At this stage, the MoTA files contain two interesting documents. The first is the draft that CSD created for the NAC. It seems that Prabhu placed this bill before other members saying he had a draft that others could discuss. At this moment, recalls a former bureaucrat in the MoTA, “Everything looked like a fait accompli. A draft was ready. All one would have to do is comment on that draft, suggestions would be considered, and the Bill would be finalised – well within that two month deadline of the PMO.”⁴⁹

The second document is a MoTA briefing note titled “Issues/concerns, which need to be considered in the proposed ‘Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Bill’”. In this note, and in subsequent meetings, the ministry outlined an alternative view of the bill. It began by proposing that the process for accepting the claims of STs as inhabitants of the areas prior to the cutoff date be changed. Under the existing process, it said, the onus of proving possession lies with the STs. But many STs never got an occasion to get their rights recorded. Instead, members of the tribal community scheduled for a particular area should be presumed to be the inhabitants of that area unless proved otherwise by the forest department. Further, it argued that the Bill should be tenurial, not social or developmental. In a ‘social’ version, rights to education, health, etc, would have been enshrined in the Act. In contrast, the ‘developmental’ version would be a comprehensive legislation covering everything from the conferment of rights to the provisioning of schools and hospitals. Instead, the Ministry argued that once rights were conferred, schools, PDS, water, etc, would follow naturally.⁵⁰

Next, it argued the Bill should focus only on forest dwelling scheduled tribes (FDSTs) as they are the ones affected by the historic injustice. Further, the Ministry argued, there are strong documentary evidences to vet their claims. These documents were prepared at the time scheduled areas and scheduled tribes were being identified; and include working plans of the forest department, and documents recording traditional rights like nistar. The MoTA also argued that there is an inherent danger in recognising the rights of everyone, including non-STs, through local committees as these would struggle to reject anybody’s claims.The Ministry also argued that non-tribals’ claims could be processed through the 1990 guidelines. And that this bill should be used just as positive discrimination in favour of tribals.⁵¹

Finally, it suggested the Bill’s implementation be staggered. The majority of India’s FDSTs reside in 67 districts. And so, the ministry suggested the Act be implemented first in these districts. Further, it recommended that implementation be coordinated across these districts. It recommended their collectors be first trained about the FRA, and that, on their return to their districts, gram sabhas/panchayats should be called across all these districts on pre-announced dates. This, to invite and examine claims, and to forward these claims higher up where the aggregate area claimed could be corroborated with satellite images and Forest Survey of India data, followed by the vesting of titles. Through such a process, the ministry said, rights could be vested in these districts within six months. At which time, to resolve the state/forest/tribals disputes for good, the records of the revenue department, forest department and the settlers should be reconciled. This would give the government an accurate number on the actual area under forest cover. Subsequently, the tribals could be involved in local forestry operations, ecotourism, etc. It ran this idea past the PMO — Prithviraj Chauhan, Gopalakrishnan and Pulok Chatterjee — and found them amenable.⁵²

All of this, however, was sizably different from the CSD’s proposal which, among other things, made no distinction between tribals and non-tribals.

A week after the first meeting between the MoTA and the TSG’s non-official members, the first of the TSG drafts was ready. With the TSG’s unofficial members opposing the idea of an ST-only bill, it was agreed to retain the focus on STs and non-STs, but with the proviso that while forest rights would be vested in Scheduled Tribes wherever they were scheduled, the rights of FDs (including STs who had migrated outside the scheduled area) would be recognised after verification.⁵³ Environmental safeguards came in a form where rights could be used only for bonafide livelihood needs, and rights to land would not exceed 2.5ha. The bill also placed responsibility for sustainable use, biodiversity conservation and maintaining the ecological balance upon rights holders. And spelt out penalties for contravening the Bill’s provisions. In this manner, said the Preamble, the Bill would strengthen “the conservation regime while ensuring livelihood and food security of the STs and the forest dwellers”.⁵⁴

A copy was sent to the PMO. And the TSG began working on a second draft.⁵⁵ It had just been finalised⁵⁶ when PMO feedback on the first draft was received. Among other changes, the PMO suggested the Act’s purview be limited to only the FDSTs; that the cutoff date be taken as 1980 (the TSG and MoTA had suggested 1993); asked for more environmental safeguards. Then, it directed the MoTA to exclude shifting cultivation, to clarify its position vis:a:vis wildlife sanctuaries and national parks, and suggested changes on the compositions of the Sub-Divisional Level Committee (SDLC), the District Level Committee (DLC), and the State Level Monitoring Committee (SLMC). These committees would need to be set up to process applications and oversee FRA implementation. And the PMO asked MoTA to spell out their roles, and clarify the role of the Gram Sabha.⁵⁷

On the 21st, the MoTA received virtually identical feedback from Sonia Gandhi with just two points of difference. She explicitly wanted 1980 as a cutoff date: “The lack of any cut off date… is likely to encourage continuous encroachment of forestlands… till all such lands have been converted into non-forestry uses.” Apart from that, she wanted Protected Areas and Wildlife Sanctuaries to be excluded from the bill; to the extent possible, forest villages to be shifted to the edges of forests within the next 18 months; and, finally, the total area found eligible for regularisation should not exceed the actual area under non-forestry use. ⁵⁸

It was puzzling feedback. In the PMO meeting of 19th January, it had been decided that the bill would focus on STs and non-tribals. It appears these changes originated in the PMO. File notings, dated 17th February, written by Chatterji, cite “strong protests” from Valmik Thapar, Malvika Singh and say that the concerns of wildlife and forests need to be taken into account. And that while three provisions of the bill were in consonance with the FCA (rights limited to NTFP, no hunting, only bonafide livelihood activities), the draft Bill contravened the FCA in two provisions – Section two of the FCA provides that no forestlands or any portion thereof can be used for any non-forestry use except with the prior approval of the government. And two, the Act also provides that no forestlands can be assigned to any private person except with the prior approval of the central government. Neither provision would be applicable once the bill was passed. And so, he suggested 18 changes.⁵⁹ While these changes were accepted in full by Sonia Gandhi, the PMO made the changes we saw earlier.

The only suggestion the MoTA disagreed with on the exclusion of the PAs. Forests, it wrote, have their best chance to survive if communities participate in their conservation and regeneration measures. The fear of eviction, it added, is one reason why forests are becoming the abode of undesirable elements. And, given that the bill is only looking till 1980 and only at STs, it is important to include national parks and wildlife sanctuaries to give a human face to the management of these resources.⁶⁰

With the inclusion of these changes, the bill came closer to what the MoTA wanted. The draft now focused on the FDSTs. It gave tenurial rights to land and MFP. Then, timelines for implementation came in — the first meeting of the Gram Sabha would have to be held within three months of the Act getting notified. In all, the process was to not take longer than two years. Additionally, an assurance came in that no FDST would be evicted till recognition and verification was completed.⁶¹

While upset with the PMO for excluding non-forest dwellers, CSD stayed engaged, partly in the hope they could improve the Bill once it was introduced in Parliament. And partly because they had been cautioned that too much opposition might result in the draft reverting to the MoEF.⁶² This decision to stay engaged, however, created a fissure between the tribal and non-tribal components of the CSD.⁶³

5.3 Objections by the wildlife constituency

On the 14th of March, 2005, acting on PMO instructions to bring the draft Bill to Cabinet, MoTA wrote out a draft cabinet note and circulated it to other ministeries.⁶⁴ A month later, a sharply critical MoEF letter written as feedback to this note emerged in the media.⁶⁵ This letter attacked the draft Bill on a number of grounds – from administrative turf to sociological to legal to political.

It argued that forests are MoEF’s responsibility, that the FRA contradicts existing laws on conservation, that the Act would run headlong into SC orders banning de-reservation and de-regularisation. It warned that Gram Sabhas would be taken over by vested interests, that the Act would encourage fresh encroachments leading to the decimation of forests and spelling the end for national parks and wildlife sanctuaries. One cannot, it said, give away a national resource to just 8.2% of the country’s population. And that failures in development cannot be ameliorated by giving away forestlands.

The MoEF also argued the Bill would not deliver any significant gains for tribals, saying it had already stopped evictions and issued orders for development in forest villages. Also, it said, there are enough provisions for dereserving forest lands and regularising claims within the FCA and other MoEF guidelines. What is needed, it said, is a modification of the SC stay. What is also needed is a procedure for implementation of these guidelines. Finally, it added, these MoEF guidelines can take care of both tribals and non tribals.⁶⁶

With the leak of the letter, the debate on the FRA entered the public domain. For the most part, the ensuing debate, outside and inside the government, restricted itself to sweeping generalisations. One camp presented all tribals’ livelihoods and relationships with nature as derivations of economic gain and blamed them for destroying India’s forests. Occassionally, it contradictorily warned the Bill would destroy the tribal way of life.⁶⁷ The other camp argued forest-dwellers had a symbiotic relationship with nature. The first failed to explain why the country’s best forests are found in tribal areas. The other failed to explain why tribal communities wouldn’t have changed since pre-colonial times, nor continue to change in an era of increasing connectivity and swelling aspirations.

Over the next seven months, these two camps skirmished on several battlefields. In the media, which reproduced these biases through its reportage. In the Congress, where a group of pro-wildlife MPs lobbied hard enough to get the draft bill taken off the cabinet agenda.⁶⁸ They were eventually countered by a mobilisation by pro-tribal Congress MPs.⁶⁹ And, in the government, where the MoEF bitterly opposed the FRA, and recommended two of its drafts as alternatives – first, the Draft Model MFP bill, and later, the Forest Rights (Recognition and Vesting) Bill.

5.4 The MoEF’s alternative drafts

The MoEF disagreed with the assertion that restoring traditional rights to people would result in better conservation because rights-holders’ long-term survival depends upon the resource in question. It argued that: “If rights were… conferred to the communities or families on the physical entirety of the forest, ‘optimal conservation’ would mean conservation in the set of attributes that is of the highest value to the holder.” Not of the whole resource. Further, given that forest-dwelling communities have evolved in terms of their adaptation strategies (some have given up foraging strategies, and/or shifting cultivation, others have taken to terraced or settled agriculture) “It would be meaningless to grant legal rights in respect of traditional entitlements which have since been abandoned by the communities themselves.” And so, it argued that the extent of change in the traditional claims – from population growth, or from changes in adaptive strategy — needed to be identified. Further, it said, limits to these claims had to be specified to protect the resource itself.⁷⁰

Next, arguing that the bill in its present form was “full of deficiency and ambiguity… an invitation to chaos… and will haunt us for generations”⁷¹, it insisted on a quasi-judicial system where the Gram Sabha would only initiate the claims process, not approve claims. Why? Partly because the Gram Sabha comprised potential claimants. Also, conflicting claims within the same Gram Sabha might be poorly resolved given asymmetric power distribution in villages. The MoEF also wanted the bill to include FDSTs and OTFDs. It argued that most villages in and around forests are mixed villages; that there is no difference in patterns of resource extraction between the two; that, as it were, the line differentiating tribals and non-tribals is notoriously fuzzy. For all these reasons, if only tribals were given land, social conflict might ensue.Finally, it insisted on a unambiguous cutoff date of 1980, opposed in situ rehabitation, wanted protected areas to be excluded, and satellite imagery to be used to identify the extent of encroachment in whichever year the government chose as the cutoff.⁷²

This is one of the conundrums one encounters in the FRA drafting process. Why did the MoEF want non-STs to be included? That would have resulted in it losing more land. According to critics, this was little more than a ruse by the ministry to ensure it drafted the law. That said, some of the other concerns raised by the Ministry – like the nature of conservation practicised by communities – were very valid.

All these concerns show up in the two drafts the Ministry created. The Draft Model MFP bill, created as a template that states and union territories could follow while vesting ownership rights of MFP in the forest dependent communities (FDC), left national parks and wildlife sanctuaries outside its purview. Arguing that a single text cannot accommodate the diverse expectations of state governments from such a bill, it left a lot to their discretion — they could define FDC, MFP, determine the areas where MFP could be collected by the FDCs, and prescribe the manner in which an MFP could be processed. It stipulated that all collection had to be based on working plans and the carrying capacity of the area. Finally, at least 25% of the FDC’s revenue would have to go into regeneration and development of forest areas.⁷³

The other bill was the Forest Rights (Recognition and Vesting) Bill, 2005 (FRRV). In one of the more mystifying events during this period, the MoEF surprised the PMO with this Bill a day before the 30th September meeting between the PMO, wildlifers and tribal activists to discuss the fate of national parks, wildlife sanctuaries, and the people living inside them. Officially, the ministry had two rationales for what appears to have been a last-ditch efforts to recover administrative turf from the MoTA. One, it said it had been authorised by the Cabinet Committee on Tribal Affairs. Two, as the preamble of the FRRV said, the Bill was needed because while a number of “enabling instruments have been created to bestow these rights on FDC, and a number of JFM guidelines have been created to involve FDC in protection and management of forests and to give them, in turn, a share of forest produce including MFP”, legal support is now needed to achieve the objectives of these instruments.

Neither bill enjoyed much traction. Once the PMO realised that two drafts, both vesting MFP rights in forest dwelling communities, were being created, it asked the cabinet secretary to pick one.⁷⁴ In his meeting with the MoTA and the MoEF, the MoTA argued that a bill that explicitly vested rights was better than one that outlined a template states could follow. It argued that the model MoEF bill wrongly assumes people collect MFP only from the area adjoining their village. That, by excluding national parks and wildlife sanctuaries, the model bill would leave a lot of FDCs as poor as ever. That, by allowing MFP corporations to keep trading, the model bill would result in FDCs only getting wage income, not ownership rights. That the model bill vests rights in JFM committees “which are not legal entities and often excluded the real people dependent on forest”. That the model bill defines a right holder as per forest settlements in the past (but these are incomplete in large parts of the country). And, finally, that the model bill did not specify what would happen if the states did not define FDC/MFP in sync with the spirit of the bill. For its part, the MoEF argued the draft bill ignored non-tribals, which would lead to a lot of social tension. That it was creating a system where Gram Sabhas would rule on their own applications. That a single legislation could not work smoothly across the country and that it was important to distinguish between rights involving physical occupation of the land and rights accruing without occupying the land.⁷⁵

In the end, it was decided to go ahead with the FRA. However, the two ministeries were told to meet and minimise their differences.⁷⁶

As for the FRRV, the PMO brushed aside the MoEF’s claims that the CCTA had authorised the bill, and regarded the FRRV as little more than an attempt to sabotage the FRA. PMO notings from this period say: “The Ministry of Environment and Forests is trying to consciously sabotage the Tribal Rights bill which is for the basic survival rights of the poorest section of society.” ⁷⁷

Despite these setbacks, however, the wildlife lobby was quite successful at pushing its minimalist agenda into the FRA. Take the PAs. Wildlifers, MoEF and parts of the media were pressing the government to exclude PAs from the purview of the FRA, all the more so after tigers at Sariska were hunted out of existence. Even Sonia Gandhi had written twice to the PMO asking national parks and protected areas be excluded.⁷⁸ However, the PAs were said to be home to as many as 3 million STs and FDs.⁷⁹

By August, the PMO had figured how to walk this tightrope. File notings say: “The anxiety on national parks/sanctuaries has been created because of the immediate context of the tiger crisis… it would not be fair to put the rights of these people on hold on an indefinite basis… instead, the opportunity should be utilised to force the issue of conservation and protection by giving temporary “provisional” pattas which will become permanent if people are not relocated within a defined timeframe of two years in the maximum.” Such pattas, say the notings, could satisfy both conservationists and the tribal activists. “The first gets relocation and timeboundedness. The latter gets an assertion of the tribal right to property and that all eligible people would be given pattas, which will make them liable for relocation but doesn’t infringe the right to property.”⁸⁰

As for the other concerns, the MoEF and the MoTA met on the 4th of November at Paryavaran Bhavan. At the end of this meeting, the latter agreed that only 1980 would be the cutoff date. Till now, drafts had said the cutoff date would be the “25th day of October, 1980 or any other date as the Government may specify”. It was also agreed that rights granted in the core areas of national parks and sanctuaries would be provisional for the first three years. That only the area under actual occupation would be recognised and that this would not exceed 2.5ha of land. That the Gram Sabha would only initiate the process for determining rights. That officials from revenue, forest and tribal affairs would be a part of the SDLC, DLC and SLMC. And that penalties in this Act would be in addition to any other law in force.⁸¹

In a subsequent meeting on the 17th of November, a compromise was reached on the remaining issues.⁸² It was decided that provisional rights would be valid for 5 years. Non-tribals would stay out of the purview of the bill. Local nuances would be factored into the Act during the rules–making process, as would be the demand for the use of satellite imagery. And that the MoTA would reformulate definitions of bonafide livelihood and commercial purpose.⁸³

With these changes, the bill now offered less than the 1990 Guidelines had.⁸⁴ For instance, it capped land occupation at 2.5ha (The 1990 guidelines had regularised land on an ‘as is where is’ basis). It gave 1980 a legal fixity the year did not possess earlier.⁸⁵

The Left found the bill parsimonious.⁸⁶ A CSD assessment of the draft bill called provisional pattas a highly dangerous provision that could easily become a formula for mass evictions from national parks and sanctuaries. The campaign also objected to the marginalisation of the Gram sabhas, the low penalties for officials coupled with the dual penalty for rights holders, the deletion of the right of forest communities to access and own intellectual property, etc.^.87

On the First of December, the Cabinet approved the draft Act. Twelve days later, it was placed in Parliament.

5.5 The bill goes to the JPC

In Parliament, the bill was referred to a Joint Parliamentary Committee (JPC). Headed by the Congress’ Kishore Chandra Deo, the JPC consisted of thirty, mostly tribal, MPs from all political parties. Between December, 2005, and May, 2006, they heard evidence from the ministries involved, received 109 memorandums from different organisations and heard 43 representations from delegations and individuals.⁸⁸

The report it finally submitted corresponded closely with the Left’s view of the Bill. Of all the actors involved in the creation of the FRA, the Left had the most expansive view. It wanted the bill to settle rights for all forest dwellers dependent on the resource in question – FDSTs, OTFDs, those who had been evicted earlier either by the forest department or by ‘development’ projects. It also wanted the Bill to deliver more than tenurial rights over land and MFP. It wanted rights to own and manage forest resources, to development — primary health clinics, schools, roads, etc — for all forest dependent communities. As for the process through which these rights were to be conferred, it wanted the Gram Sabha to vest rights.⁸⁹

With other JPC members agreeing with the Left’s view of the Act, each of these ideas found their way into the JPC draft. Among other changes, the JPC brought OTFDs⁹⁰ and shifting cultivators back. It set the cutoff date at 2005, did away with the 2.5ha cap (opting instead for an ‘as is where is’ basis), and authorised Gram Sabhas to examine and approve claims. In other changes, the JPC draft enabled communities to claim a right to manage forests, expanded the definition of MFP, brought back in situ rehabilitation, expanded admissible evidence and deleted penalties for rights holders. Finally, it placed new responsibilities upon the government like providing an MSP for MFP, passing benefits from mineral exploration to the local community and to take punitive action against any non-FDST/non-OTFD who violated provisions of this law.⁹¹

In all, about 50 changes were made. The bill now was radically different from what the MoTA, MoEF and the PMO had envisaged. In the PMO, Gopalakrishnan stopped talking to the people movements, upset with them for disregarding the consensus that had been formed over the Bill before it went to Parliament, and for working closely with the JPC.⁹²

5.6 The post-JPC negotiations

On the 31st of May, 2006, the PMO asked MoTA for the key differences between the JPC report and the Act as presented in the Parliament.⁹³ In its reply, the ministry wrote: “The changes made by the JPC, if accepted, would have far-reaching and extremely adverse consequences for the forest dwelling STs… By accepting the bill… we would, perhaps, be doing great injustice to the forest dwelling STs instead of undoing the historic injustice done to them over the centuries, as was the original objective of the legislation.”⁹⁴ And categorised the JPC’s changes into eighteen ‘important issues that are agreeable’, four ‘important issues that are not agreeable’, six ‘issues that are agreeable with minor changes’, and twenty two ‘minor and consequential issues which are not agreeable’.⁹⁵

In the ensuing negotiations, most of the attention focused on the four (later amended to five) ‘important issues that are not agreeable’. These issues and the Ministry’s reasons for opposing these, were:

1. Inclusion of non-tribals and OTFDs: The ministry argued this would result in a flurry of claims from non-tribals at the cost of the FDSTs. That there was precedence in the Constitution to treat the recognition of rights of STs and SCs separately. STs form the majority of the forest dwellers and the primary objective of this bill was to correct historic injustice done to them. Scheduling, while it proves which tribal is a legitimate claimant, is less useful when it comes to non-STs. The recognition of rights of non-tribals would have an adverse impact on population mix in scheduled areas. Legitimising inward migration into tribal areas would create a fresh injustice and the inclusion of non-STs might lead to claims by illegal migrants from neighbouring countries.⁹⁶ Also, the inclusion of non-STs would erode the traditional regime of rights of STs engaged in MFP collection,⁹⁷ and that non-tribals’ rights could be settled through existing MoEF guidelines.⁹⁸

2. Extension of the cutoff date: Even recent encroachers would demand recognition of their rights.

3. Revision of the land ceiling from 2.5ha to area under actual occupation: This would result in a land grab.

4. Expansion of MFP to include stones et al, and expansion of the right to community forest resources to include timber, minerals, environmental and cultural services: This might be interpreted to include granite, marble. Also, as per PESA, prior recommendation of the Gram Sabha for grant of prospecting license, mining lease, etc is needed only for minor minerals. The MoTA also argued that right to timber was never traditionally enjoyed by the STs, and would result in large-scale felling of trees.

5. Making the Gram Sabha the final authority for approving the record of forest rights: The MoTA argued that preparation and finalisation of records need to be done by a official committee to ensure accountability. Also, given that quorum for a Gram Sabha is as low as 1/20th of the population in some states, this could encourage dominance of entrenched interests. Further, given that evidence to show possession has to be only as recent as 13/12/2005 and that all final decisions are to be taken by the Gram Sabha, the verification process would become a free for all. Members of a Gram Sabha would just approve each other’s claims, as oral evidence was now acceptable.⁹⁹

Eight days later, even at the cost of alienating the Left, a coalition ally, the Group of Ministers set up to examine the issue concurred with the MoTA stance.¹⁰⁰ It’s interesting to contrast its stance with a letter Brinda Karat wrote to the Prime Minister on the 29^th of August, 2006. In this letter, she argued the JPC positions emanated from positions taken earlier by the government.¹⁰¹

1. The 2004 circulars had pushed the cutoff date to 1993. Which means 1980 is not a sacrosanct date for the government.

2. As for the cutoff date, she argued that the extension to 2005 is only for tribals. And that the cutoff continues to be 1980 for nontribals. And that, if anything, the JPC recommendations are even more stringent as all traditional forest dwellers have to show that they have lived in the forests for three generations. And suggested that, thus, the cutoff year be taken as 1975 for OTFDs.

3. As for the ceiling, she pointed that 3.75 lakh ha has already been regularised for pre-1980 forest dwellers. This regularisation was done on an ‘as is where is’ basis. To introduce a ceiling now would be discriminatory. Also, she argued, tribal land is dependant on rain, has low productivity, and is usually dry, stony, hilly land. The average ceiling for dry land in different states is 21 acres. A ceiling of 2.5 hectares for tribals would be unjust. As it were, the government has acknowledged difficulties in distinguishing between different sections occupying land. Also, she added, previous beneficiaries had comprised tribals and non-tribals.

4. As for the Gram Sabha, most of these lands fall in Schedule five and six areas. Among the powers given to the Gram Sabha under PESA is that of identification of beneficiaries for government programmes. Seen like that, the JPC reccomendation gives no new decision making rights but only reiterates rights already legally recognised even if perhaps not enjoyed.¹⁰²

A series of meetings followed. Prithviraj Chavan, then MoS at the PMO, was asked to meet Brinda Karat to see if the areas of difference could be minimised.¹⁰³ A day before that meeting, the MoTA sent him a list of concessions the government could make — the recognition of OTFD rights could be done later through a different process like the MoEF guidelines; the cutoff date could be extended to 1993; A higher land ceiling of 3.5 or 4.5ha could be considered; instead of making the Gram Sabha the final authority, the composition of SDLCs and DLCs could be amended to include two tribal elected representatives from panchayat bodies.¹⁰⁴

The first meeting between Karat and Chauhan on the 28th of September was inconclusive. Only two issues (inclusion of the OTFDs and the cut-off date) were discussed. On those, there was no agreement. In the meeting, Meena Gupta, secretary, MoTA, suggested non-ST claims be settled under a separate framework. For her part, Karat argued that “there are a large number of forest dwellers other than the STs also in the forest areas for a long time and their rights also need to be simultaneously recognised by the same bill.”¹⁰⁵ Later, alluding to Gupta’s proposal, Karat wrote: “This would have… divided communities who have been living together amicably for generations; it would have led to a multiplicity of authorities; it would have given a handle for eviction of genuine forest dwellers… the (Left)… let it be known that unless the cut-off date was changed it would lead to mass evictions of tribals which the party could never accept. It was conveyed to the government that it would be better to have no bill at all rather than one which would provide the legal sanction for evictions of tribals.”¹⁰⁶

About ten days later, PMO notings, after echoing the MoTA position on the concessions that can be made, say: “RM (Raksha Mantri/Pranab Mukherjee) may be requested to hold the final meeting with select members of the JPC as an exercise in persuasion on these points after which it could be taken up in cabinet.”¹⁰⁷ Around this time, JPC members were conducting their own exercises in persuasion. Deo, for instance, convinced Kyndiah.¹⁰⁸ Separately, Karat met the PM who, she says, was against the JPC recommendations, and only asked her to speak to Pranab Mukherjee.¹⁰⁹

The government was under pressure. The JPC report had rekindled the debate on the possible impact the Bill might have on the forests.¹¹⁰ The Left and people movements were attacking the government.¹¹¹ In Parliament, the government was hauled over the coals for the delay in introducing the Bill. Fearful of losing the political initiative on the FRA, a nuanced capitulation followed. On the 13th of November, a GoM meeting held after a meeting between the UPA and the Left¹¹² earlier that day, it was decided to recommend to the cabinet that landholdings be raised to 4ha or actual possession (whichever is lower); that 2005 be accepted; and that while the Gram Sabha cannot be the final authority, the composition of committees be changed to include one male and one female representative from the Panchayati Raj institutions at the appropriate level. On the inclusion of non-tribals and the two MFP clauses, the GoM stayed unmoved.¹¹³

That changed once the amended Bill entered Cabinet. On the 7th of December, 2006, the Cabinet passed the bill, albeit with the modification that “…the non-tribal forest dwellers with a minimum stay of three generations in forest areas, as on the cutoff date, be also vested with rights.” However, it replaced the JPC’s typology of OTFDs with a two-line stipulation: “provided they have lived in the forests for three generations. A “generation” in this context will mean 25 years”. According to one bureaucrat, OTFDs were included partly because the cabinet was starting to worry about the possibility of social conflict if only the FDSTs got rights. And partly because Laloo Prasad Yadav and Ram Vilas Paswan felt that the bill should not be restricted to just the STs.¹¹⁴ With that, SC/OBC politics entered the calculus over the FRA.

This was followed by a meeting on the 11th of December where the Ministers of Tribal Affairs, Panchayati Raj, and Environment & Forests, finalised amendments to the Bill. Taking large and small changes into account, 45 clauses in the JPC Bill were amended.¹¹⁵ Few of these changes explicitly rejected JPC suggestions. Instead, their impact was dampened.

The events that followed greatly reinforced the people movements’ (and the Left’s) suspicion of the government. The Parliament session was to end on Tuesday, 19th of December. The government brought the Bill to Parliament on the 15th afternoon. With the weekend coming up, the Bill had to be passed on that day itself so that it could be sent to the Rajya Sabha and adopted before the session adjourned sine die on the 19th. Now, fifteen minutes before the discussion started, the official amendments to the Bill incorporating the major changes were given to Lok Sabha MPs. The choice at that time was either to pass the Bill with all these amendments or risk the government not introducing the Bill in the next session.¹¹⁶ It was decided to pass the bill.

6 The rise of contradiction

The bill as passed had now become a composite of provisions mooted by separate actors – 2005 as a cut-off year, clauses to protect forests and wildlife, the inclusion of OTFD, the caveat that they should have lived in the forest for 75 years, restriction of the Gram Sabha’s role, giving the community a right to manage forests, non-superseding nature of the Act, etc. With that, the first of the contradictions and ambiguities began to show up. Some of these had been addressed, however suboptimally.

Take penalties. During the time when the MoTA and the technical support group were drafting the FRA, a clause on penalties for contravening its provisions had been introduced to reduce opposition from wildlifers: “Whoever contravenes/abets the contravention of any provision… will be punished with simple imprisonment”. This was subsequently bolstered with a subsection on the duties of forest rights holders.¹¹⁷ Both had been deleted by the JPC. This left the MoTA facing a quandary. From a conservationist’s point of view, penalties were needed to ensure non-contravention of the Act. But the Preamble was saying that “The recognised rights of the FDSTs and OTFDs include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance”. If conservation et al were conferred as a right (as opposed to a duty/responsibility), their non-execution couldn’t be penalised. For that, conservation would have to be a duty. But that would challenge the Preamble which saw conservation as a right.

Consequently, it was decided not to oppose the JPC recommendation to delete penalties. Instead, the section on “duties of rights holders” was hurriedly edited to read ‘rights holders are empowered to…’. I say hurriedly because the drafters forgot to change the descriptive caption on the margin. That still speaks of duties of rights holders.¹¹⁸

Other contradictions, like the ones between the Preamble, the Statement of Object and Reason, and the text of the Act, found their way into the Act.

Things went further awry after the rules were finalised.¹¹⁹ For instance, the draft rules published on June 19, 2007 clarified that ‘Primarily reside in and depend on the forests or forest lands’ in section 2(c) and section 2 (o) of the Act means those “claimants who are dependent on such forest or forest land for bonafide livelihood needs but who need not exclusively and necessarily reside on such forest or forest land”.¹²⁰ This clarification is missing from the rules finally adopted on January 1, 2008.¹²¹

Further, the draft rules provided an institutional process for implementing the duties on conservation. This required that plans, norms, methods and procedures be prepared for protection and management of community forest resources, and that these be harmonised with official prescriptions and plans. Similarly, norms for protection, regulation, sustainable use and community wildlife management were to be institutionalised. In the final rules, however, this section was truncated into a single sentence: that the gram sabhas must ‘constitute committees for the protection of wildlife, forests and biodiversity from amongst its members, to carry out the provisions of section 5 of the Act’.¹²²

Similarly, a large section clarifying and outlining the processes through which each of the rights was to be vested was deleted.

What happened? One, it appears that, by this time, even the MoTA bureaucrats were jittery about the Act’s environmental impact. If MoTA had been left to its own devices, a former bureaucrat said, the rules would never have been written.¹²³ And so, they began introducing safeguards, and rolled back some more of the JPC’s changes.¹²⁴ Section 6(g), for instance, was amended to allow state agencies aggrieved by Gram Sabha decisions to appeal to the SDLC.¹²⁵

All this was exacerbated by haste. Elections were coming up in 2007. Political mileage accruing out of the FRA was being grabbed by the Left. And the Congress did not want the Left to walk away with all the credit for the Act. PMO notings during this period say: “The government might also want to decide how its scorecard will look if it delays notification. The overwhelming logic is that it will be forced to notify grudgingly these Rules shortly and in the process, it would have squandered away any goodwill from such a measure and instead seen first as capitulating to amateur opinion that belittles the power of history and political democracy and next to political adversaries who will claim credit for having brought the government to its knees for trying to scuttle an agenda that vitally affects 7% of the most vulnerable of India’s population.”¹²⁶ And so, it pushed for rapid enactment of the Act, saying that the States could sort out the finer details during implementation.

It might still have been possible to accommodate the government’s need for hurry without sacrificing coherence. But, by this time, key bureaucrats instrumental in the creation of the FRA had been transferred out of the ministry. Instead, MoTA created another Technical Support Group to frame Rules.

The fallout was predictable. Late in 2008, I attended a workshop at Maharashtra’s Tribal Research and Training Institute. This had been called for the tribal and forest department people, to arrive at a consensus on what the Act meant. And then, to escalate all the ambiguities and unresolved doubts further up the ladder to the Centre for clarifications. What if there is no quorum in even in the second Gram Sabha? What if farmer A had cleared land but farmer B was sharecropping it? There were concerns that the tribal dept is not very strong. and so its dictats might go ignored by the local administration. Talking to other implementing actors, one similarly heard myriad doubts – on FRA implementation inside the Critical Tiger Habitats, on the source of authority for rights holders who have been empowered to protect the wildlife, forest and biodiversity, on how the rights over biodiversity and traditional knowledge were to be exercised.

7. Larger reflections on law-making

In the diversity of views it attracted, the FRA is a representative bill. Look at the ongoing debates over the Land Acquisition Bill, or over the Lokpal, or the Microfinance bill, and you will see a similar range of opinions on why these laws are needed and what they should contain. The question is: How good is this country at creating laws that factor in all concerns?

What does the FRA tell us? We saw different actors come up with different drafts of the Bill. We also saw that each actor, whenever it got control over the Bill, rewrote it extensively to bring it in line with its conception of the Bill. And we saw some attempts to reconcile the views of different actors – between the MoTA and the Technical Support Group; between the MoTA and the MoEF; between the UPA and the Left – and that these still resulted in a somewhat incoherent, contradictory Act.

Is that a good outcome? Surprisingly, yes. Compare the FRA to the Environment Impact Assessment (EIA) Notification, which was also passed in 2006. As a notification, it did not need to go through the Parliament. The ministry held consultations with states, civil society groups and industry and finalised EIA, 2006. In the last rounds of discussions, civil society was excluded from these deliberations. And the final notification resulted from a three-way negotiation where states wanted decentralisation, industry wanted deregulation and the MoEF wanted to lose as few powers as possible. It is a negotiation where there was no actor talking on behalf of the environment.¹²⁷

The result was a policy which, while accelerating the speed of environmental clearances, weakened the country’s environmental regime. Among other things, it failed to improve the quality of EIA studies and weakened the role of public hearings during the project clearance process.

Internal coherence in a law can be an over-rated quality if you do not want to go where the law wants to take you. In contrast, with all its ambiguities, the FRA does a better job of reflecting the myriad tensions that surround these complex questions around the state, people, forests and wildlife. Yes, there is room for the forest bureaucracy to challenge the rights process. But, at the same time, FDSTs and OTFDs now have a law they can use to claim their rights. What the FRA has done is create a more level ground for new contestations.

Acknowledgments:

Several debts were incurred while writing this paper. Large parts of this paper were written at the Nehru Memorial Museum and Library. The RTI Act helped me break into the ‘Black box of policy making’ with stunning ease. I am grateful to Sunil Garg and Neelam Bhutani at the Ministry of Tribal Affairs (MoTA) for tolerating my frequent trips to their office to peruse Ministry files. Thanks are also due to Arshiya Urveeja Bose, Mahesh Rangarajan, and two ex-MoTA bureaucrats, for their insights and encouragement. Above all, though, I need to thank my sister, M Madhu. I couldn’t have written this paper without her.