Since March, denying tribals their legal rights over forests invites imprisonment for up to five years under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The Manmohan Singh government, shortly before the election notification restricted its powers, issued an ordnance to this effect (it has to be regularised by Parliament within six months), amending the rights granted under the Forest Rights Act (FRA), 2006. This came after hesitating for eight years in wholeheartedly implementing this flagship rights-based legislation for tribals.
By official count, about 400 million people live in close proximity to forests in India and depend upon it for their livelihood. When the United Progressive Alliance (UPA) government took charge in 2004, it promised to nullify the colonial era laws which made these communities encroachers in forests. After much wrangling, it did so by passing the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, usually referred to as the FRA. Till then, legal control over forest lands vested with the forest bureaucracy. (WRONG ON RIGHT)
FRA provided set criteria under which owners of lands were to be identified and handed back a maximum of a four-acre plot - not to sell further but to use. Community rights could be given to those who'd used the forests as commons before. Rights over forest produce were to also be handed back to the people. The law provided that these forest lands should not be given by the government to anyone else until the rights of the people under the law were settled. For the first time, the competing interests over forest lands had been acknowledged legally.
Once passed, getting it implemented by disinterested administrations across states became an uphill battle for the UPA, which also soon lost political interest in doing so. After eight years of implementation, only 38 per cent of the claims from tribals across the country have been settled in their favour. Governments remain especially wary of giving any community rights or rights over the lucrative forest produce market, valued at Rs 50,000 crore annually.
In 2009, three years after FRA was passed, the Union environment ministry moved to bring the forest clearance process (under the Forest Conservation Act, 1980) in alignment with the new legislation. No forest could be handed over to industry until the rights of the people had been settled and consent of the respective gram sabhas taken to use their forests for other purposes, the new orders. The orders gave primacy to settling the rights of tribal groups. In other words, forest rights went from being an administrative formality to a mandatory prerequisite.
The orders remained unimplemented, though, with both senior forest officials in the ministry and the political leadership at the Centre or the states unwilling to let the veto over forest clearances change hands. Documents with Business Standard show the Prime Minister's Office pushed hard to dilute these orders to take the bite out of FRA. Not once did the Union government stop a project for lack of consent and in high-profile cases such as Posco, the Union government passed the buck to the state government to ensure compliance.
In 2013, a new Land Acquisition Act was passed. Again, on paper, the UPA protected forest rights in this new legislation. "The land acquisition law ensures all rights guaranteed under such legislations as the Panchayat (Extension to Scheduled Areas) Act, 1996, and the Forest Rights Act, 2006, are taken care of (before acquisition of land)," explained an official of the rural development ministry.
Then, this March, the UPA government gave further legal teeth to tribals' rights with an ordinance which made it a crime under the SC/ST (Prevention of Atrocities) Act to deny tribals their forest rights.
This now leaves the incoming Bharatiya Janata Party government with the challenge of balancing the demands of industry for forests with the rights of tribals. "The reality is that the country has 10-30 crore forest dwellers. The forest bureaucracy and the corporate sector pretend forests are empty tracts," says Shankar Gopalakrishnan of the Campaign for Survival and Dignity, a coalition of grassroots groups working on forest rights.
The first part of this series noted that even before the new government takes over, projects requiring about 800,000 hectares are pending at various levels. Litigation and protests have begun to singe controversial forest clearances - the Mahan coal block in Madhya Pradesh is a prominent example - and the new environment minister has work cut out.
Meanwhile, a conservation group has challenged the Act's implementation before the Supreme Court yet again, setting the stage for testing where the new Narendra Modi government stands.