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Process Betrays the Spirit: Forest Rights Act in Bengal by Sourish Jha


The implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has created controversy in West Bengal. The gram sabha, the basic unit in the process of forest rights recognition, has been replaced by the gram sansad, denoting the village level constituency under the panchayati raj system. This has been followed by contiguous arrangements as well as initiatives which are inconsistent with the Act. All these factors have led to undermining the spirit of the Act to promote community governance of forests, which has invoked stiff opposition from forest dwellers in the region.

More than two years after the n otification of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006,1 the Ministry of Environment and Forests (MOEF) has constituted a committee to study the implementation of the Forest Rights Act (FRA) by its notification on 11 February 2010.2

The composition of the committee, dominated by the representatives from MOEF, has evoked harsh criticism from different corners. Many organisations and activists working for the forest tribals have expressed their doubts over the impartial functioning of the committee, while accusing the ongoing violation of forest rights by the state forest departments (FD). However, the raison d’être behind such a committee cannot be brushed aside, particularly in the context of a perceived sabotage or denial of community rights as enshrined in the act by the governments. Besides, even after a long delay and several anomalies in the distribution process of title deeds of the land at the i ndividual level, most of the state governments till date have neither framed a clear procedure nor encouraged claims to be filed and recognised for community rights. This is amply evident from the r ecent statement on the implementation status of the FRA, 2006 by the Ministry of Tribal Affairs (MOTA) as on 28 February 2010.3 The statement shows that except for 48 titles out of 4,343 community claims in Assam and 58 titles out of 1,895 community claims in Orissa, none of the 27 states are either ready or have distributed community title deeds so far. Meanwhile, the FD’s initiative to promote joint forest management (JFM) under the National A fforestation Programme continues to under mine the Section-4(e) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, which clearly states that

Gram Sabha shall constitute Committees for the protection of wildlife, forest and biodiversity, from amongst its members, in order to carry out the provisions of section 5(a) of the Act.4
The Spirit and Its Betrayal

The significance and fundamental contribution of the act lies in its community orientation, going beyond the paradigm of individual rights not only in respect to the community claims over its resources but also in the overall procedure for recognising forest rights even at the individual level. The act is qualified with the construction of a political community at least at the village level, where sole “responsibility and authority” has been given to the gram sabha to settle people’s livelihood rights, ensure food security, sustainable use of resources as well as to protect forests and biodiversity to maintain an ecological balance for strengthening the conservation regime of the forests.5 But, unfortunately, the whole process of community building and community control has been subverted through the process of its implementation throughout the country. Its implication has been reduced to a mere “patta” giving process under the ongoing colonial regime of hegemonic control of the FD. The classic example of the gross violation of its spirit can be drawn from West Bengal’s forest villages,6 where even the procedural part of the act has been d enied by the Government of West Bengal (GOWB) and bureaucratisation of implementation leads to the negation of its substantive character.

Major Inconsistencies

Following the notification of the FRA, 2006 on 1 January 2008, the GOWB started implementation of the act in March 2008. The initial Memo/Order was issued by the Backward Classes Welfare Department and the Panchayat and Rural Deve lopment (P&RD) Department on 10 and 17 March, respectively, and subsequently, followed by the district level orders. H owever, both the memo and the order remained inconsistent with the act and v iolated it in letter and spirit.

Major inconsistencies in that Memo/Order are as f ollows:

(1) According to the Department of Backward Classes Welfare, Memo No 672

(18)-BCW/GM (MC)-5/2006 (1) dated 10 March 2008,7

– Since the village level unit of the panchayati raj institution (PRI) in West Bengal is known as “gram sansad”, the term “gram sabha” shall be replaced by “gram sansad” for the purposes of this act and rules made thereunder (approval of the MOTA, government of India has been sought for).

– Forest Rights Committee (FRC) may be formed by the gram sansad…. In the FRC, representatives from the local forest and land revenue (LR) offices should be made permanent invitees.

(2) According to the P&RD department O rder No 1220/PN/O/1/1A-2/07 dated 17 March 2008,8

– Since Gram Unnayan Samiti has been constituted at the level of gram sansad, the FRC shall act as a functional committee under the Gram Unnayan Samiti.

– The chairperson and the secretary of Gram Unnayan Samiti shall act as the chairperson and the secretary of the FRC.

– The district panchayats and rural development officer of the district shall be included as a permanent invitee in the FRC.

This Memo and Order, however, create a great commotion among activists and intellectuals working for forest dwellers as it violates the first principle of the p rocess of recognition of forest rights through gram sabhas, replacing it with the gram sansad.

Gram Sabha vs Gram Sansad

Insofar as the FRA, 2006 is concerned, the “gram sabha” has been considered the b asic unit for recognition of forest rights. The act defines a gram sabha as the village assembly comprising all adult members of the village and the definition of the village includes the forest villages either as has been recorded or defined by the state FDs.9

On the contrary, the gram sansad, u nder the West Bengal Panchayat Act, 1973, has been defined as a body constituted with all the voters in a constituency of the gram panchayat. The constituency, however, may comprise several villages, depending upon the size of the voting population, even if they reside at a considerable distance from each other. As for e xample, in an extreme case, 11 remote and distant forest villages having a small population in the Buxa Tiger Reserve (East) divisions of Jalpaiguri district come under a single gram sansad, namely, the Buxa Road under the Rajabhatkhawa gram panchayat. Moreover, each gram sansad elects a member in the panchayat and that member in practice is concerned mostly about his own village, whereas the other villages have been neglected. Again in some cases when a candidate has been selected from outside the villages under the sansad on the basis of loyalty to a p­olitical party, the development of the v illages is often ignored at the cost of promoting the party agenda on a priority b asis. Hence, the role of the gram sansad, in practice, has never been to form or nurture a collective like village commons, rather to operate as a mechanism of a panchayat to identify people and discharge benefits to them under different developmental or poverty alleviation schemes of the government.10

Therefore, the gram sansad under the West Bengal Panchayat Act, 1973 cannot be equated with the gram sabha as defined under the FRA, 2006. The purpose and objective of both the units differ considerably from each other. Under the act, the gram sabha or village assembly has been given the authority to initiate the process for determining the nature and extent of individual and community forest rights as well as the responsibility to “ constitute committees for the protection of wildlife, forests and biodiversity”.11 Putting this concept of gram sabha or village assembly into practice would inspire them to form a political community duly aware of its rights and responsibilities at least at the village level, while cutting across the ethnic and religious boundaries. But the replacement of the gram sabha by the gram sansad in West Bengal brings the issue of settling forest rights merely under the formal process of functioning of PRIs, thereby, impeding the process of community formation.

FRC and Gram Unnayan Samiti

Besides, the Forest Rights Rules, 2007 states that a committee, namely, the FRC shall be constituted by an election of the gram sabha in its first meeting and the committee will decide a chairperson and a secretary amongst its members.12 But both the Memo and the Order (GOWB) cited earlier are unequivocal in violating the same as they prescribe formation of the FRCs at the gram sansad level and the committee has been placed under the purview of the Gram Unnayan Samiti (GUS). It is stipulated in the order that the members of the GUS will select the members of the FRC and the chairperson and the secretary of the GUS shall act as the chairperson and the secretary of the FRC. Accordingly, an elected member of the gram sansad will become the chairperson of the FRC by virtue of his/her position in the GUS no matter whether he/she has any relationship with the forests or not.

Meanwhile, according to the same rule under the FRA 2006, no government officials are allowed to be incorporated into the FRC, but both the Memo and the Order have been left with the provision for including government officials from the forest and land revenue offices along with the district panchayat and rural development officer in the name of being “permanent invitee” to the committee. All those provisions have not only reduced a full-fledged committee like the FRC into a subcommittee under the GUS, but also transformed its basic nature from a people’s committee to a partisan-bureaucracy-dominated, quasi-representative committee, working under the pulls and pressures of village level electoral politics.

JFM vs FRA

The negation of the act becomes obvious once again with the resolution by the state FD on 3 October 2008.13 The resolution reiterates the JFM programmes by renaming all Forest Protection Committees (FPCs) into JFM committees (JFMCs). The resolution takes into account the FRA, 2006 which recognises the responsibility and authority of tribals in conservation of biodiversity and maintenance of ecological balance and states that “Joint Forest Management Committees shall be constituted for the purpose of development of degraded forests and forests prone to forces of degradation” in the districts of north Bengal (excluding Darjeeling Gorkha Hill Council Area) along with Murshidabad, Nadia and Hooghly. The resolution is n othing but a bit of modification of the earlier JFM Resolution of 1991 as it has added 15% share of net sale proceeds of timber harvested at the time of final felling for its member, which was absent in the earlier resolution. The resolution, however, directly violates the act while authorising an extra-statutory body, namely, the JFMC for protecting forests, whereas Section 5 of the act provides the gram sabha and the communities a clear and precise power to conserve, protect and regenerate forests.

It is also contradicting the provision for various forest rights stipulated in Section 3 of the FRA, 2006, such as the ownership rights for minor forest produce in all forests including the protected areas like wildlife sanctuaries or national parks.14It has been reported from the Cooch Behar forest division (Wild Life-III) that to counter FRA, 2006, the FD keeps on intimidating the villagers about the withdrawal of the money allotted for development purposes unless new JFM committees are formed according to the department’s dictate. Actually after the introduction of the act, there is no legality of JFM as a mechanism of collaborative governance to protect the forests because the act does not leave any provision for collaboration b etween the FD and the forest villagers, instead it empowers the gram sabha to control and manage their own forests and the role of FD and other state authorities are expected to assist the gram sabha in that process.15

The Resistance

This faulty and biased implementation of FRA, 2006 has faced stiff opposition from the National Forum of Forest People and Forest Workers (NFFPFW), a platform organising a movement for ensuring the rights of the forest dwellers in north B engal along with the rest of the country, since 2001.16 Further, it played a positive role in lobbying at the national level to amend the Scheduled Tribes and Other Traditional Forest Rights (Recognition of Forest Rights) Bill, 2005 as well as to enact the FRA, 2006 in line with the major recommendation from the Joint Parliamentary Committee.

Hence, after the notification of the order dated 17 March 2008 by the principal secretary, P&RD, and the West Bengal g­overnment, the regional committee of NFFPFW placed a memorandum before the chief minister of the state on 26 March 2008, demanding an immediate withdrawal of the order violating the letter and spirit of the act. Consequently, it orga nised several demonstrations including s imultaneous gheraos of block offices throughout the region to suspend the i llegal process of FRC formation by the state authorities. In April 2008, it closed 10 government timber depots across north Bengal for more than one month.

Since then a number of movements have been taken up by NFFPFW to arrest the faulty implementation as well as to organise forest villagers at par with the provisions within the act. The programmes include mass petitions by the forest villagers at the block level, forest beatwise campaign to establish people’s control over the forest resources, and most importantly, the dissolving of gram sansad based FRCs and replacing them by gram sabha based FRCs. In this process, the movement formed a lmost 50 FRCs at the gram sabha level, while replacing corresponding FRCs at the gram sansad level till the end of 2009.

During this period the struggle was characterised by opposing initiatives between the FD and NFFPFW to implement the act. One after another gram sabha a reas of the forest communities while empowered by their newly formed awareness of the pro-people act, continued proclaiming their legitimate control over their forest resources across forest divisions in north Bengal. The process, however, found its greatest ever manifestation in January 2010, when The Telegraph reported on 7 January 2010 that

more than 500 forest dwellers took control of a 2,985 hectare forest tract on the outskirts of Jaldapara Wildlife Sanctuary by putting up a board on the Kodal Basti area under Coochbehar (Wildlife III) Division while announcing that no one would be allowed to conduct any activity in the area without the permission of a Gram Sabha they had formed…. The villagers celebrated the “take over” of the forest land by bursting crackers, smearing each other with gulal and cracking open coconuts.17

However, after a long struggle, the subdivisional officer of Siliguri and the d istrict magistrate of Jalpaiguri have admitted the legality of the FRCs formed at the gram sabha level under the leadership of the NFFPFW. Moreover, in a few specific cases they admit the role of the gram s abha practically.

However, these are exceptions and u nless the order is revised the gap b etween the FRA, 2006 and the Order/Memo still remains. Taking this fact into account, almost 40 gram sabhas in the f orest villages of Bengal under the leadership of NFFPFW along with Nagarik Mancha (Citizen’s Forum), Kolkata filed a writ petition against the state government in the High Court of Kolkata in June 2009.18 The case as well as the struggle is still going on. It is very early to predict the fate of the act in the state, but undoubtedly, it can be asserted that a new ideology and practice of forest governance by the communities is under the process of crystallisation in the region, which may in the long run replace the hegemonic claim of the FD over the forests.

Notes

    1    The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 came into force on 31 December 2007 followed by the notification of rules on 1 January 2008.

    2    See the notification in the web site of Ministry of Environment and Forests, Government of India (http://moef.nic.in/downloads/public-information/Notificati
on_FRA_Committee.pdf) viewed on 28 March 2010.

    3    See the status report of implementation in the web site of Ministry of Tribal Affairs, Government of India (http://tribal.nic.in/writereaddata/mainlinkFile/File1210.pdf) viewed on 3 March 2010.

    4    Section 5(a) of the act empowered gram sabha to “protect the wildlife, forests and biodiversity”.

    5    The act stated in the beginning (second paragraph) that “whereas the recognised rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forests while ensuring livelihood and food security of the forest dwelling Scheduled Tribes and other traditional forest dwellers”.

    6    All the forest villages in West Bengal concentrated in the three districts of north Bengal, namely, Darjeeling, Jalpaiguri and Cooch Behar. According to the State Forest Report, 2005-06, published by the government of West Bengal, Directorate of Forests, Kolkata, there are 170 forest villages in Bengal including 76 in Jalpaiguri, 91 in Darjeeling and remaining three in Cooch Behar districts.

   7    The memo was issued by the joint secretary to the government of West Bengal, Backward Classes Welfare Department and forwarded to the district magistrates of all the districts.

    8    The order was issued by the principal secretary to the government of West Bengal, Department of Panchayat and Rural Development (P&RD).

    9    According to the Section 2(p) (iii) of the Act, the definition of village includes “forest villages, old habitation or settlements and unsurveyed villages whether notified as villages or not”.

10         See the writing of M Thaha on “Planning For Gram Panchayats: West Bengal Model” available at (http://nird.ap.nic.in/clic/reshigh_2k_14.html) viewed on 2 March 2010.

11         See Section 4 (e) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.

12         See the Section 3(1) and 3(2) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.

13         See the Resolution No 5969 of the Forest Department, government of West Bengal (http://westbengalforest.gov.in/update_06-080-09 /5969_For_Dt._03.10.2008.pdf) viewed on 14 March 2010.

14         Section 3 of the act secures individual and community rights of forest dwelling schedule tribes and other traditional forest dwellers which includes right to hold and live in the forest land, community rights such as nistar, right of ownership, access to collect, use and dispose of minor forest produce, community rights for fishing in the water bodies and grazing, etc.

15         See Section 4 (3) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rule, 2007.

16         NFFPFW regional committee organised its first ever massive demonstration of 2,000 forest dwellers in Siliguri on 10 December 2001, the world human rights day, against all the “black laws” of the centre and state government, which tend to view forest dwellers as burden and denied even constitutional rights of land and livelihood to them.

17         See page 1 of The Telegraph, 7 January 2010, Kolkata. Available at (http://www.telegraphindia.com/archives/archive.html) viewed on 7 January 2010.

18         Constitutioal Writ Petition in the High Court of Kolkata (2009) WP NO 13635 (W) OF 2009.