Forest Rights Act in Himachal Pradesh

Hills and mountains by their very topography consist more of forests, grasslands, rocky or snowy landscapes than farmed areas. Animal rearing is one key activity to convert the wealth of vegetation into human-usable items like milk, hide, meat and wool. Collecting and using fuel wood, food like berries and mushrooms, medicinal plants, irrigation water and construction material from the landscape are survival techniques that make life possible in the mountains. As a result, the hill people are naturally dependent upon these ‘forest lands’ as much (or even more than) they are on farming for survival. Through forest settlement processes undertaken 150 to 60 years back, these uses of forest resources were recorded for each village and became the customary rights of its residents.

The Forest Rights Act which was passed by the Parliament of India in 2006, came into force on January 1, 2008. Under this act Scheduled Tribes and Other Traditional Forest Dwellers (communities dependent) on forest land of any description (including Undemarcated Protected Forests, Demarcated Protected Forests, Reserved Forests, shamlaat, charagah, wasteland, sanctuaries, national parks etc) for their ‘bonafide livelihood’ have been vested with individual, community and development rights that can be claimed through the provisions given with the act.

10 years of non-implementation of FRA in a state with 70% forest land

➢The Himachal Pradesh government implemented the Act only in scheduled (tribal) areas in 2008 and only in 2012-13 in the entire state.

➢The Non-committal attitude of the State Government was revealed by the letters written by the then Chief Minister to the then Union Environment Minister of State, stating that the rights of the forest dwellers have been ‘settled’ long back.

➢ This has been the stand of the State government up until now, evident in the objections raised by the official members of the District Level Committee of Kinnaur in a case where it rejected 47 claims of Lippa Gram Sabha in December 2018, saying that: “The forest rights have already been settled vide the revenue settlement process conducted in 1984 and the forest settlement of 1921. Hence individual claims are not recommended as per the provisions of the Act.”

➢ It was only in January 2016 when the State Government in an affidavit submitted to Supreme Court admitted that the FRA implementation in Himachal Pradesh shall start now from scratch.

➢ Since then around 17503 FRCs have been formed. Only 7 community claims in Bharmour; 53 individual claims in Dalhousie (Chamba) and 76 individual claims in Lahaul and Spiti region have been issued titles under the Act.

➢ 1900 cases have been sanctioned by the government under section 3(2) of the FRA 2006 for 13 development activities mentioned under this section.

➢ However, implementation of section 3 (1) on recognitions of Individual and Community Forest rights remains weak. Despite close to 70% of its geographical area under the category of ‘forest land’ state is amongst the worst implementors of the act in the country.

The need of FRA in Himachal Pradesh

The need for FRA implementation has been voiced from many quarters of the State – Kinnaur, Lahaul, Spiti, Chamba and Kangra. It has not turned into a popular demand across the state due to various reasons. Lack of awareness about the act may be one of the reasons but the more prominent cause is the government’s silence on the question of occupations on forest lands also called ‘najayaz kabza’ which needs to be settled.

How the three types of rights under FRA that apply in the State

a. Individual Forest Rights (IFRs):

Section 3(1) of FRA allow recognition of rights over forest land for agriculture and habitation for ‘bonafide livelihood’ needs (not just for subsistence purposes but also for earning an income).

• Thousands of landless people who have got land under nautod rules were not able to get final titles because of FCA 1980 in both tribal and non tribals.
• Customary records namely ‘Wazib-ul-Arz’ and ‘Naqsha-Haq-Bartan’, apart from community rights also recorded individual rights.
• Communities in Himachal also had right to break new ‘Shaamlaat’ land for agriculture called nautor. Due to Common Land Utilization and Vesting Act, 1974 vested all village wasteland to the State Government (initially the revenue department but later taken over for management by Forest Department). Thousands of people who had broken this land (claimed nautor) and were legitimate occupants of it, were overnight turned into encroachers on forest land evident in Jambandi documents where ‘najayaz kabzaa’ are visible across the state.
• In Simour many families living on forest land have no ownership in revenue recordsand do not even have a bonafideHimachali certificate. Some families occupying shaamlat land got the title over few biswas of land under the state government policy but many others with old occupations on ‘reserved forest’ land could not benefit under this policy.
• In Spiti where revenue settlement had happened in the late eighties there are also more than 1400 cases of najayaz kabza recorded in revenue records.

Failure of state governments 2002 Regularisation Policy: Making of Encroachments & Evictions

• In May 2002 Himachal Government formulated policy to regularize occupations on forest land in response to orders of Union Ministry of Environment & Forests to remove occupants from forest lands.
• More than 1.65 lakh people applied under the State regularization policy
• The policy could not be implemented due to restrictions imposed by Wildlife Protection Act 1972 and the Forest Conservation Act 1980
• Inability of State governments to provide relief to the occupants in the country led to passing of FRA by the Indian Parliament in 2006. Non-implementation of FRA in Himachal has made vulnerable those individuals who had filled forms of their occupations on forest land in 2002.
• Shimla High Court, in 2015 (CWP no:1028/2002) used affidavits filed by persons under 2002 regularisation policy of HP government to pass eviction orders. The court failed to consider the following provisions of the FRA in its eviction orders:
• FRA supersedes previous laws as far as recognition of rights is concerned. Thus, rights have to be recognised irrespective of the Indian Forest Act, conservation laws and the State laws like Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971.
• FRA recognizes the rights of forest dwellers through unconditional vesting of such rights on them. Without completing process of recognition and confirmation of rights, issuing a notice of encroachments under Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 is violation of section 4(1) of the Act.
• Section4(5) of the FRA 2006debars all possibilities of eviction of forest dwelling scheduled tribes or other OTFDs until the settlement of their forest rights has been carried out. The Supreme Court in the Niyamgiri Judgment (CWP No. 180 of 2011, dated April 18, 2013) established that unless the process of recognition and vesting of rights under FRA, 2006 is completed, no forest dweller can be evicted from the land they hold under occupation.

There is an urgent need to recognise that these forest land occupations, barring a few handful are not of large apple orchardists as has been portrayed. Infact, the evictions that have taken place, in Palampur, Paonta Sahib are of Dalit and marginalised families who had their habitations on forest land.

b. Community Forest Rights (CFRs):

Section 3(1) of the FRA includes 13 types of community rights from forest land including grazing, fodder, fuelwood, medicinal plants, cultural and spiritual uses etc

• While the Forest Settlement process in Himachal provided communities’ access to use forests but since these are ‘privileges and concessions’ they could be taken away anytime
• Vis-a-Vis community rights the Forest Conservation process allowed the ‘diversion’ of forests for large development projects by displacing these rights (bartandari)
• In National Park and Wild Life Sanctuary areas too, these ‘privileges & concessions’ were severely restricted because of the Wild Life Protection Act 1972.

The Union Ministry of Tribal Affairs issued a clear clarification in 2015 that the rights recorded under ‘Wajib-ul-Arj’ and ‘Forest Settlement’ will also have to be settled and recognised under the provisions of the Forest Rights Act 2006. Himachal has more than 1.5 lakhs pastoral families of Gaddis and Gujjars and medicinal plant collectors who are directly dependent on forest land for livelihood need to be provided these CFRs

c. Community Forest Resource Rights – Empowerment to manage and conserve forests

Section 3(1)(i) of the Forest Rights Act 2006 provides provides Community Forest Resource Rights under which the rights to protect, manage and conserve forest resources are recognized.

This is essential for a participatory approach towards forest conservation involving the communities having stakes on the forests.

d. Development rights

Includes rights of the Gram Sabha to provide consent to diversion of less than 1 hectare of forest land (involving felling of not more than 75 trees) for 13 types of village development activities.

• Close to 1900 cases of diversion of land have been cleared under section 3(2) of the act in Himachal Pradesh
• The state government has been implementing section 3(2) of the Act in absence of implementation of 3(1) where as the MoTA has clarified that section 3(1) and (2) need to move parallelly.

 Hinderances to FRA implementation in Himachal

• Bureaucratic misconceptions and bias with regard to application and eligibility of Act
• Lack of training of line staff: Members of FRCs, SDLCs and DLCs
• Unsupportive government staff and Lack of access to documentary evidence
• No funds earmarked for photocopying of documents and claim forms and the implementing agencies involved are showing a completely unsupportive attitude.
• Lack of awareness programs amongst community and fear of eviction among occupants

Resources

Handbooks, pahlets & Posters
A detailed Guide to FRA implementation in Hindi
Pamhlet 1
Pamphlet 2
Poster
Booklet on FRA

Training Manual prepared by Himachal Pradesh Government

Sample of individual forest right title issued in district Chamba 

Direction and Clarification
Directions issued by Ministry of Tribal Affairs

Minutes of State Level Monitoring Committee(SLMC) 

FAQs

Official Website of the Government of India on FRA
Official Website of the Government of Himachal Pradesh on FRA
Forest Rights Act: A Weapon of Democracy in the Forests

Videos
An Introduction to the Forest Rights Act
‘Development’ Projects and Forest Rights
Yeh Jungle Hamara

Video Series on ‘Process of Filing Claims under FRA’