Forest Rights Act
Context-ST Commission holds its ground on impact of new rules on Forest Rights Act
Forest Rights Act 2006
The Forest Rights Act, India or the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act is also known by other names like the Tribal Rights Act or the Tribal Land Act.
It deals with the rights of the communities that dwell in the forests (including Scheduled Tribes), over land and other resources, which have been denied to them over the years because of the continuation of forest laws from the colonial era in the country.
The act was passed in December 2006. It deals with the rights of forest-dwelling communities over land and other resources. The Act grants legal recognition to the rights of traditional forest-dwelling communities, partially correcting the injustice caused by the forest laws.
A large number of people especially the scheduled tribes have lived in and around forests for a long period in a symbiotic relationship.
This relationship has led to formalized or informal customary rules of use and extraction, often governed by ethical beliefs and practices that have ensured that forests are not too degraded.
During the colonial time, the focus shifted from the forests being used as a resource base for the sustenance of local communities to a State resource for commercial interests and development of land for agriculture.
Several Acts and policies such as the 3 Indian Forest Acts of 1865, 1894, and 1927 of Central Govt and some state forest Acts curtailed centuries‐old, customary‐use rights of local communities.
This continued even after independence till much later until the enactment of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Provisions of the Forest Rights Act:
- The Act recognizes and vests the forest rights and occupation in forest land in Forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD) who have been residing in such forests for generations.
- Forest rights can also be claimed by any member or community who has for at least three generations (75 years) prior to the 13th day of December 2005 primarily resided in forest land for bona fide livelihood needs.
- It strengthens the conservation regime of the forests while ensuring the livelihood and food security of the FDST and OTFD.
- The Gram Sabha is the authority to initiate the process for determining the nature and extent of Individual Forest Rights (IFR) or Community Forest Rights (CFR) or both that may be given to FDST and OTFD.
The Act identifies four types of rights:
Title rights: It gives FDST and OTFD the right to ownership to land farmed by tribals or forest dwellers subject to a maximum of 4 hectares. Ownership is only for land that is actually being cultivated by the concerned family and no new lands will be granted.
Use rights: The rights of the dwellers extend to extracting Minor Forest Produce, grazing areas, etc.
Relief and development rights: To rehabilitate in case of illegal eviction or forced displacement and to basic amenities, subject to restrictions for forest protection.
Forest management rights: It includes the right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.
Who can claim these Rights?
Members of the community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs.
It can also be claimed by any member or community who has for at least three generations (75 years) prior to the 13th day of December 2005 primarily resided in forest land for bona fide livelihood needs.
The Gram Sabha is the authority to initiate the process for determining the nature and extent of Individual Forest Rights (IFR) or Community Forest Rights (CFR) or both that may be given to FDST and OTFD.
- First, the gram sabha (full village assembly, NOT the gram panchayat) makes a recommendation – i.e who has been cultivating land for how long, which minor forest produce is collected, etc. The gram sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent.
- The gram sabha’s recommendation goes through two stages of screening committees at the taluka and district levels.
- The district-level committee makes the final decision (see section 6(6)). The Committees have six members – three government officers and three elected persons.
- At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees, and if they prove their case the right is denied (sections 6(2) and 6(4)).
- Finally, land recognized under this Act cannot be sold or transferred.
Constitutional Provision Expansion: It expands the mandate of the Fifth and the Sixth Schedules of the Constitution that protect the claims of indigenous communities over tracts of land or forests they inhabit.
Security Concerns: The alienation of tribes was one of the factors behind the Naxal movement, which affects states like Chhattisgarh, Odisha, and Jharkhand. The Act through identifying IFR and CFR tries to provide inclusion to tribes.
It has the potential to democratize forest governance by recognizing community forest resource rights.
The act will ensure that people get to manage their forest on their own which will regulate the exploitation of forest resources by officials, improve forest governance, and better management of tribal rights.
- Administrative Apathy
- Implementation of the act remains the biggest challenge as acts related to the environment are not entirely compliant with the law, illegal encroachments have happened as much as that claims have been unfairly rejected.
- As tribals are not a big vote bank in most states, governments find it convenient to subvert FRA or not bother about it at all in favor of monetary gains.
- Lack of Awareness
- Unawareness at the Lower level of forest officials who are supposed to help process forest rights claims is high and the majority of the aggrieved population too remains in the dark regarding their rights.
- The forest bureaucracy has misinterpreted the FRA as an instrument to regularise encroachment instead of a welfare measure for tribals.
Dilution of Act
- Certain sections of environmentalists raise the concern that FRA bend more in the favour of individual rights, giving lesser scope for community rights.
- Community Rights effectively gives the local people control over forest resources which remains a significant portion of forest revenue-making states wary of vesting forest rights to Gram Sabha.
- Reluctance of the forest bureaucracy to give up control
- There has been deliberate sabotage by the forest bureaucracy, both at the Centre and the states and to some extent by big corporates.
- The forest bureaucracy fears that it will lose the enormous power over land and people that it currently enjoys, while the corporates fear they may lose the cheap access to valuable natural resources.
Rough maps of community and individual claims are prepared by Gram Sabha which at times often lack the technical know-how and suffer from educational incapacity.
Intensive process of documenting communities’ claims under the FRA makes the process both cumbersome and harrowing for illiterate tribals.
There are a lot of bureaucratic hassles in the approval of claims. N.C. Saxena committee has also stressed on it. In the case of forest diversion, rights of tribals have not been defined in compensatory afforestation in the CAMPA Act.
Safeguards to ensure Forest Conservation
- Land title is given in the joint family.
- Land claim cannot be sold, rented, or leased.
- Land use can be restricted by the forest department.
- Land can only be inherited.
- The act is not applicable in reserved forests and national parks.
- An area can be declared Critical Wildlife Habitat where forest-related rights ceases to exist.
Towards reducing India’s prison footprint
Why promote Prison Reform?
- A sentence of life imprisonment deprives a person from his right to liberty.
- Imprisonment affects the prisoner and also his family living in poverty. When an income generating member of the family is imprisoned the whole family has to suffer and adjust to the loss of income. The family has to suffer financial loss because they have to engage a lawyer, arrange food for the prisoner, transport to prison to visit the prison etc.
- When a member of a family is imprisoned, the disruption of the family structure affects relationships between spouses, as well as between parents and children, reshaping the family and community across generations. Mass imprisonment produces a deep social transformation in families and communities
- Prisons have very serious health implications. There are some prisoners who are suffering from various diseases before entering to the prison or they get affected after coming in the prison. Hence, there is no healthy atmosphere in the prison.
- Almost all of the prisons are overcrowded with little or no fresh air supply.
Prison in India
The management and administration of Prisons falls exclusively in the domain of the State Governments, and is governed by the Prisons Act, 1894 and the Prison Manuals of the respective State Governments. Thus, States have the primary role, responsibility and authority to change the current prison laws, rules and regulations.
Major Issues of Prisons in India
Overcrowding: The country’s 1,412 jails are crowded to 114% of their capacity, with a count of 4.33 lakh prisoners against a capacity of less than 3.81 lakh until December 31, 2016, according to provisional figures cited by the government in Rajya Sabha. Similar figures have been put forth by National Crime Records Bureau (NCRB) in 2015. One of the primary reasons for overcrowding of prisons is pendency of court cases. As on March 31, 2016, more than three crore cases are pending in various courts, and two of every three prison inmates in the country are under-trials. Overcrowding affects the already constrained prison resources and renders separation between different classes of prisoners difficult.
Under-trials: As discussed above, more than 67% of the prisoners in India are under trials. The share of the prison population awaiting trial or sentencing in India is extremely high by international standards. For example, it is 11% in the UK, 20% in the US and 29% in France.
Corruption and extortion: Extortion by prison staff is common in prisons around the world. Given the substantial power that guards exercised over inmates, these problems are predictable, but the low salaries that guards are generally paid severely aggravate them. In exchange for contraband or special treatment, inmates supplement guards’ salaries with bribes. Powerful inmates in some facilities in India enjoy cellular phones, rich diets, and comfortable lodgings, while their less fortunate brethren live in squalor.
Lack of legal aid: Lawyers in India are poorly paid and are often over-burdened with cases. Further, there is no monitoring mechanism to evaluate the quality of legal aid representation in most states.
Unsatisfactory living conditions: Overcrowding itself leads to unsatisfactory living conditions. Moreover, prison structures in India are in dilapidated condition. Lack of space, poor ventilation, poor sanitation and hygiene make living conditions deplorable in Indian prisons. Mental health care has negligible focus in Indian prisons.
Shortage of staff: The ratio between the prison staff and the prison population is approximately 1:7. It means only one prison officer is available for 7 prisoners, while in the UK, 2 prison officers are available for every 3 prisoners. In the absence of adequate prison staff, overcrowding of prisons leads to rampant violence and other criminal activities inside the jails.
Torture and Sexual abuse: Prisoners are subjected to inhuman psychological and physical torture. Sexual abuse of persons in custody is also part of the broader pattern of torture in custody. The National Human Rights Commission observes custodial violence as “worst form of excesses by public servants entrusted with the duty of law enforcement.”
Custodial deaths: In 2015, a total of 1,584 prisoners died in jails. A large proportion of the deaths in custody were from natural and easily curable causes aggravated by poor prison conditions. There also have been allegations of custodial deaths due to torture.
Underpaid and unpaid labour: Labour is extracted from prisoners without paying proper wages.
Inadequate security measures and management: Poor security measures and prison management often leads to violence among inmates and resultant injury and in some cases death.
Condition of women prisoners: Women prisoners face number of challenges including poor nutritional intake, poor health and lack of basic sanitation and hygiene. There are also alleged instances of custodial rapes which generally go unreported due to the victims’ shame and fear of retribution.
Discrimination: According to Humans Rights Watch, a “rigid” class system exists in the Indian prisons. There is rampant corruption in the prison system and those who can afford to bribe, often enjoy luxuries in prison. On the other hand, socio-economically disadvantaged prisoners are deprived of basic human dignity.
Lack of reformative approach: Absence of reformative approach in Indian prison system has not only resulted in ineffective integration with society but also has failed to provide productive engagement opportunities for prisoners after their release.
Measures taken by the Government
Modernization of Prisons scheme: The scheme for modernisation of prisons was launched in 2002-03 with the objective of improving the condition of prisons, prisoners and prison personnel. Various components included construction of new jails, repair and renovation of existing jails, improvement in sanitation and water supply etc.
E-Prisons Project: The E-Prisons project aims to introduce efficiency in prison management through digitization. The E-prisons project supplements the Prisoner Information Management system (PIMS) which provides a centralized approach for recording and managing prisoner information and generating different kinds of reports. The PIMS records Prisoner’s basic details, family details, biometrics, photograph, medical details, prisoner case history, prisoner movements, punishment details etc. The availability of these details on an electronic platform will be useful to track the status of prisoners and smooth functioning of the prison system.
Model Prison Manual 2016: The manual provides detailed information about the legal services (including free services) available to prison inmates. The Ministry of Home Affairs has issued an advisory to all States and UTs informing them about the legal aid facility available to under-trial prison inmates.
National Legal Services Authority: It has launched a web application recently to facilitate the under trial prisoners with free legal services. The objective of the above application is to make the legal services system more transparent and useful. All authorities will be able to monitor the provision of legal aid to prison inmates. This will ensure that no prisoner goes unrepresented, right from the first day of his production in the Court.
Draft National Policy on Prison Reforms and Correctional Administration: Its key provisions include:
- Amending the Constitution to include principles of prison management and treatment of under trials under DPSP and including prisons in concurrent list.
- Enactment of uniform and comprehensive law on matters related to prisons.
- A department of Prisons and Correctional Services to be opened in each state
- State shall endeavour to provide alternatives to prisons such as community service, forfeiture of property, payment of compensation to victims, public
- State shall improve the living conditions in every prison and allied institution.
Major Committees and their Recommendations
Various Committees and Commissions have been constituted by the State Governments as well as the Government of India to study and make suggestions for improving the prison conditions and administration.
All India Prison Reforms Committee, 1980 (Mulla Committee):
The Government of India set-up this Committee with the basic objective to review the laws, rules and regulations for protecting society and rehabilitating offenders. The Mulla Committee submitted its report in1983. The major recommendations of the committee included:
- The setting up of a National Prison Commission to oversee the modernization of the prisons in India
- Putting a ban on clubbing together juvenile offenders with the hardened criminals in prison and enacting a comprehensive and protective legislation for the security and protective care of delinquent juveniles
- Segregation of mentally ill prisoners to a mental asylum
- The conditions of prison should be improved by making adequate arrangements for food, clothing, sanitation and ventilation etc.
- Lodging of under trial in jails should be reduced to bare minimum and they should be kept separate from the convicted prisoners
Krishna Iyer Committee, 1987:
The Government of India set-up this Committee to undertake a study on the situation of women prisoners in India. It has recommended induction of more women in the police force in view of their special role in tackling women and child offenders.
Justice Amitava Roy panel, 2018:
- Supreme Court’s newly constituted Justice Amitava Roy panel will look into various matters including over-crowding in prisons and the issues concerning women prisoners. The apex court on August 27, 2018 had reserved its previous order on the issue of constituting a committee to deal with issues pertaining to jails and suggest reforms.
- The Supreme Court had taken a strong exception to overcrowding of jails across the country and said prisoners also have human rights and cannot be kept like “animals”. The SC had earlier passed a slew of directions over unnatural deaths in jails and on prison reforms across India.
The Maharashtra government and Azim Premji Philanthropic Initiatives Pvt Ltd have signed a MoU recently with an aim to work together to design, implement, monitor and document a model programme to provide legal help to prisoners, especially under-trials.
The initiative aims to help under-trials, who on merit, deserve bail, pending disposal of their cases. It would also help unburden prisons that have inmates 30 per cent more than their actual capacity. The state government has also entered into a partnership with Tata Trusts to provide social workers in prisons.
- The issue of overcrowding in Indian jails requires an immediate attention. Sincere efforts should be made to improve living conditions which include better sanitation and hygiene, adequate food and clothing.
- Efforts should be made to reform offenders in the social stratification by giving them appropriate rehabilitation and correctional treatment. Initiatives should be taken to impart vocational training to prisoners and ensure proper rehabilitation and social inclusion after release.
- The government must take initiative to improve the conditions of under-trial prisoners which can achieved by speeding of the trial procedure, simplification of the bail procedure and providing effective legal aid.
- It is also important to address the issue of inadequate prison management by recruiting more prison staff, imparting proper training and undertaking modernization of prisons.
- Issues related to custodial violence and sexual abuse should be dealt with effective monitoring and stringent punishments of those involved in such violence.
- The concept of open prisons should be encouraged more as a correctional facility.
Prisons’ constitute important institutions which protects the society from criminals. The obstacles in prison reforms are resource allocation, deterrent functions of punishment, notion of rehabilitation, and internal control.
To improve prison conditions does not mean that prison life should be made easy, it means, it should be made humane and sensible.