C.R. Bijoy is the foremost independent researcher and activist primarily involved with indigenous peoples’ struggles, such as the Campaign for Survival and Dignity, a coalition of mass organisations that emerged to counter the nationwide repression unleashed on forests and forest peoples. He has been involved with the implementation of the Forest Act and has been working to safeguard the rights of Tribal and Other traditional forest dwellers for decades.
Bijoy says that it isn’t the government but the village committees that hold the entire power under the Forest Act. This means that the exercise that the J-K government has announced till the Forest Act is implanted in March 2021 is in contravention of the main goal of the Forest Act. The government had to form the village committees of people living on or around forest lands and let them start and carry out the exercise. Here is what C. R. Bijoy has to say:
Forest Governance: Changing Roles
Powers and Functions of The Gram Sabha or village committee.
The Gram Sabhas of the villages or village committee having forests as land use or in the fringes of forests whose inhabitants use forests for their livelihood are now the authorities by law to govern the forests that fall within their jurisdiction. Their roles and functions under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the Wildlife Protection Act 1972 as amended in 2006, and various related orders and circulars of Ministry of Tribal Affairs and Ministry of Environment and Forest are given below.
1. Identify and Constitute Villages
Gram Sabha [Sec.2(g)] is to pass the list of hamlets or habitations, unrecorded or unsurveyed settlements or forest villages or taungya villages, which are not formally part of any Revenue or Forest village record, prepared by the panchayat[Rule 2A] as ‘villages’ [Sec.2(p)] for the purpose of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (in short Forest Rights Act or FRA). In the case of Particularly Vulnerable Tribal Group, even if their village is not settled and is floating, these are also to be recognized along with their Gram Sabhas [Rule 12B(1)]. FRA ‘applies to Municipal areas…Mohalla Sabha can be constituted as equivalent to the Gram Sabha for the purpose of Forest rights Act’.
For any decisions and resolutions to be passed by the Gram Sabha, the quorum of the Gram Sabha meeting is to be one-half or more of all the members of such Gram Sabha of which one-third has to be women. When the Gram Sabha is deciding on the claims to rights, the Gram Sabha is to ensure that at least half of the claimants or their representatives are present in such Gram Sabha meetings. A simple majority of those present and voting is required for the Gram Sabha to take decisions or pass any resolutions in order for them to be valid.
3. Determine Rights
Gram Sabhas are the authorities under the Act ‘to initiate the process for determining the nature and extent of’ individual and community rights’ [as provided under Sec.3(1)] on all ‘forest lands’ which are ‘any area recorded as forest in the Government record irrespective of ownership’ and includes National Parks, Wildlife Sanctuaries, Tiger Reserves etc, ‘receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claims’, passing resolution recommending claims and forwarding them to the Sub-Divisional Committee [Sec.6(1)]. The Gram Panchayat Secretary shall act as the Secretary of the Gram Sabha [Rule 11(6)].
Constituting Forest Rights Committee (FRC): The first Gram Sabha meeting is to be convened by the Gram Panchayat. The forest rights committee (FRC) is to be constituted in this meeting with 10 to 15 persons of whom two-thirds are to be Scheduled Tribes and at least one-third should be women [Rule 3(1)]. The Gram Sabha is to intimate the Sub-Divisional Committee (SDLC) the details of the persons decided by the FRC to be its chairperson and secretary [Rule 3(2)].
Obtaining information and filing of claims: The Gram Sabha is to request and obtain necessary assistance from the various authorities of the State [Rule 4(3)]. The Gram Sabha or its FRC can request the Sub-Divisional Committee (SDLC) in writing to provide information on the Forest Rights Act, flora and fauna that need to be protected, the forest and revenue maps, electoral rolls and any records or documents, prior recorded rights and also request for any clarifications [Rule 6(a) and (b); Rule 12(4)].
The Gram Sabha is to call for its members to submit claims[Rule 4(1)(a)] in the forms provided in Annexure-I of the Rules within 3 months. This period can be extended further by the Gram Sabha as required [Rule 11(1)(a)]. The Gram Sabha shall also consider claims of pastoralists, transhumant and nomadic communities that fall within the traditional and customary boundary of the village which may be assisted by the DLC [Rule 12B(2)]. There are no deadlines or time limits for filing of claims.
Verification of the claims: The Gram Sabha shall forward the claims and evidences it received from its members to the FRC. The claimants are Scheduled Tribes or other traditional forest dwellers (any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs. ‘who are not necessarily residing inside the forest but are depending on the forest for their bona fide livelihood needs’. It shall consider more than one of the evidences [Rule 13(3)] listed in Rule 13(1) and (2) while deciding on the claims. It shall ensure that the FRC acknowledges the receipt of claims in writing [Rule 11(2)(i) and Rule 11(3)] to the claimant, keeps a record of these claims [Rule 11(2)(ii)], make a list of the claimants [Rule 11(2)(iii)], verify the claims [Rule 11(2)(iv)], and present its findings and recommendations to the Gram Sabha [Rule 11(2)(v) and Rule 12(2)].
Community Forest Resource: The Gram Sabha shall also ensure that the FRC prepares claims on community rights in Form B and Community Forest Resource (CFR) rights in Form C [Rule 11(4)]. The Gram Sabha is to ensure that the FRC demarcatesthe customary boundary of the Community Forest Resource with other members of the Gram Sabha who is knowledgeable about this [Rule 12(1)(f)] and make a map which is then to be approved by the Gram Sabha [Rule 12(1)(g)]. When the Gram Sabha is to decide on the Community Forest Resource rights [under Sec.3(1)(i)], it should inform the date to the adjoining Gram Sabha/s and the SDLC if there is or there could be an overlap of the area claimed with that of the adjoining village [Rule 11(1)(b)]. Normally all villages would have Community Forest Resource (CFR). So all the concerned Gram Sabhas shall ensure that a claim for CFR is made under Sec.3(1)(i). If for any reason, any village does not claim CFR, then the District Collector is to record the reasons for this [Rule 12B(4)].
Conversion of forest villages to revenue villages: All villages with no revenue lands are treated as forest villages. All such villages are to be converted to as revenue villages. The District Collector also has the responsibility to initiate this. The Gram Sabha of such forest settlement or habitation, or their FRC is to define the boundarys of their village, draw a map giving details of land uses, pass resolution for conversion into revenue village and forward the resolution to the SDLC.
Decision-making by Gram Sabha: The Gram Sabha is to maintain records of the claims and claimants [Rule 4(1)(b)]. On receiving the report of findings from the FRC, the Gram Sabha shall announce its meeting to consider the recommendations of the FRC and pass appropriate resolutions in the Gram Sabha meeting. These resolutions are to be sent to the SDLC [Rule 11(5)]. While doing so, the Gram Sabha is to give opportunities to interested persons and authorities to comment about the claims being considered by the Gram Sabha [Rule 4(1)(c)]. If the Gram Sabha modifies or rejects the claim, then this is to be informed to the claimant within 60 days or a maximum of 90 days of the Gram Sabha decision [Rule A(3)]. If the claim of any FRC member is being verified, then that member should not participate in the verification proceedings [Rule 3(3)]. The FRC is not to reopen any claims which have already been decided upon prior to the 2012 amendment of the Rules [Rule 3(4)].
In case there are conflicts with other Gram Sabhas in the region related to claims on the community rights or Community Forest Resource Rights, the FRCs of the concerned Gram Sabha/s are to meet and jointly prepare their findings for the consideration of the concerned Gram Sabhas. If the Gram Sabhas are still not able to resolve the matter, they can then request the Sub-Divisional Committee (SDLC) to hear and adjudicate the disputes [Rule 12(3) and Rule 6]. The SDLC can call for a meeting of the concerned Gram Sabhas to resolve the dispute and pass appropriate orders [Rule 14(7)].
4. Modification/rejection of claims and grievances
The Gram Sabha shall reconsider the Gram Sabha approved claims returned by the SDLC or the DLC for re-consideration[Rule 12 A(6)]. In case the Forest or Revenue Department returns the Gram Sabha approved claims because they did not attend the field verification carried out by the FRC, then the Gram Sabha is to get a re-verification done by the FRC. The FRC is to re-verify the same and inform the Forest or Revenue Department of the date of the second field verification. If the concerned representative of the department does not attend then the Gram Sabha decision is final [Rule 12 A(2)]. When the Gram Sabha receives a grievance petition related to its resolutions which is referred by the SDLC, the Gram Sabha is to hear the petitioner and pass a resolution on the petition within thirty days of receipt of the petition from SDLC [Rule 14(1), (2), (3), (4) and (5)]. If the grievance is about the decision of the SDLC, at the initiative of the DLC, the SDLC is to hear the petitioner and the Gram Sabha, and take a decision which is to be sent to DLC for appropriate orders [Rule 15(4) and (5)].
If the Gram Sabha modifies or rejects any claims, it should inform the claimants the reasons for such modification or rejection. The Gram Sabha should ensure that SDLC or DLC informs the detailed reasons for any modification or rejection of any Gram Sabha approved claims to the claimant, whether individual or community or Gram Sabha [Rule 12 A(10)],including when the SDLC approved claims with or without modifications are rejected by the DLC [Rule 12 A(7)].
Receipt of titles: The Gram Sabha is to receive a certified copy of the record of forest rights and title under the Act from the DLC in the format provided in Annexures II and III to the rules and that of community forest resource [under Sec.3(1)(i)] as specified in Annexure IV to the rules. The Gram Sabha is also to ensure that the claimants too have received certified copy of the record of forest rights and title to their approved claims [Rule 8(h) and (i)]. The Gram Sabha is to ensure that the information on the status of all the claims made are available at the village.
5. Establishment of Public Facilities
The Gram Sabha is the authority to determine and recommend diversion of forest land for establishment of thirteen different type of public facilities in the village as listed under Sec.3(2) of FRA. The land that can be diverted shall be up to 1 hectare per project and involving felling of a maximum of 75 trees per hectare [Sec.3(2)]. The user agency or the concerned department can submit the proposal for the project only after receiving the recommendation of the Gram Sabha for diversion of forest land.
6. Protection, Conservation and Management of Forests
Gram Sabhas are empowered to (a) protect the wild life, forest, biodiversity, adjoining catchment areas, water sources and other ecological sensitive areas, habitats from any destructivepractices; and (b) regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with. [Sec.5]. The Gram Sabha is to constitute committees under Rule 4(1)(e) to protect wildlife, forest and biodiversity. This Committee works under the control of the Gram Sabha. This committee is to prepare conservation and management plan of Community Forest Resource (CFR) which has to be demarcated for all villages and recognised so that these resources are available for sustained enjoyment of community on an equitable basis. The plan made by this Conservation and Management Committee is to be approved by the Gram Sabha [Rule 4(1)(g)] and is to be incorporated by the Forest Department into their working or management plan [Rule 4(1)(f)].
Minor Forest Produce: The Conservation and Management Committee constituted by the Gram Sabha under Rule 4(1)(e) is to make decisions on transit permits, and use of income from the sale of forest produce [Rule 4(1)(g)]. This Committee is to issue transit permit for transportation of minor forest produce [Rule 2(1)(c)].
7. Inviolate areas and resettlement
Gram Sabha is to give ‘free informed consent’ in writing on the proposed resettlement package [Rule 4(1)(d) of FRA and Sec.38V(5) (v) and (vi) of WLPA] ‘that provides a secure livelihood for the affected individuals and communities‘ when ‘critical wildlife habitats of National Parks and Sanctuaries’ are being created ‘for the purposes of creating inviolate areas for wildlife conservation’ under the the Wild Life (Protection) Act, 1972. In the case of the Critical Tiger Habitat, the area is to be identified ‘with the consent of the Scheduled Tribes and other traditional forest dwellers in the area’ [Sec.38 V(5)(ii) of WLPA 1972 as amended in 2006]. This has to be carried out only after the forest rights are recognized in these areas and after the government ascertains that ‘other reasonable options, such as, co-existence are not available’ [Sec.38 V(5) (iii) of WLPA, and Sec.4(2) and Sec.4(5) of FRA]. Further, the Gram Sabha is to consider the proposal for constituting the buffer area of the Tiger Reserve when the government authorities carry out the mandatory consultation with the Gram Sabha for constituting the buffer area [Sec. 38V(4)(ii) of WLPA].
8. Action Against Offences
Gram Sabha is to pass ‘a resolution’ ‘against any authority’ [Sec.8] and give notice to the State Level Monitoring Committee (SLMC) giving them sixty days notice to proceed against the official found to be violating any provision of the Forest Rights Act and its Rules which is an offence [under Sec.7]. If the complaint is against the Gram Sabha, then the complainant is to issue notice to the SLMC for action. On expiry of sixty days and if SLMC does not take any action, then the Gram Sabha or the complainant can file a case in the court. Further, any dispossession of any forest rights of an ST or SC forest dweller without consent, by threat or fabricated records is a crime under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 as amended in 2014. Complaints can also be filed under this law for any dispossession of forest rights.
9. Diversion of Forest Land for Non-Forest Purposes