Key hurdles in implementing Forest Rights Act in Gujarat: Experience from the ground

fraThe report “Forest Rights, Legal Wrongs: Grassroots Realities and the Forest Rights Act (FRA), 2006 in Gujarat”, published by the IDEAL-Centre for Social Justice, Ahmedabad, outlines implementation of FRA across 10 villages in Meghraj and 15 villages in Dang over the past 2 years. Excerpts:

Since March 2008, the Government of Gujarat had begun issuing forms A and B under the Forest Rights Act (FRA) – forms required for filing claims of Individual Forest Rights (IFRs) and Community Rights (CRs, such as wells, temples, graveyards, etc.). Simultaneously, Sub-Divisional Committees (SDLCs), District Level Committees (DLCs), and village-level Forest Rights Committees (FRCs) were set up with such speed and intent that, by 2009, the FRCs were in advanced stages of verification of IFR claims.

But at this initial stage itself, the Government of Gujarat asserted that only about 10% of claims for recognition under the Act were valid. Considering most claims at this point of time (in 2009-10) had not even moved beyond FRC verification, the assertion was dubious at best, and sinister at worst. Such statements did portend a difficult implementation process.

Up until 2013, several dilutions were made to the implementational framework of FRA that resulted in widespread disentitlement. The cut-off year – the year on which a prospective claimant must prove possession – was changed to 1980 from 2005, reflecting the extant position under a Government Resolution made in 1993 to regularise forest land holdings. Alongside this, a strict adherence to government-record-backed evidences for IFR claims meant that by April 2010, only 17,000 of a total 182,000 IFR claims were accepted.

Thereafter, increasing reliance began being placed on the use of satellite imagery as a means to establish possession/use of forest land. This process was itself fraught with hurdles. Satellite images were little to no help in identifying cultivated land in forests, and poor resolution mixed with hasty, careless assessment led to widespread rejections.

By June 2011, a further 19,000 claims were approved, while close to 113,000 claims were rejected. Such a haphazard and lackadaisical approach was bound to face challenge in the Courts. In 2013, the Gujarat High Court pronounced a momentous judgement, ordering the state to reexamine all rejected claims for IFRs and striking down the unfair reliance on satellite imagery as proof of possession.

Despite this scathing indictment of state apathy, the implementational machinery remained steeped in inertia. In fact, the implementational machinery moved beyond simple inertia and toward active violations of the law, accompanied by the curbing of any communitarian voice that attempts to demand accountability.

That is not to say that judicial pronouncements have had no impact – in the aftermath of the 2013 judgement, the government approved a further 84,540 claims of forest land as far as 2016 – but the spirit in which the judgement was delivered has not filtered into the implementation of FRA. Several thousand claims that were approved upon reexamination were granted rights over a tiny fraction of the land claimed (and indeed, over the land in possession). Several were also rejected once again, often on baseless and illegal grounds.

Key lapses in implementing FRA

Consistent community engagement revealed several key lapses in the implementation of FRA in Dang and Meghraj. What emerged were also deep-rooted institutional and policy concerns. Such concerns manifested themselves in specific issues in the passage of claims, such as the ones we highlight below. At the same time, emerging specific illegalities in the rejection of claims resulted in the recognition of further institutional/policy gaps and shortfalls that needed to be remedied.

Through extensive field visits, campaigns and legal camps, the Centre for Social Justice (CSJ) identified several specific illegalities in the process of filing of claims, their verification and their approval/rejection.

Rejection on account of being a government servant:

Across Meghraj, 128 claimants have had IFR claims rejected on account of being government servants. Crucially, this reason for rejection has also extended to those claimants whose parents or other family member is a government servant. This is in contravention of Section 3(1) of the FRA which confers a right to self-cultivation for bona fide, livelihood needs.

There is simply no credible basis to establish that a government servant’s family, or indeed herself, does not depend on agriculture as a vital means of livelihood security. Despite this, the Meghraj SDLC has rejected claims to IFRs – importantly, even after the High Court of Gujarat in its 2013 judgement ordered DLCs to re-examine all claims.

Rejection on account of submitting no evidence supporting the claim:

In Dang, several claimants have had their claims rejected at the SDLC on account of producing no evidence of occupation/cultivation supporting their claims. CSJ’s interactions with such claimants and examination of copies of claims they have submitted revealed that the required evidences as per the provisions of the FRA Rules, 2008 were indeed submitted with the claim.

The SDLC had summarily disregarded these evidences in arriving at its decision. Rule 13 of the FRA Rules makes it clear that any claimant must submit any two of a list of valid proofs of occupation/cultivation in support of their claim. The claimants CSJ engaged with had submitted – almost uniformly – significantly more than 2 documents as evidence. This particular issue is also closely linked with others, since the very meaning of appropriate evidence as defined by the SDLCs in practice (as opposed to the law in principle) has meant that even legally valid evidence of occupation/cultivation is in practice deemed invalid.

Rejection on account of not producing fine receipts:

In both Meghraj and Dang, CSJ engaged with claimants who had their claims rejected – including on appeal – on account of not possessing fine receipts issued by the Forest Department for encroachment on forest land. The receipts themselves are constitutive evidence of forest land possession/cultivation but are not the only – or the primary – evidence for the same. In several parts of Gujarat – including in Dang and Meghraj, forest department officials often do not issue receipts for fines levied, since that allows them to keep the quantum of money for themselves.

In Dang especially, several claimants did not possess fine receipts and that became the sole ground for rejection. In most cases – on account of the 2013 Gujarat High Court judgement – the lack of a fine receipt was not mentioned explicitly on the rejection letter, but instead was couched in other terms, such as there being no evidence produced to support the claim. The primacy given to fine receipts was only discovered through discussions with the DLC at the appeal stage.

Rejection on account of no recent evidence of cultivation:

The FRA was designed not as a land redistribution scheme (as it is often misrepresented), but as a legislation to recognise rights already held. There is thus a historicity intrinsic to the Act itself. As a result, the provisions establish that in order to be valid, any claimant must establish possession of forest land prior to the 13th of December, 2005. The law, thus, does not require claimants to establish cultivation at a more recent point in time.

It is merely to be established that the claimant was in possession of the claimed land in 2005, whether such land is cultivated thereafter is not of significance. Indeed, to establish a bonafide livelihood need evidence of cultivation/occupation of the land is necessary. But, in practice, the latter is rejected on account of not producing any recent evidence of cultivation; this despite providing evidence of possession of land in 2005, and of cultivation of land at that time (through photographs), along with a host of other forms of evidence.

In arguendo, even if evidence of recent cultivation is required/mandated, common sense dictates that such evidence must be gathered at a time when cultivation is underway. In CSJ’s experience in Dang, photographs of claimants’ land are taken during the summer months when land is left fallow. This is also evidenced from identifying nearby flora (such as particular kinds of trees) in such photographs. There is thus no visible cultivation on the land, and consequently, claims are rejected.

Rejection on account of purportedly not being in possession of land claimed:

Across Meghraj and Dang, scores of claims have been rejected because the claimant is purportedly not in possession of land claimed. The logic behind such rejections closely mirrors the logic underlying the issue of evidence of recent cultivation. The fact of possession (or dispossession) is determined merely by assessing whether the land claimed is cultivated.

Thus, satellite images (though these are of decreasing relevance after the Gujarat High Court’s judgement in 2013) and photographs of the land taken during periods of time when it is left fallow are constituted as indicating that the claimant is not in possession. This is a serious illegality since the procedure for taking photographs and assembling satellite maps is coordinated by the forest department and the DLC respectively. Both of these, especially the forest department, hold strong vested interests in whether claims get approved or not.

Inordinate delays and pendency in claims:

Even where “legitimate” claims have been filed and approved by Gram Sabhas, the process of vesting has not been smooth. Indeed, this is not limited to “legitimate” claims, since establishing legitimacy is itself the outcome of disposal by the DLC. Across the villages where CSJ’s work is situated a huge majority of claimants have heard nothing on the status of their claims. While a lack of access to information is a part of this, the real issue lies in the gross delays in disposal by the SDLCs and the DLCs.

Claimants are left in the dark because a decision on their claim simply hasn’t been taken. Concerns over pendency have been exacerbated by the 2013 judgement of the Gujarat High Court. The large majority of pending claims are awaiting disposal at the DLC level. Interestingly, in CSJ’s experience, such delays on part of district and block-level authorities are condoned while even marginal delays by claimants themselves result in disentitlement.

Extensive delays also result in the fact that notices – if and when they are issued – are sent by post to the claimant only a day prior to the expiry of the statutory appeals period. This in effect debars the claimant from her right to appeal, forcing her to file – alongside her appeal – an application for condonation of delay. These condonation applications are decided at the discretion of the DLC, meaning that the claimant’s right to appeal is reduced to a mere request.

Similarly, in Dang, CSJ identified that claimants would receive notices (of rejection) during periods of time when the local population would migrate to Maharashtra in search of labour. This once again disentitles the claimant, making her dependent on the “leniency” of the DLC to have her appeal heard. Such experiences do question the fundamental assumption behind delays and pendency, moving from a logic of administrative ineptitude to administrative strategy.

Occupation of claimed lands under the Compensatory Afforestation Fund Act, 2016:

Issues of pendency before the DLC could, in principle, be repudiated by pointing to the lack of human resource and infrastructural capacity to handle the large number of IFR claims. But, this line of argument ceases to carry any weight when we move beyond isolated principled positions. Across Dang, and in a few villages in Meghraj, the implementation of the FRA (itself prolonged inordinately) has come into conflict with the implementation of the Compensatory Afforestation Fund Act (CAFA), 2016.

Afforestation activities by the Forest Department have been initiated and carried forward at break-neck speed. This has naturally meant the disentitlement of forest-dependent communities. In Dang, scores of claimants have complained of the Forest Department encroaching their fields for afforestation activities. Forest guards have been responsible for the destruction of standing crop, fencing of agricultural lands and digging holes to plant saplings. All these activities are being carried out on land claimed under the FRA and is in clear violation of Section 4(5) of the FRA.

Two connected issues begin to develop here, the pendency of claims as a means to disentitlement, and the lack of a legislative-administrative structure that brings consonance between disparate legislations pertaining to the same geographic-political subjective landscape. We delve into these later.

Service of eviction notices from land on which claims were unduly rejected:

Several claimants who CSJ continues to support have received notices demanding they evict themselves from the land to which their claims under the FRA have been rejected. These notices – that are received by claimants within days of their claims being heard at the DLC – demand dispossession within 15 days. Failing to do so, would result in a forcible evacuation. The issue of such a notice is itself in violation of the law.

Section 4 (5) of the FRA makes it abundantly clear that, no claimant can be evicted/dispossessed of their lands, until the procedure for verification is complete. While ostensibly an order of the DLC rejecting a claim does indicate that the procedure of verification of claims is complete, the same does not hold true when we account for contextual factors that have a bearing on the verification process. In Dang, hearings at the DLC were – and are – conducted in a summary manner with no time given to claimants to state their case.

In such an instance, Section 7 of the FRA does provide a remedy to claimants and other aggrieved by appealing against such negligence of the law to the State-Level Monitoring Committee. Thus, the process of verification continues till the Monitoring Committee issues an order. In this light, the eviction notices issued by the DFO, Dang remain in violation of the law.

Non-recording of recognised rights into revenue records:

Where claims have been approved, there has been a glaring gap in actualising the rights vested. Orders of the DLC recognising rights are issued uniformly, but such rights over the land are – in most cases – not transmuted onto revenue records. In the small number of cases where revenue record reflects newly recognised rights, they do so incompletely.

That is, several hundred right-holders names are reflected as owners over the same compartment number. The delimitation of boundaries within each compartment number – and more fundamentally, the entry of rights vested into the revenue record – are of crucial importance because several state-run welfare schemes (especially those for agricultural entitlements) are designed and apportioned based on a criterion of one beneficiary for each survey number. Naturally, this results in widespread disentitlement and conflict.

Rejection of claims of single women and widows:

Among communities in Dang and Meghraj, filial bonds remain strong. This often results in daughters not receiving a share in the property of their maiden homes on account of the fact that they receive a share in their husband’s property upon marriage. The brother of a woman’s mother (called the Mama) plays a crucial role here. Being the man at her maiden home, and thus the de facto owner of family land, he is closely involved in the nexus that denies ownership to single women and/or widows.

Conventionally, the woman is given a series of gifts – each far lower in value than her right to a share in the land – that are understood to be in lieu of her share in family property. This in itself amounts to a gross disentitlement of women, however, in cases where such a husband dies, or where the woman remains unmarried, complications arise that result in further disempowerment.

Single women have – as CSJ identified – faced significant hurdles in ensuring their rights over forest land are recognised. This occurs in two ways. Firstly, widows cannot claim rights over the forest land that they possess (that was jointly held with their husbands) since rights over the same parcel of land are claimed by (and in many cases vested in) relatives of her deceased husband such as an uncle or a brother.

Similarly, single women are also thus disentitled owing to the fact that land under their possession is claimed by one of her male relatives, most often the Mama. This occurs because revenue records do not bifurcate ownership. Shares in property are not recognised within the revenue record and the names of all right-holders are written together. Thus, where the Mama files a claim to forest rights, the single woman/widow is precluded.

Additionally, where rights have been recognised, the records formulated do not bifurcate land holdings. That is, several rights-holders have their names registered on the same parcel of land. This is not to say that there exist competing claims, but that each right-holder enjoys rights over a part of the given parcel of land. This further disentitles single women/widows since land records where their names occur alongside the names of her relatives make it impossible for her to claim her rights independently.

Women are strongly discouraged to file claims and where they do file claims, conflicts arise as the two claims over the land compete for legitimacy. The statutory mandate to record the names of both spouses in the Record of Rights over forest land has largely been followed in practice, as CSJ’s own experiences show. But, this distinct facet of the disentitlement of women from land that they own and possess remains unaddressed.

Download full report HERE

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