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10 Tribals and forest rights in India
A critical appraisal of the legal
literature
Kumarjeeb Pegu1

Abbreviations
C.E.C. Central Empowered Committee Report
DLC District-level Committees
DoE Department of Environment & Forests, Assam
FRC Forest Rights Committee
ILO International Labour Organization
KNP Kaziranga National Park
MoEFCC Ministry of Environment, Forest and Climate Change, India
NGOs Non-governmental organizations
OHCHR UN Office of the High Commissioner for Human Rights
OTFD Other Traditional Forest Dwellers
PESA Panchayats (Extension to Scheduled Areas) Act 1996
SDLC Subdivisional-level committee
ST Scheduled Tribes
UNCED United Nations Conference on Environment and Development
UNSCPDP United Nations Sub-Commission on the Prevention of Discrimination and
the Protection of Minorities
UNWGIP United Nations Working Group on Indigenous Populations

1. Introduction
According to the Census of India (2011), more than 104 million people are
Scheduled Tribes,2 constituting 8.6% of the population (Indian Ministry of Tribal
Affairs, 2013). The current legal framework for preserving forest rights of the
Scheduled Tribes and Other Traditional Forest Dwellers is the Scheduled Tribes
and the Other Traditional Forest Dwellers (Recognition of Forest Rights) Act
(Indian Parliament, 2006). It is also popularly called the Forest Rights Act (FRA).
The passing of the FRA was a landmark event in itself. It granted more rights to
the Scheduled Tribes and people residing in the forests of India than was ever
achieved in earlier periods. The FRA further acknowledges that these groups are
vital to the sustenance of forest ecosystems.
Formerly during colonial rule in India, the Forest Act of 1878 as one of the
earliest legislation led to the mass conversion of forest land into government
properties without proper acknowledgement of tribal rights (Springate-Baginski
150 Kumarjeeb Pegu
and Blaikie, 2007). Later, the Indian Forest Act (Imperial Legislative Council,
1927) provided preservation of ‘rights’ to forest communities (for more see
sections 11, 12, 17 and 18), yet in practice much less was achieved. Already
this short introduction shows the variety of terms that could be applied for
defining “Tribal” and the tension between tribals’ rights and forest property
situations in India.
The paper attempts to identify:

1 a workable definition for Tribals in the Indian context;

2 the role that FRA has already rendered in improving the protection of
indigenous peoples’ land rights;
3 current pitfalls in its implementation; and
4 the resulting implications in order to realize a nuanced reasoning for its
effective enforcement.

This chapter briefly presents the following methods. Afterward, international and
national definitions are assessed. Then, the creation of the FRA is analysed. Also,
the critical assessment of the FRA based on state action and judicial discourse are
undertaken. Finally, the paper provides the implications on protection gaps and
required State action for the enforcement of the FRA.

1.1. Methods
The chapter applies, in the spirit of doctrinal research, an in-depth content
analysis of multiple Indian case laws and the Forest Rights Act of 2006 along
with relevant National and International legal documents in a qualitative manner.

1.2. Findings

1.2.1. Definition of tribal

While no formal definition of indigenous peoples has been adopted under
international law, the most widely cited working definition of indigenous people
comes from José Martínez Cobo, former Special Rapporteur of the Sub-
Commission on Prevention of Discrimination and Protection of Minorities
(OHCHR, 2013). The working definition states:

Indigenous communities, peoples and nations are those which, having a

historical continuity with pre-invasion and pre-colonial societies that
developed on their territories, consider themselves distinct from other
sectors of the societies now prevailing in those territories, or parts of them.
They form at present non-dominant sectors of society and are determined to
preserve, develop and transmit to future generations their ancestral
territories, and their ethnic identity, as the basis of their continued existence
as peoples, in accordance with their own cultural patterns, social
institutions and legal systems.
 Tribals and forest rights in India 151
This historical continuity may consist of the continuation, for an extended
period reaching into the present, of one or more of the following factors:
(a) Occupation of ancestral lands, or at least of part of them; (b) Common
ancestry with the original occupants of these lands; (c) Culture in general,
or in specific manifestations (such as religion, living under a tribal system,
membership of an indigenous community, dress, means of livelihood, life-
style, etc.); (d) Language (whether used as the only language, as mother-
tongue, as the habitual means of communication at home or in the family, or
as the main, preferred, habitual, general or normal language); (e) Residence
in certain parts of the country, or in certain regions of the world; (f) Other
relevant factors.
(Cobo, 1986)
While Martinez’s definition contains the term ‘indigenous’ and not ‘tribes’,
the similarities between the two are at most times almost indistinguishable.
During the United Nations Workshops on Indigenous and Tribal Peoples’
Struggle for Right to Self-determination and Self-government 1994 in New
Delhi/India, the Indian contingent – while making no distinction between a
tribal and an indigenous community – also asserted that ‘Adivasis’, a term
commonly used for referring to the people in the forests of mainland India,
is including ‘indigenous’ and ‘tribal’. There, India particularly showed a
strong discontent towards the working definition of José Martínez Cobo and
held that the same was much reliant on the western experience and that such
experience only holds those as indigenous who were conquered by foreign
invaders. 1993
(UNSCPDPM, 1994)
The UN proposed the following criteria: Sub-Commission on the Promotion and
Protection of Human Rights
Relative geographic isolation of the community;
Reliance on forest, ancestral and water bodies within the territory of the com-
munity for food and their necessities;
A distinctive culture which is community oriented and gives primacy to nature;
Relative freedom of women within their society;
Absence of a division of labour and caste system;
Lack of food taboos.
(UNWGIP, 1994)

In terms of the international sphere similar to the synonymous use of the terms
‘tribal’ and ‘indigenous people’, the World Bank (2003) further corroborated the
same while agreeing on five characteristics to define the indigenous ethnic
minorities, tribal groups and Scheduled Tribes as consisting of:

(a) Close attachment to ancestral territories and to the natural resources in

these areas;
(b) Self-identification and identification by others as members of a distinct
cultural group;
152 Kumarjeeb Pegu
(c) An indigenous language, often different from the national language;
(d) Presence of customary social and political institutions;
(e) Primarily subsistence-oriented production.
(World Bank, 2003, p. 66)

The International Labour Organization under the Convention Concerning the

Protection and Integration of Indigenous and Other Tribal and Semi-tribal
Populations in Independent Countries (ILO, 1957) referred to indigenous, tribal
and semi-tribal peoples as belonging to a common group called ‘the population’.
Furthermore, according to this convention, social and economic advancements
of this ‘population’ were less than that of other sections of the national
community. Moreover, it was also held that status of tribal and semi-tribal were
wholly or partially regulated by their culture and customs (ILO, 1957).
Later, a revised definition within Article 1, Paragraph 1 of the ILO
Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries(ILO, 1989) stated:

(a) tribal peoples in independent countries whose social, cultural and

economic conditions distinguish them from other sections of the
national community, and whose status is regulated wholly or partially
by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on
account of their descent from the populations which inhabited the
country, or a geographical region to which the country belongs, at the
time of conquest or colonisation or the establishment of present state
boundaries and who, irrespective of their legal status, retain some or all
of their ownsocial, economic, cultural and political institutions.
(ILO, 1989)

This definition was a marked change from the earlier definition. It focused on the
word ‘retained’. This implies the rights of these groups in retaining their
cultural, social and political institutions and self-identity, unlike the earlier
notion of their social and economic conditions being in a less advanced stage
than others in the national community. The later definition also reflected an
evolution that was compelled by the criticism of the definition of indigenous
provided under ILO Convention 107. It was regarded as akin to the role of tribes
or indigenous peoples merely being ‘transitory’ in the evolution of human social
organization as they ultimately follow the institutions of their colonizers separate
from their own cultural experiences. Although the latter definition arose from
the earlier definition, yet within the two definitions the synonym use of the words
‘tribe’ and ‘indigenous peoples’ was retained.
D. N. Majumdar in his book titled Races and Cultures of India held that a tribe
similar to a caste, sect or class is part of various categories of social stratification
found in India (Majumdar, 1944). He further held that a tribe is:
 Tribals and forest rights in India 153
A collection of families or group of families bearing a common name,
members of which occupy the same territory, speak the same language and
observe certain taboos regarding marriage, profession or occupation and have
developed a well-assessed system of reciprocity and mutuality of obligation.
A tribe is ordinarily an endogamous unit, the members of which confine their
marriages within the tribe. Several clans constitute a tribe, each of which
claims kinship between the members belonging to it, based on either
totemistic division, territorial contiguity or common residence. A tribe is a
political unit is the same sense that tribal societies owns a political
organization, either recognizes hereditary tribal chiefs or the several sections
of it are welded into a territorial group ruled over by clan chiefs or hereditary
kings.
(Majumdar, 1944, p. 93)

While the initial definitions at international forums were mainly dominated by the
Western experience, i.e. the overpowering of indigenous people through colonial-
ism, later definitions have seen a shift towards defining these people purely based
on their heritage, cultural and dependence on the environment.
Similarly, the Rio Declaration (UNCED, 1992) in Principle 22 acknowledges
the significant role of indigenous people in environmental management and
development as they have achieved the knowledge and experience of traditional
practices due to their involvement with the environment and forests.
After an assessment of these perimeters of defining a tribal within the Indian
context, it is observed that the recognition of one’s identity as a tribal has roots in
their historic existence that is shared in close proximity with the forest and also
that in return had shaped their geographic isolation. A product of such isolation is
seen in the distinct customs that have emerged within these groups separately to
that of the general populace.
Finally, an important aspect of Indian Law remains in the reality that the India
Union does not provide a legal definition of a ‘tribe’. Nonetheless, while
deliberating upon the State’s relationship with its citizens, the Constituent
Assembly of India had an understanding that the way of life of citizens from
tribal communities are distinct from that of other citizens and hence for them
provides a separate protection regime within the Constitution (Nag, 2019).
However, for a tribe to hold the benefits as provided by the law of the land, the
group must be recognized legally as Scheduled Tribes under a Constitutional
Order with the consent of the president.3

1.2.2. The making of the Forest Rights Act of 2006

The drafting of the Scheduled Tribes (Recognition of Forest Rights) Bill of 2005
was assigned on the Ministry of Tribal Affairs of India (MoTA). The drafting
process was monitored by the Ministry of Environment, Forest and Climate
Change, India (MoEFCC) along with wildlife and environmental NGOs for
ensuring eco- logical interests. Also, the increased scrutiny of the bill and its
154 Kumarjeeb Pegu
review came with the formation of Joint Parliamentary Committee (JPC)
of the Indian Parliament in December 2005. (Bhullar, 2008) The JPC’s
proceedings introduced significant changes to the bill, such as:

1 inclusion of Non-scheduled Tribes among the FRA beneficiaries,

2 recognition of land rights on the cutoff date of December 2005 and
3 institution of democratic and scientific processes for the designation of
protected areas for biodiversity and wildlife conservation (protected areas as
provided under the Wildlife Protection Act of 1972 include national parks,
wilderness areas, community conserved areas, nature reserves).

Opposed by environmental groups, the JPC’s recommendations were examined

by a Group of Ministers (GOM) formed by the Central Government (Kashwan,
2017). However, before GOM could submit its consensus bill, the 2005 Bill was
already finally presented in a revised form as the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 (FRA)
(Bandi, 2014).

1.2.3. Critical assessment of the Forest Rights Act and its judicial
implications
The Forest Rights Act as enshrined in its preamble provides provisions for the
recognition and vesting of forest rights in forest land to the forest dwellers who
have resided in such forests for generations, albeit without their rights having
been recorded previously. Hence the FRA installs a framework for recording these
rights through an institutionalized process. The Act also provides norms for the
responsibility for and authority to sustainable use, conservation of biodiversity
and maintenance of ecology by the forest dwellers. This is to be monitored by the
grass roots institution of the gram sabhas (local decentralized village-level
institutions of governance).

EXAMINATION OF THE FOREST RIGHTS ACT

In terms of the positives for the protection of forest dwellers under the FRA,
clause ‘i’ of subsection 1 of section 3 provides forest rights to the communities in
the forest land with rights to protect, regenerate, conserve or manage community
forest resources which are traditionally protected for sustainable development.
In contrast, regarding the threat of ecological damage by such communities
including the situation of a rise in their population, the Act provides measures for
‘resettlement’ of these people from such areas. Under section 4(2), eviction of
forest dwellers from protected areas for wildlife breeding can be initiated in
certain cases (to be examined in the latter parts of the text).
Under section 6, authorities under the state shall determine the nature and
extent of forest rights that may be given to the forest dwellers. Similarly, under
section 5(c) to the FRA, the holder of forest rights as well as the village level
 Tribals and forest rights in India 155
institutions as prescribed in the FRA are empowered to ensure that the habitats
of forest communities are preserved from destructive practices that affect their
cultural and natural heritage. Furthermore, section 5(d) provides for village-level
institutions in such areas to ensure that the decisions taken by the area gram
sabha4 to regulate access to community forest resources and to stop activities
which adversely affects how the ecology is complied with. Finally, within
section 5, clause ‘k’ provides the right of access to biodiversity, while clause ‘l’
of the same section reflects a wider scope by inclusion of other traditional rights
enjoyed by the forest communities. These other rights have not been mentioned
in subsection 1 to section 3, although traditional rights of hunting or trapping
or extracting of body parts of a wild animal are excluded to accommodate the
wishes of conservationists.
Moreover, under section 4(1), the central government is bestowed with the
power to vest rights provided in section 3 to Forest Scheduled Tribes (Forest STs)
and Other Traditional Forest Dwellers (OTFDs) within the states, notwithstanding
any other law and subject only to provisions of this very legislation.
Under the FRA, to ensure protection of forest dwellers against state
encroachment in section 7, it is held that offences against the legislation by a
person representing an authority or committee under the state shall be liable to
be proceeded against and punished under the Act with a fine not exceeding ‘One
thousand Indian Rupees’ (US$13.19). In consequence, there remains a constant
chance of violation by state functionaries and private individuals as the FRA
doesn’t provide any details on the recourses available to gram sabhas in the case
of violations against the Act (Kothari, 2006) or on the form of punishments other
than this negligible fine for government officials.
Also, in reference to the right of inheritance under section 4(4) of the FRA,
an argument is made that since many tribal customary norms exclude women
from claiming a share in inherited property, the Act needed to provide expressly
for such rights to women. Since the legislation fails to do so, the issue of gender
discrimination also remains unanswered at least in matters of inheritance (Reddy
et al. 2011).
Subsection 5 of section 4 to the FRA regulates the eviction of forest STs or
OTFDs. No eviction or removal shall be initiated without conducting a complete
recognition and verification of the affected persons by the state. In reality, this
remains underachieved in multiple states along with failures on part of state-level
monitoring committees and tribal departments of states during the implementa-
tion of the Act (CSD, 2010).
Also, district-level committees (herein forth DLC) and the subdivisional level
committee (SDLC) formed under the FRA on multiple occasions had lacked a
proper constitution; this includes the absence of panchayat members – in contra-
diction to the FRA and the Panchayats (Extension to Scheduled Areas) Act, 1996
(PESA) – which has led to illegal dominance of forest officials in decision making
towards the rights of forest dwellers (Kothari, 2011). Further, exclusion of women
and special minority groups from forest rights committees (FRC) – in
contradiction to Rule 3 of the Scheduled Tribes and Other Traditional Forest
Dwellers
156 Kumarjeeb Pegu
(Recognition of Forest Rights) Rules 2007 (FRR, 2007) – also lead to structural
weaknesses in the management of forest rights (Kothari, 2011).
Moreover, data from the MoTA reflects that until November 2010 about 3 mil-
lion claims for rights under the FRA were filed of which only 1 million were
accepted. The high rate of rejection is seen as result of implementation failures by
state (Kothari, 2011).
Finally, one of the more critical provisions within the FRA i.e. Clause ‘o’ of
section 2 is scrutinized. It provides that a community of forest dwellers must
have had habitation in the forest land for at least three generations (75 years)
through family lineage culminating in ownership of landholding, also called patta
or myadi patta (permanent landholding) from the initiation date of 13
December 1930. The provision is exclusive to the OTFDs as forest STs are
explained as a separate group in clause ‘c’ to section 2 of the FRA.5 This
rule implies that OTFDs must have legal documentation to their claims of
residence over the forest land. This documentation under the FRA shall initially
be examined based upon a resolution by the gram sabha. Later, the
documentation shall be re- examined by the SDLC. A final approval or rejection
of this forest rights record is decided by the DLC.
Herein it becomes manifested that complexities do exist in the process of
legal documentation of rights of the forest dwellers due to historical injustices
(Springate-Baginski et al., 2009). Also, since the preamble of FRA provides for
thedocumentation of rights of forest STs and OTFDs not recorded previously, the
spirit of the preamble holds true for forest STs. But for OTFDs, the same
consensus cannot be agreed upon as any claims of the forest rights and
particularly the land rights of OTFDs shall under clause ‘e’ to section 2 of the
FRA always have topass the test of legal documentation.

JUDICIAL APPLICATION OF FRA

An important question is whether the forests STs within the FRA are provided the
required protection that the legislation aims to achieve?
Contextually, the forest rights of the Scheduled Tribes living near and within
the Kaziranga National Park (KNP) of Assam present a vital observation.
Assam State has steadfastly led a protectionist approach for decades in the KNP
area, which in turn has helped in the conservation of endangered species of wild-
life and ecology in the park. With the introduction of the Wildlife (Protection) Act
1972 (Indian Parliament, 1972), Kaziranga was finally converted into a National
Park in 1974 for further stringent control by the state in relation to efforts for
natural conservation. Multiple KNP additions (increase in the size of the park
area) have taken place. Recently, the park authority planned under the seventh
addition to include Miker Hills and part of Brahmaputra River and to evict
indigenous communities from their traditional lands in these areas. This leads to
the legal enquiry of whether such steps are lawful.
As a result of the dense population of human settlements around the park,
there have been multiple occasions of ‘human–wildlife conflicts’. They have led
 Tribals and forest rights in India 157
to collateral damages sustained by both men and wildlife (Smadja, 2018). KNP
authorities strongly suspect many Mishing tribe members of poaching activities.
The Mishing, also referred to as the miri, has the status of a Scheduled Tribe under
the Indian Constitution. As such, they were granted the right under the
Constitution (Indian Government, 1950).
The tribe also inhabits so-called saporis in and around the park. Saporis are a
type of island wherein agriculture and fishing are primary activities practiced on
ephemeral, shifting islands within the Brahmaputra River. These islands become
flooded during monsoon, which also leads to denudation and erosion of soil.
The park authorities in the past have heavily relied on poaching committed by a
few villagers in and around the park as a reason for the mass eviction of people,
including the Mishing people from these villages (Barbora, 2017; Fanari and
Doley, 2018).
But the question remains: Can the failure on the part of the state to control the
wrongs done by a few be regarded as a validation for removal of an entire tribe or
a community from the KNP area?
Particularly when one notices that a vital reason for such actions and the
cause for human–wildlife conflict are KNP authorities’ expansionist policy for
the park. Thus from 1977 to 1999, the park has been extended from 434 to 884
km2 under which multiple lands with human settlements came within the parks’
territory, leading to increased evictions of people. In general, the supporters of
the KNP authorities rely on the practice of shifting cultivation by tea garden-
ers and framers along with the use of pesticides running off to the river sources
in the KNP area as a license to introduce evictions. Herein a counterargument
can be found in a KNP Project report submission to the MoEFCC (KNP, 2016).
This KNP submission sought ways to help farmers engage in organic farming to
reduce harm done to the parks’ ecology and at least to ensure a partial solution to
environmental concerns and the human–wildlife conflict in the park. Also, it may
be noted that the term ‘human–wildlife conflict’ and not ‘human–animal conflict’
was used herein as the former term is wider in spectrum and includes both flora
and fauna. A definition of ‘wildlife’ is provided under section 2(37) of the WLPA
1972: ‘wild life includes any animal, aquatic or land vegetation which forms part
of any habitat’. Although the FRA’s aim is to preserve the rights of people living
in forests for generations, section 2(o) of the Act became a new ground for KNP
officials to evict forest dwellers in the area. Because in the case of Assam,
most people cannot prove the requirements under section 2(o) as their lands
were washed away during the 1950 earthquakes with KNP itself being an
epicentre. Moreover, the High Court of Gauhati previously in 2009 held that
historically Assam had no traditional forest dwellers (Sharma and Sarma, 2014),
which further made hopes of judicial validation of forest rights to at least OTFD
in Assam a missed opportunity. While this decision did not mention forest STs of
Assam, no procedure for protecting their forest rights was discussed by the
court, despite their existence in Assam for generations, particularly that of the
Mishings dating back to 13th century CE (Lego, 2005, p. 10; Mipun, 1993, p. 36).
158 Kumarjeeb Pegu
KAZIRANGA NATIONAL PARK V UNION OF INDIA JUDGMENT

The case law of In re Kaziranga National Park v Union of India (Gauhati High
Court, 2012) becomes an important study related to the rights of forest
dwellers in Assam. The petitioners [WP(C) 4860/2013] argued that section 35(5)
of the WLPA 1972 holds that no alteration of boundaries of a national park
shall be made by the respective state government except with the
recommendation of the national board for wildlife. Lacking this
recommendation for second, third and fifth additions (KNP expansions), the
eviction of the forest dwellers, including lawful landholders in the park area, was
according to the petitioners illegal. Another bone of contention in this case law
(Gauhati High Court, 2012) was that no evictions can be instituted as the crucial
recognition and verification process of rights claimed under the norms of section
4(5) and section 6 of the FRA was not completed. The responsibility for the
completion of the verification procedure is bestowed upon authorities such as
gram sabhas, SDLCs and DLCs under section 6 of the FRA. The Gauhati High
Court (2012) held that no institution was formed under section 6 of the FRA, and
similarly no FRC was formed as required under rule 3(4) of FRR 2007.
The petitioners also held that an examination of the sixth KNP addition
revealed that the Assam Government was encouraging encroachment by illegal
occupants through the granting of landholdings. The petitioners held that 305
families wereliving as encroachers and were aided by the state through a grant of
land and building materials under the Indra Awas Yagana, a central government
scheme from the period of the third addition which in hindsight may also be
observed as the argument from petitioners of the resulting human–wildlife
conflicts in the KNP area.
The Gauhati High Court approved the evictions of residents in and around the
park, including indigenous STs under the second, third, fifth and sixth additions.
The petitioners held that no eviction should be allowed without settlement and
compensations as they are not merely cattle grazers under the sixth addition but
also lawful landholders and residents of the Bandardubi and Deuchur Chang
villages (disputed areas in the case law) as declared by the Assam state.
It was also contended that the said villages are revenue villages6 and hence not
part of the KNP. The court rejecting the claims held that since only grazing rights
were contended by petitioners and since they are recognized as residents only
under the sixth addition, for the larger interest of wildlife, conservation prevention
of their grazing rights and eviction are necessary, although compensation through
competent authorities should be granted. The petitioners had held that they had
been residents of the forest land since the 1950s, for which landholdings were
granted in their favour in 1962. Here, while technically an OTFD under the FRA
is not eligible to claim rights, the forest STs may yet claim such rights under the
legislation although the same was denied by the High Court.
This leads to the crucial question,: What are the circumstances that propel the
expulsion of a forest ST from a forest land? Can the notion of public interest
exclude the forest STs?
 Tribals and forest rights in India 159
Interestingly, in the aforesaid case law, the Gauhati High Court answered this
affirmatively. While the Supreme Court of India in the Vedanta Judgment held
that the notion of public interest cannot be used to exploit the rights of forest STs
under FRA even if exploitation of the surrounding ecology by State-sponsored
economic activities do not cause aggravated damage. While subsection 3 to
section 35 excludes clause (c) of subsection 2 to section 24 of the WLPA 1972
i.e. any form of continuance of any right of a person within a sanctuary or as
herein within a national park meaning extinguishing the rights of a
community, theFRA stands as an exception to this rule. However, clause ‘b’ and
‘c’ of subsection 2 to section 4 of FRA allows for the resettlement of forest
dwellers if their presence causes irreversible damage to the wildlife and their
habitat, provided the state government concludes that no options of human–
wildlife coexistence remains. Similar views are also stipulated in provision 7B
of a ministerial clarification (MoEFCC, 2011) (for more see provision 7B and
provision 8 of this clarification).
The striking fact in this case (Gauhati High Court, 2012) was not that
encroachment was initiated within a fixed given boundary of a wildlife park
but rather that it is a case of expansion of a national parks’ boundaries. This
process has led to the clearing of multiple cultivation areas and human
settlements particularly of indigenous tribal groups so as more animal corridors
were built, resulting in further ‘human–wildlife conflicts’. With the success of
projects such as the Indian Vision (IRV) 2020, Project Tiger etc., the KNP has
seen a dramatic increase in the population of one-horned rhinoceroses and
elephants, along with the distinction of also maintaining the highest density of
tigers in any protected area in the world. This leads to further intensification of
the park’s plans to promulgate the seventh addition. It also raises concerns that
any such addition covering Miker Hills and Brahmaputra Valley may cause a
threat to the indigenous tribal com- munities. This is particularly valid for the
Karbis in Miker Hills and the Mishings in Brahmaputra valley.
The Gauhati High Court (2012) in the aforementioned case also held the
argument that the two villages are revenue villages and hence do not fall under the
category of village forests maintained by the KNP as unattainable. Section 28(1)
of the Indian Forest Act (Imperial Legislative Council, 1927) states in this
context:

The State Government may assign to any village-community the rights of

Government to or over any land which has been constituted a reserved forest,
and may cancel such assignment for all forests so assigned shall be called
village-forests.

With regard to revenue villages as stated under Provision 3.1 of ministerial

circular (MoEFCC, 1990), forest villages may be converted into revenue villages
after denotifying the requisite land as forest. Proposals seeking prior approval
of the Government of India for this purpose under the Forest Conservation Act
(Indian Parliament, 1980, herein forth FCA, 1980) may be submitted. While
160 Kumarjeeb Pegu
converting these villages into revenue villages, the following principles may be
adhered to:

(i) the villages are conferred heritable but inalienable rights;

(ii) administration of these and other Revenue Villages enclaved in forest areas
should preferably be entrusted to the State Forest Departments.
(MoEFCC, 1990)

As Deuchur Chang village was declared a reserved forest in 1916, and similarly
Bandardubi village was granted social forestry rights (forest management by local
communities) in 1986, the Assam state was required to comply with the FCA
before dereserving these villages. Onthe one hand, the Gauhati High Court (2012)
acknowledged the wrongdoing of the state in not seeking prior approval from the
Central Government as required under section 2(i) of the FCA, 1980 while
dereserving Bandardubi. On the other hand, the same court held for Deuchur Chang
without going into the question of dereservation of the forest tag that this village
cannot be termed a revenue village and thereby contradicting the stance of both
state and petitioners.
The Gauhati High Court (2012) held that the people may be evicted since both
villages were ‘reserved forests’ and serve as animal corridors and that the claims
of the ‘handful of claimants’ is not greater than national interest i.e. preservation
of wildlife.
The Gauhati High Court (2012) seems to completely overlook the FRA and
did not indulge itself in the vital question of whether all alternatives to the
phenomenon of coexistence of humans and wildlife were exhausted. While
illegal encroachments in the wildlife areas are a rapidly expanding neo-
postmodern phenomenon in India, there remains a responsibility on the state and
on the judiciary to distinguish and separate such illegal encroachments from the
notion of rights to indigenous people in forests which the court in the case failed
to examine.

VEDANTA MINING JUDGMENT

The decision of the Supreme Court of India (2011) in the Vedanta judgment
reiterates that FRA ensures preservation of the rights of men, forests and the
environment alike.
The Vedanta case started in 2003 with a Memorandum of Understanding (MoU)
between Sterlite Industries (India) ltd. (hereinafter SIIL), a subsidiary of Vedanta
resources PLC, and the Government of Odisha for bauxite mining in Odisha,
although the company’s plans never came to fruition due to the Supreme Court
(2011). The Odisha Mining Corporation and Vedanta Aluminia (part of SIIL)
entered into agreement in 2004 for the establishment of bauxite mining at
Niyamgiri Hills. In accordance with the MoU, SIIL acquired the license for
setting up an aluminia complex consisting of an aluminia refinery plant, a bauxite
mine and a captive power plant at Lanjigarh in Kalahandi district. In May 2005,
the MoEFCC ordered work to be stopped at the refinery till a forest clearance could
 Tribals and forest rights in India 161
be obtained by Vedanta Aluminia from the ministry (Livemint, 2010), although
in an unexpected turn of events, the MoEFCC later revoked this order. Further, in
September 2005, the Centrally Empowered Committee (CEC) of the Supreme
Court sub- mitted a report to this court which stated that no in-depth study of the
proposed mining and its effect on the ground water, flora and fauna and on the
Dongria and Kondh tribes (Scheduled Tribes inhabiting the area) had been done
(CEC, 2005). The CEC recommended revocation of the environmental clearance
for the refinery project as well as mining in the area, though the court ended up
referring the matter to the MoEFCC. Moreover, in 2007 a supplementary report
of the CEC, reiterating its earlier stand, went public (CEC, 2007). On the basis of
the Supreme Court direction, the MoEFCC formed the Saxena Committee to
investigate the proposed mining activity at Niyamgiri (Saxena et al., 2010). That
committee concluded its findings in 2010.
The Saxena Committee reported that:

1 the environmental impact assessments (herein forth E.I.A.) done in 2002 and
2005 for the primary mining lease (PML) were highly insufficient;
2 as many as 121,337 trees and 36,3000 scrubs will be cut if the mining lease
is granted along with endangering the wildlife,
3 that the mining project shall adversely affect 20% of present population of
the Dongaria Kondh tribe residing in the area;
4 that the entire PML area fell in the community forest resource category as
defined under clause ‘a’ to section 2 of as well as clause ‘h’ to section 2 of the
FRA;
5 that under clause ‘c’ of section 5 to the FRA, the gram sabhas, were to ensure
that the habitat in question is preserved from destructive practices that
affect the tribes and their ecology and that the MoEFCC (despite the
authority under the FCA, 1980) cannot override this statutory norm;
6 the refinery premises illegally acquired 26.123 ha of forest land without
proper legal measures;
7 the mining lease should be revoked.

Subsequent to this report, the MoEFCC passed an order in 2010 under which the
forest advisory committee formed by the ministry gave a go-ahead to the project
subject only to completion of the process by the Odisha government of
ascertaining the community rights on forest land of the Dongria Tribe under the
FRA.
However, since this was not properly implemented, the MoEFCC rejected the
stage II forest clearance given for the diversion of about 660 ha of forest land for
mining purposes in the Kalahandi and Rajagada districts of Odisha (MoEFCC,
2010). The decision was challenged by the Odisha Mining Corporation before the
Supreme Court leading to the present case in discussion.
The Supreme Court of India (2011) held that the gram sabhas of the affected
areas (12 gram sabhas) shall decide on the faith of the project through consensus
building and polling in the aforesaid localities for which validity was derived
from the FRA and PESA (since tribal majority areas, referred to as Vth scheduled
162 Kumarjeeb Pegu
areas,7 were affected). The proceedings of the 12 grams sabhas of Rajagada and
Kalahandi districts of Odisha, in line with the verdict, resulted in a stoppage of
mining activities as all the grams voted against it.
The judgment of the court in this case law reflects a spirit of social activism,
and it was under this attitude that the court put forth the emphasis for the Primitive
Tribal Groups under the umbrella of the FRA and held as follows:

Primitive Tribal Groups need some emphasis, as very few communities in

India in general and Orissa in particular come under the ambit of such a
category. Their dependence on the forest being almost complete, the
violation of the specific protections extended to their habitat and habitations
by the ForestRights Act, 2006 are simply unacceptable.

A primitive tribal group, also known as ‘particularly vulnerable tribal group’, is

a classification utilized by the Government of India for providing support for the
uplift of certain tribal groups with the lowest level of socio-economic
development. The UN Dhebar Commission, formed in 1960 to report on the
welfare and administration of scheduled areas, submitted its report in 1961 in
which it holds that within the grouping of Scheduled Tribes there are tribes at
the lowest levels of economic and social development. The observation led to the
creation of a sub- category of tribes identified on the basis of their level of
development which was described as the lowest under the fourth Five Year Plan.
These groups came to becalled the ‘Primitive tribal group’.
The court further reaffirmed the role of the forest STs and the OTFD in
preserving the forests through their customary practices as it held that:

the Convention on the Biological Diversity (CBD) adopted at the Earth

Summit (1992) highlighted the necessity to preserve and maintain
knowledge, innovation and practices of the local communities relevant for
the conservation and sustainable use of bio-diversity. India is a signatory to
CBD. The Rio Declaration on Environment and Development Agenda 21
and Forestry principle also encourage the promotion of customary
practices conducive to conservation. The necessity to respect and promote
the inherent rights of indigenous peoples which derive from their political,
economic and social structures and from their cultures, spiritual traditions,
histories and philosophies, especially their rights to their lands, territories
and resources have also been recognized by United Nations in the United
Nations Declaration on Rights of Indigenous Peoples. STs and other TFDs
residing in the Scheduled Areas have a right to maintain their distinctive
spiritual relationship with their traditionally owned or otherwise occupied
and used land.

Finally, the court declared that FRA secures the inalienable rights of the forest
communities which they share with the ecology in a symbiotic relationship along-
side a crucial observation that forest STs and OTFDs within the FRA possess
rights in critical wildlife zones as it held:
 Tribals and forest rights in India 163
The Act envisages the recognition and vesting of forest rights in forest
dwelling Scheduled Tribes and other traditional forest dwellers over all
forest lands, including National Parks and Sanctuaries. Under Section 2(b)
of the Act, the Ministry of Environment & Forests is responsible for
determination and notification of critical wildlife habitats in the National
Parks and Sanctuaries for the purpose of creating inviolate areas for wildlife
conservation, as per the procedure laid down. In fact, the rights of the forest
dwellers residing in the National Parks and Sanctuaries are required to be
recognized without waiting on notification of critical wildlife habitats in
these areas.

The Vedanta judgment, in contrast to the Kaziranga National Park (KNP)

judgment, reaffirmed that the notion of public interest also relates to an all-
inclusive process of development in which the forest dwellers too are
shareholders, particularly since their rights are linked to the forests and its
preservation gained by such groups through an experience of generational
coexistence which are ‘inalienable’.

1.2.4 Implications: protection gaps and required state action

On 13 February 2019, the Supreme Court of India passed an interim order requiring
17 states of India to remove 1 million-plus people from its forests while hearing on
the constitutional validity of the FRA [Writ petition (Civil) No. 109 of 2008]. On
28 February 2019, the Supreme Court stayed the eviction order for a period of four
months. The eviction order was further extended in subsequent hearings. The
Supreme Court (2019) had particularly held that mechanisms to record the
community rights of forest dwellers by the states were not properly implemented.
The observation is implicit of a violation of rights verification process by state
agencies under section 6 of FRA. Such enforcement gaps are not only a denial of
the justice to rightful claimants but also an enabling tool for unabated illegal
encroachmentsof forest land by unlawful settlers (The Hindu, 2019).
Referring to the KNP case study, the yearly occurrence of floods in the KNP
and its impact on the area remains one area of outline, as a question is asked:

What if the floods lead to erosion of the soil and landholdings of tribes
compelling their forced relocation within the particular geographic area
from their original land to new holdings? Will their rights be protected?

Particularly, the preamble to the FRA provides for an affirmative answer to these
questions as it holds ‘whose rights could not be recorded; to provide for a frame-
work for recording the forest right’. However, in the case of the Assam state the
practice has been to rely on the legal documents of landholdings by the people. It
is further documented that during the various Kaziranga additions, the land
acquisition from the indigenous people has been done without providing them
rehabilitation in the form of alternate land and livelihood (Fanari and Doley,
2018). Such actions of the state also remain in contravention to the provisions
under clause ‘m’ of subsection 1 to section 3 and clause ‘d’ of subsection 2 to
section 4 to the FRA.
164 Kumarjeeb Pegu
It is herein that the Assam Government requires re-examination of the FRA
and requires local amendments to the Act since ‘forests’ are an item under 17-A
of the Concurrent List to Indian Constitution granting powers to both states and
central governments to legislate on the matter (see Article 254 of the Constitution
of India,1950).
The FRA, in protecting the forest dwellers, also provides a cut-off date for
claiming rights by both the forest STs and OTFDs so that the Act does not become
an instrument of arbitrary misuse in the hands of encroachers. While the FRA
provides such a protection mechanism, a new approach and indeed an
amendment particularly in providing stringent penal provisions against violations
of this legislation by both state and non-state parties is required to ensure its
successful implementation.
In reflection, the FRA, if implemented in a disciplined manner, preserves the
rights of both forest communities and the ecology. Provisions under the FRA for
the protection of forests and wildlife are placed in the highest order [for instance,
see section 3(1) ‘l’, proviso to section 4(1), section 5]. The findings in this paper
provides a basis to the indication that the FRA ensures environmental protection
if enforced with rigidity.

Acknowledgements
The valuable comments and helpful input of an anonymous reviewer are heartily
acknowledged.

Notes
1 Assistant Professor, KIIT School of Law, Campus XVI, KIIT University, Patia, Bhu-
baneswar, Odisha, India–751024.
2 Article 342(1) of Constitution of India, 1950 states: ‘The President may with respect to
any State or Union territory, and where it is a State, after consultation with the
Governor thereof, by public notification, specify the tribes or tribal communities or
parts of or groups within tribes or tribal communities which shall for the purposes of
this Constitution be deemed to be Scheduled Tribes in relation to that State or Union
territory, as the case may be.’
3 Article 342(2): Parliament may by law include in or exclude from the list of Scheduled
Tribes specified in a notification issued under clause (1) any tribe or tribal community or
part of or group within any tribe or tribal community, but save as aforesaid a notification
issued under the said clause shall not be varied by any subsequent notification. (Clause
1 to Article 342 is provided in the previous footnote.)
4 A gram sabha as explained under Articles 243(b) and 243A of the Indian Constitution
means a body consisting of persons registered in the electoral rolls of a village
comprised within the area of the local self-governance area at the village level. The
gram sabha may exercise such powers as provided by the legislature of a state.
5 S. 2.c. provides that “forest dwelling Scheduled Tribes” means the members or
community of the Scheduled Tribes who primarily reside in and who depend on the
forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe
pastoralist communities.
6 The concept of a revenue village means an administrative village with defined borders
set up for revenue purposes by a respective state to enable developmental measures in
 Tribals and forest rights in India 165
an area under the State-level Land Revenue laws. Revenue villages are recorded in the
revenue records as ‘village’. Usually when a forest village, i.e. a settlement established
inside the forests, is converted into a revenue village, developmental measures such as
creation of health care and educational facilities are easier to initiate as such villages are
also used for non-forest (commercial) purposes.
7 Article 244 (1), Indian Constitution, 1950: The provisions of the Fifth Schedule shall
apply to the administration and control of the Scheduled Areas and Scheduled Tribes in
any State other than the States of Assam, Meghalaya, Tripura and Mizoram.
President declares an area as ‘Scheduled Areas’ due to the preponderance of tribal
population and its relative economic backwardness.
The Indian President based on the report of a Governor of the State may allow for
administration of such areas by a Tribes Advisory Council (TAC). Also, the governor
may prohibit the application of Union and State laws in the area by providing regulations
after consulting the TAC and with approval from the President. (For more, see Article
244 (1), Indian Constitution, 1950.)

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