A Decade Of Resisting Law That Gives Adivasis Rights Over Forests = Climate Disasters For Himachal Pradesh

MANSHI ASHER
 
21 Sep 2022 11 min read  Share

Climate change-induced floods, landslides have ravaged a land of mountains. Yet, successive state governments continued to seek exemptions from settling the land rights of forest-dwellers—stewards of forest lands—as mandated by law. They diverted forests for dams, industry in violation of the Forest Rights Act. Though 70% of its land is under forests, only 164 land titles have been distributed in Himachal, 15 years after the law was enacted.

Forest dwellers from Himachal Pradesh protesting in front of state assembly at Dharamshala, 2018/SUMIT MAHAR

Kangra, Himachal Pradesh: Unprecedented flash floods, cloudbursts and landslides in Himachal Pradesh took more than 1,500 lives in the last five monsoons, according to an August 2022 report by the state’s disaster management authority. 

Unfolding climate disasters in the Himalayan region have been cited as causes of extreme climate events over the last couple of years including, for example, the August 2022 Pakistan floods that displaced more than 30 million and were attributed to fast-melting glaciers. 

Despite the ecological and climate vulnerabilities of the Himalayas, land use change of forest land and deforestation for large infrastructure projects picked up pace over the last decade in the hilly state of Himachal, even as consecutive governments pushed back on laws that envision greater community ownership and stewardship of fragile forests.

Among these was the June 2022 move by the union ministry of environment, forest and climate change (MoEF&CC) to dilute clauses of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, popularly called the Forest Rights Act or FRA, particularly the requirement of consent from the gram sabha (the general body of a village) to hand over forest land to project developers, in its newly amended Forest Conservation Rules, 2022.

The FRA was enacted in 2006 to right injustices, since the colonial era, in treating Adivasi and forest-dwelling or forest-dependent communities as encroachers on forest land.  

A directive, first introduced in 2009 by the environment ministry, made the consent of affected villages mandatory before such transfer of forest land. 

The gram sabha was required to give such consent so that forest-dependent people’s claims over tracts of forests may be considered and settled as mandated by the FRA, and to ensure that projects seeking permission to divert forest land for non-forest use are in compliance with provisions of the FRA. 

The provision was later included in the Forest Conservation (Amendment) Rules, 2017.  

In August 2015, a year after the BJP came to power, 21 Opposition members of Parliament wrote to the prime minister complaining about the evisceration of key FRA provisions.  

Meanwhile, in Himachal Pradesh, subsequent years witnessed continued efforts to undermine this provision while diversion of forest land continued to be permitted.

Since 2008, when implementation of the FRA began nationwide, at least 5,000 hectares of forest land have been diverted in Himachal for power projects, transmission lines, roads, mining and other non-forest purposes. 

Himachal’s Repeated Objections To Clauses Of A Union Law 

Until 2018, 10 years since the rules under the FRA were notified, no more than 75 claims for individual and community forest rights were recognised in Himachal Pradesh under the FRA. 

Meanwhile, over the course of a decade, the Himalayan state repeatedly sought to be exempted from the legal clause requiring gram sabha consent for diverting forest land. 

In September 2011, erstwhile chief minister Prem Kumar Dhumal wrote to then union environment minister Jayanthi Natarajan requesting that Himachal Pradesh be exempted from the gram sabha consent before such land is diverted for industry or infrastructure projects.  Forest rights throughout the state, the chief minister’s letter claimed, “have long been settled and recorded in a settlement report”.  

Communities living in the state’s tribal districts, including scheduled tribes and others, were “not even forest dwelling communities”, he said, and advocated that a divisional forest officer be allowed to certify that this condition was not applicable. Such a certificate “should suffice”  to process requests for permission to divert forest land, he said.  

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Hydropower Projects Gobble Forest Land

Dhumal’s correspondence was about exemptions sought from environmental clearance norms for hydro power projects. 

A hub of hydro power in India, at least 164 hydro power projects are operational across Himachal Pradesh, another 54 are under construction and many more are in various stages of planning. Himachal Pradesh plans to double the current installed capacity of 10,781 MW. 

Dhumal followed up his letter with another in April 2012, seeking Natarajan’s “personal intervention” because delays in giving clearances were “impeding the rapid development of the hydro power potential of Himachal Pradesh.”

Referring to his earlier letter, Dhumal argued that despite certificates issued by district collectors stating that no FRA claims were pending, the union ministry didn’t consider this as sufficient evidence to grant clearances. “This is unduly delaying clearance of many development projects and specially hydel projects,” the chief minister wrote. 

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Five months later, on 20 September 2012, the environment ministry yielded. 

A letter signed by the minister Natarajan addressed to the principal secretary of Himachal Pradesh said compliance with the FRA, mandatory for the environment ministry to accord clearances to projects, would be waived for the state. 

Subsequently, collector-issued certificates saying there were no pending claims under the FRA were recognised and accepted by the union ministry in the course of granting environment/forest clearances. 

Relying on such a certificate, for instance, clearance was given in 2012 for an area of 75 hectares for the 180 MW Bajoli-Holi hydropower project. This under-construction power generation facility on the river Ravi lies in the tribal region of Bharmour, in Himachal’s Chamba district. 

As far back as 2014, women from the Gaddi tribe protested the commencement of work on the project, fearing that it would destroy their houses and dry up natural water springs. In December 2021, almost eight years later, seepage and landslides damaged houses in their village, Jharauta, and their forest rights remained unsettled. 

The deputy commissioner of Chamba certified that the process under FRA for settlement of rights was complete. Villagers’ claims had never been filed. 

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Apart from hydropower projects, in Himachal, close to 3,700 hectares of forest land have been diverted since 1980 for power transmission lines and roads. However, these were classified as ‘linear projects’ in 2013 and exempted from requiring the ‘gram sabha consent’ as a mandatory clause for project clearance by the environment ministry. 

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Tribal Affairs Ministry Objects To Diluting FRA

The ministry of tribal affairs, the nodal ministry for implementation of the FRA, objected to the developments emerging from the correspondence between the Himachal state government and the union environment ministry.

After a Congress government was established in Himachal Pradesh in December 2012, the then union minister for tribal affairs V Kishore Chandra Deo wrote to Virbhadra Singh, then newly appointed as state chief minister. Deo said the previous state government had incorrectly interpreted the FRA rules, and  emphasised the need to expedite the process of filing and considering  forest-dwellers’ claims to forest land, as per the FRA.  

The union ministry of tribal affairs also took the matter up with the union environment ministry. In April 2013, through an office memorandum, the tribal affairs ministry objected to the environment ministry granting an ‘exemption’ (vide Natarajan’s September 2012 letter) to Himachal Pradesh government on FRA compliances. It asked for Natarajan’s letter to be withdrawn.

The memo from the tribal affairs ministry categorically said, “Since claims under FRA are first received by the gram sabha, therefore certificates from the gram sabha(s) must be obtained before concluding that all rights under FRA have been settled.” 

Importantly, the memo underlined that the implementation of FRA could not be set aside because claims had been settled in the past. “...fresh rights accrue over a period of time…” the tribal affairs ministry’s office memorandum said.

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Until then, the Himachal government had only announced FRA implementation for the tribal areas of Kinnaur, Lahaul-Spiti, Pangi and Bharmour. 

Following pressure from the tribal affairs ministry, the new Congress government in Himachal Pradesh initiated FRA implementation in 2012, with the formation of village-level forest rights committees in the entire state, though the government would later concede in court that committees were improperly constituted. 

In July 2013, however, the environment ministry introduced formats for collector-issued certificates, for all states, to accompany gram sabhas’ no-objection certificates in favour of diverting forest land. Taking cue from this, in June 2014, Himachal Pradesh’s principal secretary (forests) issued similar templates for officials to certify that ‘settlement of FRA claims’ was complete at the village-level. 

Experts said this reduced the process of receiving and perusing forest-dwellers’  claims on forest land to a mere procedural compliance to enable land diversion for infrastructure or industrial projects.

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The Case Of Mandi & Chamba

In the districts of Mandi and Chamba located in 2014, panchayat secretaries were instructed orally to expedite the FRA process to facilitate diversion of forest land for hydropower projects. What ensued was an exercise of obtaining a blanket one-time resolution from villages stating that they had  “zero claims”.

The FRA Rules [specifically Rule 11 (1) (a)], notified in 2008, mandate that the gram sabha will, after the formation of the Forest Rights Committee (FRC), invite all rights holders to file their claims within three months. If not filed within the given time, the same is allowed to be extended by the gram sabha

The FRC is a locally elected body that assists the gram sabha in receiving, acknowledging and verifying claims over forest land as provided under the FRA before these are sent for further verification to the sub-divisional level committee (SDLC) and the district-level committee (DLC). 

In 2018, environmental research and action collective Himdhara examined over a dozen FRC registers and found that the process had been closed using a standard cut-and-paste resolution that said ‘shunya daave prapt huye’ (zero claims received).

The completion of FRA procedures at the end of three months through a declaration of ‘nil’ claims was done in all gram sabhas of the two districts. 

In over a dozen cases, right-holders told Himdhara’s researchers that there was no gram sabha quorum (at least 50% attendance) when these resolutions were passed. 

The FRA register was circulated house to house for signatures after the resolutions were written. In some cases, these resolutions were signed by only panchayat secretaries and members of FRCs or verified only by official members of the SDLC/DLC while unofficial members (other than bureaucrats) remained in the dark. All of these are violations of prescribed procedures under the FRA. 

‘Nil claims certificates’ were issued by collectors and  submitted to the union environment ministry while seeking clearance for forest land diversion. The Thana Plaun Hydro-Electric Project in Mandi is one such example. A final forest department clearance is pending for this project, with 406 hectares of forest land set to be diverted. 

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The Chamba and Mandi districts’ declaration that claims settlement under the FRA was complete through the use of such ‘nil claims’ certificates found mention in the latest (2021) hydropower policy or Sawarn Urja Niti of the state government as a    “pattern” to expedite claims settlements.

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In a May 2016 judgment, the National Green Tribunal directed that forest rights be settled under FRA before proceeding on diversion of forest land for a hydroelectric project in the tribal district of Kinnaur. The tribunal said the grant of approval for diversion of forest land was “illegal” without such a settlement of claims under FRA. 

The case had been filed in 2013 by a local community organisation, Lippa Paryavaran Sangharsh Samiti, after the Kashang Hydro Electric Project  was granted forest clearance without the mandatory gram sabha consent. 

While the claims of Lippa village remain unsettled and the dam construction moved ahead, the judgment was considered a milestone for the criticality of FRA implementation in the state.

Demand To Simplify ‘Cumbersome’ Procedure To Divert Forest Land

On 1 May 2018, NITI Aayog advisor Srikara Naik held a special meeting with the secretary of the ministry of tribal affairs and officers of the MoEF&CC, to discuss communications from the Himachal Pradesh government on what the latter called the “cumbersome” nature of procedures required for forest department clearances, which were becoming an “impediment to growth” in the state. 

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The union tribal affairs ministry continued to contest the claim of the Himachal government that claims under FRA had already been settled. 

According to the  minutes of the meeting, the state government contended that as the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 provided for gram sabha consent if compensation is paid for land rights settled under FRA, obtaining another resolution from gram sabhas was a “duplication of efforts and appears redundant”. The meeting concluded with a decision that both ministries (tribal affairs and environment) would look at simplification of the forest land diversion procedure. 

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Finally, in December 2018, after substantial pressure from the tribal affairs ministry and forest rights groups in the state, Himachal’s tribal development minister Ram Lal Markande announced that the government would implement the FRA in “mission mode”

In June 2019, officials were directed at another meeting to expedite training under the FRA, 11 years since the rules under the law were notified. The delay in implementing the FRA in Himachal continued in 2020-21, however, owing to the Covid-19 lockdown. 

As per the latest status report (February 2022) of the tribal affairs ministry, only 164 titles have been distributed under FRA including 35 granted as community forest rights, abysmally low numbers for a state where 70% of the geographical area is under the jurisdiction of the forest department. 

Meanwhile, close to 60 community organisations and environmentalists from eight Himalayan states objected to the new FCA rules. 

“When the political will to implement FRA has been so poor in states like Himachal after 15 years of the FRA, how can the centre expect that states will ensure recognition of rights prior to forest land diversion?” their letter said. 

(Manshi Asher is a researcher-activist with Himachal-based Himdhara Collective. This article was supported by Land Conflict Watch, an independent network of researchers studying land conflicts, climate change and natural resource governance in India.)