The full form of the Forest Rights Act, namely ‘The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006’, makes it clear at the very outset that it is an umbrella legislation designed to include all communities that have resided in forest areas and had a traditional association with forests for generations. If there were any doubt about the eligibility of pastoralist communities, they are completely removed by no less than nine explicit references to such communities in the Act and associated instructions as laid down in the ‘Forest Rights Act, 2006, Act, Rules and Guidelines’, published jointly by the Ministry of Tribal Affairs and the UNDP (see table).
Despite all this, pastoralist communities have not benefited from the FRA as much as might be expected, and it is useful to examine why. Lest the analysis sound discouraging, one must clarify that recent developments hold out considerable hope for pastoralist CFR. Multiple titles granted in Himachal Pradesh, one in Uttarakhand and rapid progress in Maharashtra are among the significant successes that should spur further efforts. In that sense it becomes all the more important that those initiating claims be clear about the complexities from the start, because the potential for successful outcomes is predicated on that understanding.
The use of the Act to gain rights has not been easy for any and all claimants. Through the complex history of its drafting, the FRA was subjected to a tug-of-war between tribal rights; exclusionary forest and wildlife conservation; the rights of other disenfranchised forest and peri-forest communities; and the perspectives of the Ministry of Tribal Affairs (MoTA), the Ministry of Environment and Forests (MoEF), the bureaucracy, the judiciary and political parties of different hues. This has resulted in a patchwork legislation that does not always translate into a functional mechanism. In addition, the same competing interests as well as the rapidly growing demand for land for industrialisation and infrastructure make the successful use of the FRA nearly as difficult as its drafting was. On this, one must overlay a general lack of awareness in many local administrations of the provisions of the Act. For example, the CFR process requires no application by communities to authorities beyond the Sub-Divisional Level Committee (SDLC) and the District Level Committee (DLC); yet, it is frequently seen that the Sub-Divisional Magistrates (SDMs) ask communities to obtain instructions from the District Collector or from the MoTA.
In this complex picture, however, tribal communities have had somewhat greater success than others. There are many reasons for this. The FRA originated in an effort to correct historical wrongs committed against tribal communities from the colonial period onwards. The administration of the Act falls under the purview of the Ministry of Tribal Affairs (MoTA), created in 1999 from the bifurcation of the Ministry of Social Justice to provide a special focus on tribes. Tribal communities are in the foreground of legislation and administrative schemes because they enjoy Constitutional protection. There are administrative territories designated as Scheduled Areas, where the central government directly safeguards tribal interests. Tribal communities have also been more aware of the Act than pastoralists, perhaps because there have been more CSOs and NGOs working on tribal issues than on pastoralist ones, or because of a history of tribal activism engaging with rights issues. And tribal communities are largely sedentary, while pastoralists are by definition mobile and therefore dispersed.
|References to Pastoralist Communities in the Forest Rights Act
|1. In this Act, unless the context otherwise requires, - (a) "community forest resource" means customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access;
|--- [Definitions 2a]
|2. …"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;
|--- [Definitions 2c]
|3. other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities;
|--- [Chapter 2, 3d]
|4. Functions of District Level Committee - The District Level Committee shall…examine whether all claims, especially those of primitive tribal groups, pastoralists and nomadic tribes, have been addressed keeping in mind the objectives of the Act;
|--- [Gazette Notification, 8b]
|5. Process of verifying claims by Forest Rights Committee - (1) The Forest Rights Committee shall, after due intimation to the concerned claimant and the Forest Department…ensure that the claim from pastoralists and nomadic tribes for determination of their rights, which may either be through individual members, the community or traditional community institution, are verified at a time when such individuals, communities or their representatives are present;
|--- [Gazette Notification, 12, 1c]
|6. Process of Recognition of Community Rights - The District Level Committee shall facilitate the filing of claims by pastoralists, transhumant and nomadic communities as described in clause (d) of sub-section (i) of Section 3 before the concerned Gram Sabhas.
|--- [Gazette Notification, 12B, 2]
|7. Nature of community rights enjoyed: Community rights…Traditional resource access for nomadic and pastoralist, if any: (See Section 3(1)(g) of the Act)
|--- [FORM – B CLAIM FORM FOR COMMUNITY RIGHTS, 3c ]
|8. …(Attach a map of the community forest resource, showing location, landmarks within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities to which the community had traditional access and which they have been traditionally protecting, regenerating, conserving and managing for sustainable use. Please note that this need not correspond to existing legal boundaries.)
|--- [CLAIM FORM FOR RIGHTS TO COMMUNITY FOREST RESOURCE, 5]
|9. The District Level Committee should also facilitate the filing of claims by pastoralists before the concerned Gram Sabha(s) since they would be a floating population for the Gram Sabha(s) of the area used traditionally.
|--- [Government of India Ministry of Tribal AffairsGuidelines on the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, iii. Community Rights, c]
Sedentary communities living in or near forests on a permanent, year-round basis have several advantages over mobile ones when it comes to documentation for official records, securing rights, accessing benefits from government schemes and much else. Whether it is census surveys, property records, voter lists or information for targeting support to vulnerable groups, they are largely premised on the idea of people being linked to a location. The case for rights over land and other resources is, likewise, easier to make when the people and the land are spatially and temporally inseparable.
Settled groups are also better placed to ensure their inclusion in any enumeration exercise because they will be present at the same location whenever it might take place. Given that inclusion in an official record often needs to be pursued relentlessly over long periods for success, settled communities are once again in a better position to do so. Further, they are more likely to be perceived as belonging to a location by other settled communities from that location. While there may be competing claims for land and resources between them, there is a somewhat better environment for staking the claims in the first place.
This gains significance because CfR claims require that the community or communities staking the claim ensure that it does not infringe on the rights of other communities of the area. Pastoralist CFRs therefore require the cooperation of sedentary communities as well as other pastoralist communities inhabiting the same area, including communities from bordering villages. In this dynamic, it is seen that local sedentary communities can take advantage of pastoralists’ absence to hold gram sabha meetings and pass resolutions against the latter, such as by saying that grazing by pastoralist herds causes deforestation. Such actions disenfranchise pastoralists in absentia.
In fact, pastoralist mobility has all kinds of implications in the claims process, including the fact that pastoralist CFR claims usually have to be staked in multiple villages and districts, sometimes even in multiple States. This unique requirement can only be fulfilled if there is coordination between the administrative authorities in the districts and States concerned. Most authorities are, however, unaware that this responsibility is theirs. Multi-district CFR also implies that the requirement of cooperation of other communities is not limited to one location.
For example, many instances of pastoralism involve home villages with summer pastures that are ethno-geographic domains as opposed to regions that pastoralists visit for seasonal access to winter pastures or pass through on their way there. There was a degree of reciprocity and symbiosis with local communities along these way-stations and at the winter destinations earlier. When pastoralists passed through or arrived at distant farmlands in the fallow season, their herds were welcomed by farmers because the dung they deposited in fields while grazing on crop stubble after the harvest was highly valued as a fertiliser. If we take the example of Himachal Pradesh, it was not just a utilitarian relationship. Pastoralists and the communities they visited when they migrated to their winter pastures considered each other family in a very real and literal sense.
These ties are weakening. Chemical fertilisers have replaced dung, land is more contested, identities are narrowing, and the social membranes that allowed for interaction are hardening into boundary walls. Moreover, the FRA is replacing customary arrangements with legal entitlements, which can itself alter relationships. Given all this, there can nowadays be a perception of pastoralists as intruders, outsiders staking a claim over areas that don’t ‘belong’ to them.
The continuing tug-of-war between community rights and wilderness conservation takes its toll as well. This is evident in the impact of ‘Protected Areas’ on claims relating to pastoralist migratory routes and resource access alike. Conservation in India has been exclusionary, premised on the unsubstantiated axiom that wildlife and wilderness areas must be completely fenced off from human beings if the former are to survive. Official declaration of such areas as National Parks, Sanctuaries, Reserved Forests and so on becomes a formidable barrier in the claims process. The FRA is unambiguous in recognising not just ST but OTFD rights in all Protected Areas, but the latter have become the turf of the Forest Department, which must therefore be petitioned. The Working Plans of the Forest Department, which mention pastoralist communities of the area, are one potential proof of entitlement that pastoralists may submit, but to submit them they must obtain them first. Unfortunately, Working Plans are public documents only in some States; not so in others.
Official categorisations of pastoralist communities too can play a huge role in determining the ease or difficulty of the claims process. ‘Pastoralist’ and ‘sedentary’ may be mutually exclusive terms but ‘pastoralist’ and ‘tribal’ are not entirely so. A few pastoralist communities, such as the Rabaris in the Gir National Park and the Barda Wildlife Sanctuary in Gujarat, are listed as Scheduled Tribes (STs), while Rabaris elsewhere are not. You also have some pastoralist communities that are categorised as ST in certain regions but not others. Gujjars are a scheduled tribe in Himachal but not in Uttarakhand. The Gaddis of Bharmour in Himachal Pradesh have ST status, but the same community in Himachal’s Kangra District do not. Scheduled Tribe pastoralists are however a small cohort; the vast majority of pastoralists across the country are not STs. They therefore fall under the Other Traditional Forest Dwellers (OTFD) category for the purposes of the FRA.
This is important, because it brings us to a major challenge. The FRA makes a very sharp distinction between STs and OTFDs in the criteria for verification of rights. Any CFR claims process must gather and provide evidence as per this distinction:
We have been talking of the challenges of pastoralist CFR claims, but we must also acknowledge enabling provisions in the Act to mitigate those difficulties for pastoralists and other forest-dependent communities. It is these provisions in particular that have been instrumental in gaining such successes as have been gained and nurturing hope of more such successes.
The preliminary requirement of the process is the holding of a gram sabha, a village meeting. In the rural governance framework, there is a statutory requirement to hold gram sabhas three or four times a year, but under the FRA a separate, special gram sabha may be called for and held in order to start the claims process. Once a Forest Rights Committee (FRC), the representative body that will pursue the claims process, is formed by the gram sabha, it is a statutory body authorised to take suo motu decisions in certain circumstances. For example, the SDLC member’s presence is required for the physical verification of the resources that have been mapped by the FRC. If there is no response from the former despite three requests over a specified period, the joint gram sabhas of the area in the company of the Forest Officer and the SDM can go ahead with the verification despite the member’s absence.
There is also considerable flexibility in choosing the constituents of the gram sabha. If the gram panchayat consists of thousands of households, it can be very difficult getting enough households to attend so that the requisite 50% quorum may be obtained. Another problem is that a gram sabha representing the population of a village or set of villages may be dominated by powerful castes, making it difficult for pastoralists and other forest-dependent communities to form an FRC. In such situations, the gram sabhas held for the CFR process may be constituted by all the forest-dependent communities to the exclusion of others.
Finally, there are enabling provisions with respect to the nature of evidence required. The evidence can, for instance, include receipts for fines that have been levied in the past on forest-dependent communities grazing their herds, collecting minor forest produce, fishing and so on in Protected Areas (which are essentially fines wrongly levied since the Act allows them to do so). But it goes beyond that. In the absence of documents such as historical records, grazing permits and the like, the oral testimony of community elders may be recorded and used as evidence.
Where then is pastoralist CFR headed? The answer depends on multiple factors, including greater awareness of the Act among pastoralist communities as well as local administrative agencies; better administrative coordination for multi-district claims; the ability to make common cause with other forest-dependent communities; a supportive environment at the State level as is seen in places like Himachal Pradesh and Maharashtra; and the base provided by vigorous pursuit of tribal CFR in a region. But if one were to step back from these details, then the biggest potential asset would be a greater recognition of pastoralists as a constituency, one that has made and makes significant contributions to the economy, livestock genetic wealth, sustainable ecosystem use, community-based ecological governance and cultural richness and diversity.