The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was legislated with the primary purpose of recognising the rights (both individual and community rights) of the forest-dwelling tribal communities and other such forest dweller groups over the  resources of the forest on which these communities and groups have been dependent on for a multitude of necessities and requirements including livelihood, shelter, habitation, and other such socioeconomic needs. However, the sad reality is that despite the potency of the legislation to advance and secure the rights of its target groups, its implementation has been overwhelmingly deficient, to say the least.

The fundamental objectives of the legislation were to ensure that legal recognition is given to both community and individual rights of the forest dwellers and to empower and encourage self-governance among the marginalised tribal groups in these scheduled areas.

The ground reality is, however, quite distant from these objectives due to several problems that have intrinsically led to the deficiency and improper implementation of the Act. One such problem is that there is a clear lack of administrative empathy and concern since the vote bank percentage of the tribal communities in these scheduled areas is very thin; and, therefore, governments most conveniently have continually and time and again neglected their duty for an effective implementation of the Act.

Further, it is pertinent to mention that in a multitude of cases, the forest officials who were tasked with the processing of the claims of the forest dwellers for the implementation of the forest rights have continually neglected their duties either due to the lack of awareness and information or owing to disregard for the rights of the forest dwellers and tribal communities.

Adding on to that, the forest bureaucracy has further aggravated the implementation of the process. Not only has it blatantly misinterpreted the legislative intent of the Act as an instrument for regular encroachment rather than providing welfare rights and protective measures for the tribal communities, but it also does not want to give up the draconian control in the fear of losing the substantial power it holds over the forestland and owing to the fear of losing access to the vulnerable natural resources from which it reaps massive profits.

As per the Ministry of Tribal Welfare report on the implementation of the FRA, it was found that as of April 2018, only 18.66 lakh claims were accepted out of the 42 lakh filed all over India, which stands at a meager 44.4%. Even this as per many sources is an overestimation or over-reporting as questioned by many prominent NGOs and research institutions.

Now, if the situation relating to the implementation of the Act in Odisha is to be specifically dissected, it is observed that the roadmaps for the individual and community rights prepared by the Gram Sabha suffers from an inherent lack of educational prowess as well as technical capacity and knowhow on the subject. This is causing the Government authorities and forest bureaucracy to take advantage of it and encroach upon the decisions to be taken such as influencing in giving permits to mining-based companies for profit. So, the rights of forest dwellers are being sabotaged; and on the other hand, the authorities and companies make huge profits from the infringements on the rights of the tribal communities.

In this context, the Supreme Court observed in a landmark judgement in the case of OMC Ltd Vs MoEF & Others, 8 April 2013 (Niyamgiri Case), "No project can be carried out in the forests without the approval of the Gram Sabha." It further rejected the petition of the Odisha Mining Corporation in 2016 wherein the decision of the Gram Sabhas was challenged.

Since the implementation of FRA in Odisha, 580,040 acres of forestland (under cultivation/occupation) has been legally recognised as individual forest rights titles with 378,675 households (66%), which is quite a bit higher than the national average. However due to the significant size and populace of tribal communities in Odisha, this percentage has to further ameliorate.

Maharashtra Governor Bhagat Singh Koshyari, who has issued a notification in 2020 by using his powers under subparagraph (1) of paragraph 5 of the Schedule V of the Constitution modifying the Forest Rights Act, 2006 that will enable forest dwelling Scheduled Tribes and other traditional forest-dwelling families to build houses in the neighborhood forest areas, in Odisha context also similar or better decisions can also be notified by the Governor of Odisha. The decision will provide a major relief to Scheduled Tribes and other traditional forest-dwelling families living in the scheduled areas of the State. It will most importantly prevent the migration of forest dwellers outside their native villages and provide them housing areas by extending the village site into forest land in their neighbourhood.

Also, the Odisha Forest Department should take an active role to undertake projects that create a Value Chain, which essentially is a balance between deriving greater economic profit from the forest resources and also benefiting tribal communities and OFDs while maintaining sustainability.

The Odisha Government may also look at other States who have come up with implementation practices to improve the performance of the FRA; like the Government of Chhattisgarh has taken a progressive step of issuing genealogy certificates to local communities as a proof of period of residency in a particular area for facilitating evidence especially for OTFD claims and decided to consider all rejected claims afresh while the  Andhra Pradesh Government made good use of technology (GIS) in demarcating individual and community areas with near accuracy level.

There are multiple impediments, as discussed, that have obstructed the performance and effectiveness of the implementation of the Forest Rights Act, but with the right measures it can be steadily and progressively ameliorated. Forest rights are of paramount significance for the survival and livelihood of tribal communities and, thus, it is imperative that the Government takes active action to fulfil the legislative intent with which the Act has been brought to life.

(Jyotiranjan is an Additional Central Government Standing Counsel, Central Administrative Tribunal, Cuttack, and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT; Hindol and Sidhant are students of School of Law, KIIT)