Eligibility Criteria for FDSTs and OTFDs under the Forest Rights Act, 2006 – Frequently Asked Questions (FAQs)
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, commonly known as the Forest Rights Act (FRA), recognises and vests forest rights and occupation of forest land in eligible forest-dwelling Scheduled Tribes (FDSTs) and Other Traditional Forest Dwellers (OTFDs).
The Act provides specific eligibility criteria for recognising individual and community forest rights. Understanding these criteria is essential for claimants, Gram Sabhas, Forest Rights Committees and concerned authorities involved in the implementation of the FRA.
The following Frequently Asked Questions (FAQs) explain the eligibility conditions, documentary evidence, meaning of primary residence, bona fide livelihood needs and the rights of pastoralist and nomadic communities under the Forest Rights Act, 2006.
Frequently Asked Questions (FAQs)
1. What are the eligibility criteria for a Forest Dwelling Scheduled Tribe (FDST) to claim rights under the FRA?
According to Section 2(c) of the Forest Rights Act, 2006, to qualify as a Forest Dwelling Scheduled Tribe (FDST) and be eligible for recognition of rights under the FRA, the following three conditions must be satisfied by the applicant(s), who may be an individual member or a community:
- The claimant must belong to a Scheduled Tribe in the area where the rights are claimed.
- The claimant must have primarily resided in forest or forest land prior to 13-12-2005.
- The claimant must depend on the forest or forest land for bona fide livelihood needs.
2. Can persons belonging to Scheduled Tribes who have moved to non-Scheduled Areas within the State claim forest rights as FDSTs?
To claim forest rights as an FDST, the FRA requires that the claimant should be a Scheduled Tribe in the relevant area.
In some States, a person's Scheduled Tribe status is restricted to a particular area or district within the State. However, in other States, as per the Constitution (Scheduled Tribes) Order, 1950, Scheduled Tribes are recognised as such throughout the entire State and not merely in their area of domicile, Scheduled Area or any other geographical location.
For example, in the State of Himachal Pradesh, members of Scheduled Tribes from Lahul and Spiti (a Scheduled Area) who may have moved to Manali (a non-Scheduled Area) in District Kullu continue to remain Scheduled Tribes under the Presidential Order of 1950. They do not lose their Scheduled Tribe status merely because of a change in domicile within the State.
3. What are the eligibility criteria for an Other Traditional Forest Dweller (OTFD) to claim rights under the FRA?
To qualify as an OTFD and be eligible for recognition of rights under the FRA, the following two conditions must be fulfilled:
- The claimant must have primarily resided in forest or forest land for three generations (75 years) prior to 13-12-2005.
- The claimant must depend on the forest or forest land for bona fide livelihood needs.
It is important to note that Section 2(o) refers to "any member or community" for this purpose. Therefore, if an OTFD village establishes its eligibility under the Act, there is no requirement for every individual to establish eligibility separately.
4. What documentary evidence is required for OTFDs to establish their eligibility under the FRA?
Claims of OTFDs are sometimes rejected by State authorities on the ground of lack of evidence of occupation of land for three generations. Such rejection is not in accordance with the law.
Section 2(o) requires that the "member or community" should have primarily resided in forest or forest land for at least three generations (75 years) prior to 13-12-2005 and should depend on the forest for their bona fide livelihood needs.
Once this eligibility criterion is satisfied, the vesting provision of the Act, namely Section 4, does not differentiate between Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers.
Any two evidences specified under Rule 13 of the Forest Rights Rules can be submitted while making a claim. Insistence on any particular form of documentary evidence for consideration of a claim has been held to be illegal by the Gujarat High Court in Arch Vahini vs. State of Gujarat & Ors.
5. What is the meaning of the phrase "primarily resided in forests or forest land" with regard to the eligibility of OTFDs?
The phrase "primarily resided in forest or forest land" does not necessarily mean occupation of forest land.
Proof of residence in forests for 75 years in the area where the claim has been filed, along with current dependence on forest land, will be sufficient for consideration as an OTFD.
The Ministry of Tribal Affairs clarified through its Circular dated 09.06.2008, No. 17014/02/2007-PC&V (Vol. VII), that:
"Such Scheduled Tribes and other traditional forest dwellers who are not necessarily residing inside the forest but are depending on the forest for their bona fide livelihood needs would be covered under the definition of 'Forest Dwelling Scheduled Tribes' and 'Other Traditional Forest Dwellers' as given in Sections 2(c) and 2(o) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006."
It is also important to note that it is not necessary to prove uninterrupted exercise of forest rights for 75 years. Such a requirement would impose an extremely onerous burden of proof on claimants and is not the intention of the law.
6. If a forest was notified only 50 or 60 years ago, how can OTFDs establish 75 years of residence in such forests?
The date of notification of a forest is not a relevant criterion for determining the eligibility of OTFDs under the FRA.
The FRA applies not only to notified and classified forests but also to all categories of forests within the meaning of the term "forest", as recognised by the Supreme Court.
Forests have existed in the country for centuries, much before the introduction of any legal regime for forest protection.
For establishing eligibility, OTFDs can rely upon and produce two or more of the evidences listed under Rule 13, including oral testimony and physical evidence. They are not restricted only to Census of India data.
7. Can the period of residence in two different villages be combined to calculate 75 years of residence?
Yes. Section 2(o) of the FRA does not require claimants and their ancestors to prove that they lived in the same village for 75 years.
The requirement is that they should have been forest dwellers for 75 years prior to 13-12-2005.
For example, if a community resided in one village for 50 years and subsequently in another village for 25 years, both periods can be considered for establishing the required 75 years.
It is important to clarify that the particular forest-dwelling community has to establish this fact. It is not necessary for every individual claimant to prove it separately.
8. What is the meaning of "depend on the forest or forest land for bona fide livelihood needs" under Sections 2(c) and 2(o) of the FRA?
The term "bona fide livelihood needs" has been explained under Rule 2(1)(b) of the Forest Rights Rules as follows:
"Bona fide livelihood needs" means fulfilment of livelihood needs of self and family through the exercise of any of the rights specified in sub-section (1) of Section 3 of the Act and includes the sale of surplus produce arising out of the exercise of such rights.
This definition clarifies that bona fide livelihood needs do not mean mere survival.
The FRA and Forest Rights Rules recognise that forest-dwelling communities are not restricted to mere subsistence but are entitled to a healthy standard of living.
A plain reading of Sections 2(c) and 2(o) shows that the word "primarily" qualifies the expression "resided", but there is no such qualification on the requirement of dependence on forests and forest land.
Therefore, the fact that a large proportion of the population in a State depends on forests for bona fide livelihood needs does not disqualify applicants from claiming forest rights.
9. Can a State Government declare that persons holding permanent or Government jobs are not eligible as OTFDs?
No. There is no provision under the FRA that requires forest dwellers to be solely or primarily dependent on forests for their livelihood.
The Act also does not provide for disqualification of persons whose family income is derived from multiple sources.
A family may depend on forest rights for its livelihood needs while supplementing its income through Government employment or other salaried employment.
There may also be families where one or more adult members have salaried jobs requiring them to live in urban areas, while other family members continue to reside in villages and depend on forests and forest produce.
10. Where one spouse works as a Government servant and the other family members reside in a village, can such a family claim rights under the FRA?
Yes, provided the other eligibility criteria under the FRA are fulfilled.
There may be situations where one spouse works as a Government servant or in salaried employment, while the other spouse and family members continue to reside in the village.
It would be contrary to the letter and spirit of the FRA to deny forest rights to such families merely because one spouse has obtained salaried employment.
The FRA does not contain any statutory provision prohibiting recognition of forest rights in such cases.
Furthermore, the FRA does not restrict recognition of forest rights only to families. A claimant may be an individual, family, community or Gram Sabha.
Therefore, the disqualification of one family member does not automatically disqualify other members who independently satisfy the eligibility criteria.
11. What is the status of grazing rights of pastoralist and nomadic communities residing on revenue land under the FRA?
Merely residing on revenue land does not disqualify pastoralist or nomadic communities from claiming forest rights, provided the grazing rights are sought over forest land.
Forest land has been widely defined under Section 2(d) of the FRA.
Furthermore, Section 3(1)(d) specifically recognises the following community forest rights:
"Other community rights of uses or entitlements such as grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities."
The FRA specifically recognises the traditional and customary pastoral practices of such communities, including seasonal grazing and access to forest resources.
12. Before which Gram Sabha(s) should pastoralist and nomadic communities file their claims?
Claims can be filed before their own Gram Sabhas.
Where the rights are exercised in forests extending across several villages, claims should also be filed before all the Gram Sabhas through which the communities traditionally have rights of passage and temporary grazing.
Such claims may be submitted collectively through traditional community institutions or by individual members.
As per Rule 12(1)(c) of the Forest Rights Rules, the Forest Rights Committee must ensure that claims of pastoralists and nomadic tribes are verified in the presence of such individuals, communities or their representatives.
No decision regarding their rights should be taken in their absence.
13. Can delayed claims of nomadic pastoralist communities be rejected by the Forest Rights Committee?
No. Delayed claims should not be rejected merely on the ground of delay.
Nomadic pastoralist communities are often required to move from one place to another and may not be aware of the requirement to submit claims within a particular time frame.
Therefore, the Forest Rights Committee should not refuse to entertain such claims merely because they have been submitted at a later stage.
Related Posts
* The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
* The Forest Rights Rules, 2008
* The Forest Rights (Amendment) Rules, 2012
* Section 3(2) of the Forest Rights Act, 2006 – Diversion of Forest Land for Government Facilities
Conclusion
The Forest Rights Act, 2006, provides a legal framework for recognising and vesting forest rights in eligible Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers.
The eligibility criteria under Sections 2(c) and 2(o), the evidentiary provisions under Rule 13 and the community rights recognised under Section 3 are important aspects of the implementation of the Act.
Proper understanding of these provisions is essential for Gram Sabhas, Forest Rights Committees, forest-dwelling communities and implementing authorities to ensure fair and lawful recognition of forest rights.
Legal References:
- The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
- The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2008, as amended.
- Section 2(c) – Forest Dwelling Scheduled Tribe.
- Section 2(d) – Forest Land.
- Section 2(o) – Other Traditional Forest Dweller.
- Section 3 – Forest Rights.
- Section 4 – Recognition and Vesting of Forest Rights.
- Rule 2(1)(b) – Bona Fide Livelihood Needs.
- Rule 12 – Procedure for Verification of Claims.
- Rule 13 – Evidence for Determination of Forest Rights.
- Ministry of Tribal Affairs Circular dated 09.06.2008, No. 17014/02/2007-PC&V (Vol. VII).
- Arch Vahini vs. State of Gujarat & Ors., Gujarat High Court, Judgment dated 03.05.2013, PIL No. 100 of 2010.
Disclaimer: This article is intended for general information and awareness regarding the Forest Rights Act, 2006. Readers should refer to the original Act, Rules, Government notifications and relevant judicial decisions for legal interpretation and implementation.
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