The Forest Rights Act at Twenty: Recognition without Restitution

This year, the Forest Rights Act turns twenty. Not with fanfare. A Supreme Court that has already issued an order to evict more than thirty lakh forest-dwelling families in one order, and a community forest rights regime that is strong on paper but weak in practice, with over two and a half lakh claims rejected.

At this stage, the question to ask is not whether the Act was well-intentioned it was. The issue is why two decades of implementation have yielded so little of the law's actual promise, and whether this is a fluke or a structural problem.

In this article, I would like to discuss three arguments. The first concerns numbers: why the rejection rate of forest rights claims is not a data issue, but an institutional design issue one that Parliament has created and never solved. The second concerns the Supreme Court’s episodic engagement with the Act, which has at times proved damaging, consistently imposing an evidentiary burden on forest occupation instead of a constitutional right. The third, and least studied, aspect of the Forest Rights Act that I wish to look at is the paradoxical effect of the formal claims process in making previously tolerated occupation into documented encroachment and giving the forest bureaucracy a new tool of dispossession in the guise of rights.

The Forest Rights Act is not a bad law. It’s a fine law given to institutions that have all the structural reasons not to work. It's important, because it tells you what needs to change.

The Numbers That Cannot Be Argued Away

As of 2023-24, more than 47 lakh individual claims have been submitted. Only about 22 lakh titles were issued, which is 47 per cent of all the filings. The rejection rate in Uttarakhand is more than 60 percent. In Assam, less than 10% of the claimants were awarded a title. The standard defence is that many rejections were legitimate, that is, claimants did not have documentary evidence or that their occupation was after the 2005 cut-off. This is not an unreasonable argument.

However, it is not resistant to the field evidence. Research by Oxfam India, Odisha based organisation Vasundhara and the Indian School of Business have shown that claims have been denied without the claimant being heard, without a written reason being given and without a site visit. All of which is required under Rule 12 of the Forest Rights Act Rules, 2007. In a survey conducted in Chhattisgarh in 2016, it was observed that the Forest Department officials are effectively determining the fate of the villagers, without having any adjudicatory authority under the Act.

This is not carelessness on the part of the administration. It is structural. The forest bureaucracy regulates access to forest and keeps land records for claims to be checked against. It is of institutional interest to maintain territorial sovereignty. It was not optimism but institutional naivety a naivety Parliament could neither have foreseen nor wished to confront to expect that this authority would be devolved to Gram Sabhas.

The Supreme Court's Incomplete Reckoning

In Wildlife First and Others v. Union of India, the Supreme Court directed state governments to evict all forest dwellers whose Forest Rights Act claims had been rejected an estimated ten to thirty lakh families. The order, passed on 13^th  February 2019, was stayed two weeks later, on 28^th  February 2019, when the government told the Court that the states had not been heard separately.

The episode showed that it was not just about the excess of the judges. The Court had accepted rejected claims as settled adjudications without considering whether the rejection process was lawful or not. It did not ask any questions regarding the Gram Sabha constitution, claimant notice, or written reasons. The rights-holders were regarded as a problem to be solved. But as critics will point out, the Court was imposing deadlines on a state that had been sitting on the issue for 10 years, and that's true: state governments had indeed fallen behind. However, the Court's instinct was ecological, not constitutional. Tribal rights did not seem to be the starting point for adjudication, but rather the burden of proof.

Worse, in 20 years, the Court has never ordered a thorough review of the quality of rejections by Forest Rights Act, nor mandated that rejections be subject to judicial review before eviction proceedings are initiated. The Act’s procedural structure when dispossession takes place is not subject to sustained judicial review.

The Community Forest Resource Rights Gap: The Failure That Matters Most

The most transformative provision of the Act on paper is the rights of community forest resources management under Section 3(1)(i). They give the Gram Sabha the forests not just the cultivation plots. If implemented on a large scale, Community Forest Resource rights would truly be a transfer of ecological sovereignty from the state forest departments to the communities that have been stewards of these landscapes for centuries. In 2023, only about one lakh Community Forest Resource titles were distributed across the country, which is a small fraction of the eligible coverage.

The counter argument is that Gram Sabhas are institutionally and technically incapable of managing forest commons. It’s a historically uneducated and structurally self-serving concern. The communities now deemed to be unable to manage forests are the same communities that once did manage these landscapes prior to the establishment of the Forest Department. Capacity gaps are the product of intentional exclusion communities kept out of education, institutional recognition, and legal personality in forest decisions. The manufactured incapacity is an excuse that is self-explanatory and will continue to exclude people.

The Legitimation Paradox

The existing scholarship has not adequately addressed the paradox that the Forest Rights Act has paradoxically undermined, by establishing a formal claims-based recognition process.

Prior to the Act, a community's relationship to forest land was regulated by an imperfect but multi-layered complex of customary practice, revenue records, and long-standing occupation. It was a legally awkward grey area, but protective: the state was not able to claim clear title against communities whose factual existence was not denied. After the Act, a rejected claim no longer leaves the community in the position it occupied before the Act. It is an active redefinition of “illegal encroachment” as the previous occupation. The formal recognition process has created a new type of illegality, based on what was once contested but tolerated possession.

Across Odisha and Chhattisgarh, the Forest Departments have relied on the Forest Rights Act rejection order as the legal basis for eviction under the colonial law, the Indian Forest Act, 1927, which the Forest Rights Act was supposed to replace. The Act that was intended to free communities has created the paperwork that is displacing communities. The state has been using the language of rights to build the structure of exclusion. This is the legitimation paradox and it needs much more analytical attention than it has received.

What Twenty Years Require

The Forest Rights Act is not a defective statute. Its text the Gram Sabha's centrality, the Community Forest Resource framework, the free prior informed consent requirement under Section 4(2) reflects genuine constitutional imagination. The failure is in the institutional theory: the assumption that a law creating rights against the state could be administered by state officials with structural interests in its failure.

What is required now is not more claims processing. It is a redesign of institutional roles: removal of Forest Department officials from all adjudicatory functions, independent district-level tribunals with judicial powers, mandatory review of rejection orders before eviction proceedings begin, and a national audit of previously rejected claims. The Supreme Court has a role here that it has not yet played constitutionally grounding forest occupation within Article 21, rather than continuing to treat the Forest Rights Act as welfare legislation that the state may implement at its discretion.

Forest dwelling is not a privilege extended by the state. It is, for millions of communities, the material precondition for life itself. Twenty years from now, the Act's legacy will be measured not by the count of titles distributed, but by whether the communities for whom it was enacted still inhabit the forests to which it promised recognition. The law exists. The institutional will to honour it does not.