A Historical Injustice
The very word “historical injustice” is used in the preamble of the act “The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act 2006” to mention the injustice made to the traditional forest dwellers of our country for over the last three centuries. In the preamble it is clearly stated, “the forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and other traditional forest dwellers who are integral to the very survival and sustainability of the forest ecosystems” (Govt. of India, 2006).
Prior to British Raj in India traditional forest dwellers enjoyed their rights over forest produce as customary rights. It was the British who first discovered that the forests in India were rich in invaluable forest produces and these forest produces could be used commercially very profitably. This realization paved the way of alienating traditional forest dwellers from their own forestland and from their other ancestral rights over forest also. During the period 1876-1927, the British Government passed several forest-laws, but none of them recognized either the importance of Gramsabhas or the rights of forest- dwellers over the forest. Even after the departure of British, this very attitude towards the age-old relation between forest and forest dwellers did not change very much in independent India. In 1972 the Govt. passed the Wildlife (Protection) Act without even consulting the Gramsabhas (Gramsabhas, as defined the Forest Right Act 2006, is a village assembly, which shall consist of all adult members of a village and in case of States having no Panchayats, Padas, Tolas and other traditional village institutions and elected village committees, with full and unrestricted participation of women) over the area that might be earmarked for wildlife conservation in a forest. In 1980, the Govt. passed another act, the Forest Conservation Act, where it was explicitly stated that the Government can take over the land occupied by the scheduled forest dwellers, if need be.
The forest dwellers, as we have already told, were continuously denied from their legitimate claim over forest. However, that was not the end of the story. In addition, they were always tortured and even evicted in the name of saving the forest. To make this eviction legalized they were labeled “encroacher”. The role played by the British officials in this inhuman eviction process in the pre-independence period was taken over by our forest-officials in the post-independence period. The activities of these forest-officials in regard to inhuman behaviour to traditional forest dwellers got full support from the Ministry of Environment and Forest (MoEF). Between 1951 and 1988, the colonial Indian Forest Act 1927 was used to enlarge the ‘national forest’ estate by another 26 million hectares (from 41 to 67 mha). Based on unreliable paper records, the non-private lands of ex-princely states and zamindars were declared state forests largely through blanket notifications without surveying their vegetations / ecological status or recognizing the rights of pre-existing and users as required by law (Sarin, 2005). The real picture is that the areas which were, in this process, declared state forests were, in large, never forest land at all (Gopalkrishnan, 2008).
The attitude of the government towards traditional forest dwellers showed the first sign of change in the year 1988 when it declared the National Forest Policy. In this policy it was accepted that traditional forest dwellers should always be kept in association with forest conservation programme. Keeping in tune with this policy, the MOEF, on September 18, 1990, issued a set of six circulars to the Secretaries of Forest Departments of all States/ Union Territories, which decreed that pre-1980 occupation of forest land would be eligible for regularization, provided the State Government evolved certain eligibility criteria in accordance with the local needs and conditions. Moreover, some pro-tribal provisions like elimination of intermediaries and replacement of contractors by institutions like tribal cooperatives, non-engagement of outside labour in forestry activities were also there in this set of circulars. However, none of these pro-tribal provisions was implemented.
The continuous denial of rights of traditional forest dwellers was creating agitation among them. The government was also fully aware of that. As a result the government set up a one-member committee under the chairmanship of Dilip Singh Bhuria, a tribal Member of the parliament, to make recommendations on the features of the law for extending provisions of Part IXA of the Constitution of India ( Panchayats) to Scheduled Areas. The Bhuria Committee submitted its report in 1995, which recommended legal recognition of the Gramsabhas as the primary centre of tribal governance, tribal control over forest resources etc. Following this report, the Panchayats( Extension to the Scheduled Areas) Act 1996 ( the PESA) was passed. However, in spite of the potential of this Act to serve tribal interest in a much better way the Central government did not framed the Rules of PESA and left the issue to the discretion of State governments. Most of the State governments did not show any sign of implementing the Act.
The injustice that was being constantly made to the forest tribals took a new turn in the year 2002 in respect of a Public Interest Litigation in the Supreme Court. The judgment, passed by the Court on February 18, 2002, unequivocally stated that any regularization of forest encroachment prior to 1980 was to be cleared by the Court. The MOEF, however, misinterpreted this order to mean that all post-1980 encroachers were to be evicted. Accordingly on May 3, 2002 the Inspector-General of forests instructed state governments to evict the ineligible encroachers and all post-1980 encroachers from forest lands in a time bound manner.
The outcome of this instruction became devastating. An all-round eviction process was started by the forest department all over the country. In this eviction process diverse coercive means like setting fire to houses, destroying standing crops, trampling people’s dwellings with elephants and even firing and molesting of women, were employed by the forest officials. These atrocities are a grim reminder of similar agonies that have been the lot of adivasis in India for the last 200 years (Bhatia, 2005). As a result of this eviction process, MOEF admitted in parliament on August 16, 2004 that between May 2002 and August 2004 eviction were carried out from 1.52 lakh hectares ( Sarin, 2005).
In 2004, immediately before the Parliament election, the MOEF issued two new circulars in one of which the time set for regularization of forest encroachment was extended from October 1980 to December 1993. However, the Supreme Court put a stay order on these circulars. On the other hand, in spite of issuing such circulars by the MOEF the forest officials went on continuing eviction programme in a similar fashion. In the mean time, the first UPA government was formed in the Centre. In order to fulfill their pre-election commitment the new government, on December 21, sent an order to all states/ UTs to stop eviction programme with an immediate effect. In this order it was also mentioned that the order would be effected until the issue of tribal rights on forest was settled finally. Thereafter, on January 19, 2005, the Prime Minister convened a high-level meeting where it was decided that a bill named ‘The Scheduled Tribes (Recognition of Forest Rights) Bill 2005’ would be produced before the Parliament in the next budget session. The task of drafting the bill was left to the Ministry of Tribal Affairs on the argument that tribals could not be expected to get justice within the framework of forestry laws.
The bill finally tabled in the Parliament on December 13, 2005. But the government could not pass the bill because several provisions of the bill faced all-round criticism. The two main criticisms raised against the bill can be mentioned here. First of all, it was argued, why other traditional forest dwellers other than scheduled tribes be deprived from getting rights over the forest. Secondly, on what basis a certain date like October 25, 1980 had been fixed in the bill for regularization of rights. Facing debates the government sent the bill to a Joint Parliamentary Committee for making necessary changes, they considered essential. The Committee accepted both the criticisms mentioned above and made necessary recommendations accordingly. The revised draft of the bill, named ‘ The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Bill 2006’ , in which the cut-off date for regularization of encroachment of forest land by traditional forest dwellers was shifted to December 13,2005, the date on which the original bill was tabled. The lower house of the Parliament passed the bill on December 15, 2006 and the upper Parliament on December 18, 2006.However, due to the inaction and negligence of the government the Rules of the law was published only on January 1, 2008 and the new act got its effect from that very date.
THE ACT
The Act extends 14 rights to its beneficiaries. These 14 rights can be classified into four broad categories, namely 1. individual/family rights, 2. community rights, 3. right to rehabilitation and 4. right to protect, regenerate and/or conserve or manage forest land. We shall come to the discussion on these rights, but before that, we should first know who are eligible for these rights to enjoy what is actually meant by forest-land.
According to Section 2(d) of the Act “forest land” means land of any description falling within any forest area and includes unclassified forests, un-demarcated forests, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National parks”. On the other hand, regarding the eligible beneficiaries of the Act, the draft bill mentioned the traditional tribal forest dwellers only, ignoring non-tribal traditional forest dwelling communities altogether. However, after the recommendation of the Joint Parliamentary Committee non-tribal traditional forest dwellers were included in the list of eligible beneficiaries. To be an eligible beneficiary members of Scheduled Tribe pastoralist communities have to prove that they primarily reside in and they depend on the forests and forest land for bona fide livelihood needs. The non-tribal traditional forest dwellers, on the other hand, have to prove, in addition to this, that they primarily resided in the forest for at least three generations prior to the 13th day of December, 2005.
One of the most important rights that were extended to the traditional forest dwellers as individual/family right is the right of land patta. According to Section 3(1) of the Act land patta up to 4 hactares be given to eligible beneficiaries. The exact amount of patta is decided strictly by the actual land under occupation on December 13, 2005. The land patta can be for homestead land or agricultural land for self cultivation. The pattas be given to eligible beneficiaries jointly in the name of husband and wife. These are inheritable but neither saleable nor transferable.
Under Section 3(c) another vital right regarding minor forest products is mentioned. By “minor forest produce” the Act means all non-timber forest produce of plant origin including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers, and the like. The right to minor forest produce can, however, be registered both as an individual right and as a community right. According to Section 3(c) of the act the forest rights of traditional tribal and non-tribal forest dwellers include, along with several others, right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries. This simply means that minor forest produce can be used for personal purpose and it can well be sold to earn a livelihood.
In regard to right to rehabilitation the Act provides for in situ rehabilitation and alternative land in case of illegal eviction as well as protection against eviction of any description. The right to rehabilitation covers all illegal eviction prior to December 13, 2005 if (i) the displacement was due to State development interventions; (ii) no compensation was paid at the time of displacement; and (iii) the acquired land was not used for the specified purpose within five years.
Lastly, Section 3(i) of the Act recognizes the right to protect, regenerate, or conserve or manage any community forest resource, which the forest dwellers have been traditionally protecting and conserving for sustainable use. This right, according to many, is the most important one of the Act, in view of the fact that by extending such a right it is virtually recognized that it was the traditional forest dwellers and not the forest officials, who, from time immemorial, protects the forest for their own interest. Once this fact is admitted, it automatically implies that the traditional forest dwellers be the real right-holder of various forest rights, which are now being extended by the present act and which were so far being denied to them unjustifiably.
A Comment
The responsibility of implementing the Act has been bestowed on the ‘Gramsabha’. This clause has created a lot of controversy. According to the opponents, members of a ‘Gramsabha’ are mostly illiterate and hence are not deemed to be fit to sit in the chairs of judges. The supporters, on the other hand, has blown up this argument on the ground that since the members of a ‘Gramsabha’ are sons of the soil they are acquainted with local problems much more than some outsiders, like forest officials. If we accept that the arguments of both the parties are to some extent true, then even it can be safely concluded that by this provision of the Act a historical injustice will come to an end.
However, it should, in this context, be mentioned here that the final verdict regarding any kind of forest right does not lie with the ‘Gramsabha’. In fact, ‘Gramsabha’ is so large a body that it is virtually impossible to take any decision there. Therefore, in the Act there is a provision that the ‘Gramsabha’, in its first meeting, will build a Forest Rights Committee (FRC) which, henceforth, be the representing body of the ‘Gramsabha’. The initial judgment will be given by the FRC, which thereafter be passed to the Sub-Divisional Level Committee and finally to the District Level Committee for final verdict. This process, no doubt, nullifies the above-mentioned criticism of the opponent.
Another important allegation against this Act is that if four hectares of land per family is distributed among the traditional forest dwellers then it would certainly have an adverse impact on the total forest cover of the country. But this is a misleading allegation in the sense that the Act speaks of regularization of pre-occupied land only. Hence there is no chance of wiping out the existing forest cover of the country. Moreover, according to the MOEF total area of encroached forest-land is 13 lakh hectares, which is only 2 per cent of the recorded forest area in the country. So this allegation also does not stand at all.
The opponents of this Act also feared that this Act will pave the way for the destruction of forest and wildlife. But after the introduction of the Act in 2008 the real evidences state that provisions of this Act are constantly being used by local communities in different parts of the country to strengthen their conservative initiatives. For example, in Orissa, using this Act, over 10000 self-initiated forest protection groups have been fighting for legal rights over the community conservation process (Dash, 2009).
In brief, what we like to conclude is that in the advancement of protecting the rights of traditional forest dwellers in the consumption and conservation of forest-land and forest-produce the present law has a promising potential to go a long way. However, in our country we have many such laws with which we can be proud of, but we failed to do so simply because of unawareness of people regarding the existence of such laws. There is thus every possibility that same fate can be achieved by the Act in discussion. To avoid this ill-fate the government must take initiative and launch awareness programme. The task of the government in protecting forest right, which once started with introducing a bill in the Parliament, will complete its full circle only thereafter.
References:
- Bhatia, Bela (2005); Competing Concerns; EPW, Vol.XL, No.47.
- Bhullar, Lovleen (2008); The Indian Forest Rights Act 2006 : A Critical Appraisal; Law, Environment and Development Journal (4/1).
- Dash, Tushar (2009); Forest Rights Act : A Blueprint for future conservation; http://infochangeindia.org/200904207698/Environment/Features
- Sarin, Madhu (2005); Scheduled Tribes Bill 2005: A Comment; Vol. XL, No. 21.
