“They want us to give up on another chunk of our tribal land, and this is not the first time for the last time” – Sitting Bull. Schedule tribe is a group of historically disadvantaged people of India but the constitution of India considers schedule tribe as that group of people who are acquainted as such by the president of Indian under article 342 of the Constitution of India. The article is a detailed explanation of Forest Rights.
The characteristics according to which the president considers a group of people as a scheduled tribe is primitive traits, shyness with the public at large, distinctive culture, geographical isolation, and social and economic backwardness. The primitive tribal group comes under the scheduled tribe and this group is more backward than the scheduled tribe and in India 75 out of 705 schedules are identified as a primitive tribal group. The people of primitive tribal groups continue to live in a pre-agricultural stage of the economy and have a low literacy rate. Their population is stagnant or declining day by day.
The evolution of the tribe is, by Valmiki who composed Ramayana, basically the origins of Garasia and Bhilala tribe which descended from mixed Rajputs and Bhils marriage. The Adivasis or tribal are considered as Dalit or untouchable and unlike their subjugation as Dalit, they enjoyed their autonomy and depending on religion evolved different farming ways, mixed hunter and gatherer and control their land as a joint patrimony of the tribe.
The share of scheduled tribe population in 1971 was 6.94% and in 1981 was 7.85% and now according to the 2011 census, tribal people make up 8.6% of Indian’s population or 104 million people.
In India, scheduled tribes have resided in the forest since time immemorial. They live in the forest and shaped their life according to the ecology of that forest. They depend on the forest for their livelihood such as food, fuel, water, air, medicine, shelter and also for recreational retreats. They have lots of religious sentiment attached to the forest because they worship the trees, bushes, and animals which dwell in the forest and they believe that their gods and ancestors spirits reside in the forest for all their reasons they never want to deplete it and want to conserve it through their traditional conservative practices. There is a symbiotic relationship between the tribe and the forest. Regarding the relationship between forest and tribal people, the committee on forest and tribal in India (1982) stated that” they are not only forest dwellers but also for centuries they have evolved a way of life which, on the one hand, woven around forest ecology, on the other hand, ensure that the forest is protected against the degradation by man and nature”
Table of Contents
Forest Rights before Independence
In the pre-colonial period the inhabitants of the forest that are scheduled tribe enjoy forest resources without any restrictions of rulers because rulers have limited or no interest in the woodlands. As Ram Chandra Guha (1983) quoted “the waste of forest land……..never attract the attention of the foreman (pre-Britishers) government. Before independence, there were three authorities who claimed their rights over the forest, the first were the villagers of the nearby areas, the second authority were zamindars and the other feudal landlords and the third authorities was the government. Board of revenue proceeding of 5 August 1871 of Madras presidency stated that “All of them, without exception, are subject to tribal or communal rights, which have existed from time immemorial and which are as difficult to define and value as they are necessary to the rural population Here the forest are and always have been common property”
After this, the East India Company that is the Britishers came into the picture and started the onslaught of Indian forest and cleaned for revenue purpose, agricultural purpose, and commercial exploitation. Thus the arrival of Britishers in India is the beginning of the exploitation of forest resources and marked a new phase in the use of forest produce in India. By the entrance of Britishers, free access to the forest for the people is not permitted.
After all this, the forest act 1865 comes and this act was the first attempt in the description of guidelines of forest producers by the forest dwellers and maintain the state monopoly over the forest and also show the state empowered to declare any land cover with trees, herbs, shrubs as a forest this act is only for the government control forest there is no provision for the private forest.
Then forest act 1878 comes and this act is more comprehensive than the previous one and it divides the forest into three parts: reserve forest, protected forest and village forest. This act gives all the forest right to the government and the government prohibits certain activities like trespassing and pasturing the cattle.
By the mid of 19 century, a large chunk of forest was destroyed because of the construction of railways sleepers and it is a prodigious assault on the forest on more accessible forest resources.
And this forest act 1927 is the last act before the Independence of India. This act regulated the People’s right over the forest but also codified all the practices of forest officials. The forest officers got lots of power and they abused their power and forced many tribes to leave their native places and this Act was considered the biggest depletion with certain special provisions. It forced the communities to change their occupation. In 1935 forest was transferred from the union list to the state list according to the Government of India Act 1935.
Forest Rights after Independence
After independence, the first forest Policy was formulated in 1952 with the realization of maximum annual revenue from the forest in the nation. “the private forest which is not touched in the old policy is now under the new one in this policy there is a fee-charging for the grazing of the cattle”. So the rights which were converted to privilege in the colonial period were further into a concession in the policy. The forest policy of 1952 of free India is considered as the worst in comparison to colonial predecessors policy of 1894 because of every activity of tribal they charge fees and it became worse for tribal people.
Then a recommendation comes from the side of the national commission on agricultural in 1976 and it was disastrous from the tribal point of view because it reduces all the forest rights from people and suggest the commercialization of forest and in 1976 forest brought under the list of concurrent list through 42nd constitutional amendments and empowering centre to make laws.
After they set up a committee in 1980 for forest and tribal to achieve the coordinated policy and the chairman of this committee is Dr. BK Roy Burman an eminent anthropologist and committee gives its report on 1982 emphasis on the importance of forest in the life of tribal people. Committee also noted that the tribes rely on the forest not for their basic needs but also for other things such as fuel, fodder, etc. And earn one-third of their income from the sale of minor forest products, the committee also pointed out their benefits which flow to the tribal through the forestry conservation programme. And in 1985, the departments of the forest was transferred from the ministry of agriculture to the newly constituted ministry of environment and forest who drafted the national forest policy regulations approved by parliament in December 1988 the basic objective of the committee “is to formulate forest policy to ensure environmental stability and maintain the ecological balance including atmosphere equilibrium which is vital for the substance of all life forms, human, animal, and plants. The derivation of direct economic benefits must be subordinated to the principal aim”. The concept of joint forest management is evolved in this act. There are also some special provisions for the prevention of encroachments on reserve forest. A movement arose for the rights of tribal people and this movement forced the government to amend the Vth schedule and known as the Panchayat Extension to Scheduled Areas (PESA) 1996. It is important not because it provides for a wide range of rights and privileges but also because it provides a principal as well as a basis for future lawmaking to the tribal.
Constitutional Rights to Tribal People
The Constitution of India has provided special provisions to the tribal people to safeguard their interests, these include:-
- “Article 15 of the Indian Constitution states that the state shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. This explains that every citizen of India is provided with equal rights and opportunities without any discrimination. This article clearly eradicates the untouchability in the society which was being practised with such marginalized sections (Schedule Tribes and other minorities) from the historic times.”
- “The Government of India has reserved seats in The House of People (Lok Sabha) and The State Legislative Assemblies under Article 330 and 332 of The Constitution of India . In order to provide them equal representation in the legislature.”
- “Article 19(5) of the Constitution of India guarantees the tribal people the right to own property and enjoy it in any part of the country . It was done to ensure the integrationist approach of JL Nehru.”
- “Article 338 of The Constitution of India grants the right to appoint a Commissioner to look after welfare activities of tribes. For which a National Commission for ST (NCST) was established under article 388(A) on 19 Feb 2004 through Constitutional Amendment Act, 2003.”
- “Article 46 of the Constitution of India states that The State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular, the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
- “Under Article 275(i) of the Constitution of India, the Centre Government is required to give grants-in-aid to the State Government for approved Tribal Welfare Schemes. This will ensure the welfare of tribes in a very precise way.”
Failure to ensure Constitutional Rights
After the entrance of private property of modern Nation-States the tribes have no legal right over their lands basically, the forest where they are living and doing cultivation for generations it becomes very easy for the non-tribal to capture their lands and also government not given any support to Tribal and bypassing legislation they declare all the unregistered land as reserved or protected forest or sanctuaries and national parks.
The laws make tribal people illegal for tribal communities to access the forest produce or to the grazing of the cattle and also threatened and penalized them for entering the forest people of tribal communities. They start living in terror situation of being evicted from their homes anytime without any reason after few years when they raise their voice against the oppression which they tolerate for many years and the demand their basic legal rights the state had used force to crush them to the extent of denying them the rights of life after all this the forest conservative act of 1980 come into implementation and thousands of acres of land of tribal communities were obscure overnight.
And last India come up with the schedule tribe and other traditional forest dwellers (recognition of forest right act) in 2006 the main aim of the act is restoring and recognizing all the rights of tribal which were snatched away from them before but the implementation of the act does not work well and the Government of India still fails to notify the rules and procedures of forest right Act 2006 and there are 2,57,226 forest cases pending against 1,62, 692 tribal communities between 1955 and 30th June 2006 under a different section of the forest act of 1927.
Analysis of Forest Right Act 2006 in context of Forest Land
“Section 3 of the act tells us about the allow of the several heritable, inalienable and non-transferable forest right of the beneficiaries this is in lots of debate especially for the rights to hold and live in the forest land under individual and common occupation for lovely wood or for self-cultivation”. The two most controversial matters are this act is the area of forest land to be distributed and the cutoff date for the identification of the right.
Area of Land to be distributed
The bill provides that around 2.5 hectares of forest land have been acquired per the nuclear family of an FDST. This data feared the environmentalists which provide 2.5 hectares to each of 20 million families, is equal to 50 million hectares of total acquired land out of 68 million hectares of forest cover in India. They also say that it will somewhere transfer the land into the hands of timber and land mafias.
However, this concern of environmentalists was made clear by the bill that these 2.5 hectares of land is only for the purpose of people/tribes for livelihood only and also this land includes that part of the forest which is already degraded or denuded completely. MoEF also said that this forest land was made available as of the motive to increase the land under forest cover. The original land under tribal or other communities is around 1.25-1.34 which is less than 2% of the total recorded forest land in India.
JPC’s committee advised the removal of this land grant of forest act and instead provided this grant on the basis of “as is where is the basis” which was strongly unaccepted by the environmentalists. At last, Section 4 (6) of the act gave the integrated solution which provides for the land of a maximum of 4 hectares under the actual occupation [hunting and gathering forest produce] of an individual/family/community. Whereas, it was being discussed that giving lands to the nuclear families should be avoided as it will break the forest land into fragments while it was maintained earlier by the communities together. Special provisions are provided to the north-east states under Rule 30.
Cut-Off Date for Recognition of the Right
The activists of tribal right thought that the cut-off date, 25 October 1980, of the bill for the declaration of occupation based on the forest areas to be too conservative and asked the state that this date needed to be extended. While environmentalists thought this would regulate the encroachment of forest land, which clearly is not the aim of the act.
“JPL’s recommendation, Section 4(3) of this act says that the forest area should have been occupied before 13 December 2005 which contradicts section 2(O) of the Act, which says ‘ other traditional forest dwellers’ should be in occupation of the forest for at least 25 years. This 2005 cut-off date also contradicts clause 6.4(iv) of the Draft National Displacement Policy.”
Other Forest Rights
- The act gives the permissions and ownership to collect, use and dispose of minor forest produce (including all non-timber forest produce). The final rules of the act do not consist of the provisions in Rule 13(7) which the Gram Sabha should ensure that these rights come with the responsibility for use for these minor forest produce in a sustainable way while not causing any harm to the environment.
- The right to conserve, degenerate, protect and manage any community forest are, which were earlier conserved by tribes for sustainable use. The bill also consists of the right to penalize the one violating traditional rights of conservation.
III. The right includes an important inclusion of traditional knowledge to the forest biodiversity and cultural diversity. They will have the right to access, control, develop and protect traditional science and technology with respect to biodiversity.
- In the cases where the ST’s or the forest dweller were displaced illegally in the name of development projects and does not fall under legal entitlement of rehabilitation before the cut-off date of 13 December 2005 have the right to in situ rehabilitation and include alternate land grants.
Obligations under the Act
This act gave powers to the Gram Sabha that it is its responsibility in the areas where such forest right holders exist to look after and protect the forest wildlife and biodiversity and to ensure that their habitat is safe and no one causes any destructive practices, which affect cultures of tribal people. This body has the power to penalize the one who is violating the community decisions of conservation within such areas, search provisions are provided under rule 20(1) of the act.
The bill talks about a rule 24(2) that the Gram Sabha could also ask for help from the Forest Department or other local authority in order to redress any issue related to violation of norms of the community and could direct the particular authority to take actions under the law, but the final act fails to mentions any such rule. Both the Act and rule do not contain any provision to redress the problems in the situation where the Gram Sabha fails to solve the issue.
Orissa Mining Corporation v. Ministry Of Environment And Forest & Ors
“The case related to the writ of certiorari. In this case, there is a conflict between the ‘rights’ and ‘development’.” The facts of the case are Orissa mining company wanted to set up a factory in the Niyamgiri hills near Hundaljalihn Rayagada and Kalahandi districts in Dongaria Kondh tribal lives and worship God Niyam Raja for many generations. The bauxite mining project requires forest clearance which has been the natural habitat of this tribe for years. The mining activity in the hills affected the biodiversity of the forest so the apex court said that there are some religious rights i.e. “rights to worship over hills and forest”. Therefore the apex court gave the directions to the state government of Orissa that the issue should be placed before the concerned Gram Sabha along with the notice to the Ministry of Tribal Affairs and it will have to give the decision within 3 months and Gram Sabha should also forward this decision to the MoEF, who will have to give the final decision on this issue within a period of 2 months keeping in mind the decision of Gram Sabha.
Problems in implication of the Act
Lack of Education
The basic problem in implication is the lack of education in people of tribal areas, even literate education is far beyond, for which we can say the whole problem in implication is not of the government there is some problem from the side of tribal peoples. “The literacy rate of scheduled tribes is 59.96% according to the 2011 Census while in 1961 it was 18. 53% in 1991 it was increased to 29.60% which if compared to do general literacy rate of 50.21 % in the country is very low according to 1991 census why the growth of literacy rate in the past three decades in the country were 28.2% per person and around the SC’s and ST’s, it was only 11.7%(the Hindustan Times, July 11, 1995) the major development problem of scheduled tribes is lack of literacy, the ignorance towards the education is the major reason for the exploitation of tribes by the government.” if government take any action in favour of tribal education and appoint teachers then at such situations there a communication gap because they don’t know any other language except their mother tongue tribal peoples lives in very remote places they are not aware of education according to the education is very luxurious things and they can’t afford it for their children they don’t have any faith in formal education. They think that children have to work in the field or at home and education is not important for them while education is the one way by which tribal peoples can make aware of their rights and because of their lack of education, it becomes very difficult for the implication of acts or laws.
Lack of Political Will?
The forest right act 2006 gives a very democratic right in the forest to the tribes on paper because the implication story is something different, it is a type of mix story where only a few get success while lots receive failure. “By the end of May 2015 the government had received 4.4 million claims but only 1.7 had resulted in titles. the officers of 9 states on July 2, 2015, convened to Delhi for a review-cum-consultation meeting led by the secretary of Tribal Affairs the states were Bihar, Jharkhand, Himachal Pradesh, Karnataka, Kerala, Odisha, Telangana, Uttar Pradesh, Uttarakhand and West Bengal right to protect, generate and conserve or manage forest resources are still lagging behind shows in the following graphs.”
The implication on ST’s is very slow and showing its displeasure on the same and the PMO have reported directly to the Ministry of Tribal Affairs for the implication of forest act in “campaign mode” by taking lots of efforts by Ministry of Tribal Affairs and Ministry of Environmental and Forest but the acts are still not implemented where there are still some loopholes in implementation because they all work in a very misguided way which shows that they work but actually they not and is still the overall implications are not for the only ministry size but also the other reason such as in a liquid community, conflicting legislation, lack of dedicated structure for the implications and devoted staff administration roadblocks to smooth processing to clean the government deficit.
Conclusions and Recommendations
The central concern of the whole paper is the improper implementation of the act and who is responsible for this- tribes or the ministries of the government? In my opinion, both are responsible because tribes don’t want to be involved with society and want to live in isolation. I respect their choice but this is depriving them of the development and innovations of the country and also Ministries are responsible because they know that tribes are not well aware of their rights, so why they keep on making new laws while they should put stress on the implementation of the pre-existing laws.
For the proper implementation of the acts government should take certain initiatives, in my opinion, such as legislation should make the laws in their regional languages which can help tribes to better understand what the law is, they have to create awareness about it and after making any act they have to continuously monitor the implications of that law, they also need to improve the records of recognizing country forest resources right and provide support to post Claim management and the last but not the least is allocation of financial resources and full-time staff at the sub-divisional and district levels.
- Census of India. (2011), Demographic Status of Schedule Tribes of Population of India. Retrieved from http://www.tribal.nic.in/WriteReadData/userfiles/file/Demographic.pdf.
- Government of India (1976). Report of National Commission on Agriculture, Ministry of Agriculture and Irrigation, New Delhi.
- Government of India (1982). Report of Committee on Forest and Tribal in India, Ministry of Home Affairs, New Delhi.
BY ASTHA KESHARWANI | INSTITUTE OF LAW, NIRMA UNIVERSITY