Needs Substantial Changes to Protect Tribal Interests

    The history of India is replete with oppression of the tribals by the ruling classes. Their rights snatched away and neglected by the Government they are forced into extreme difficulties. Without land titles they live a life of second-class citizens being continuously harassed by the forest department officials, the police and the civil administration. In the name of development tribals continue to be evicted from their lands, habitats and livelihoods. The environment threatening mining and rapid industrialization in the forest areas of Orissa has put the tribals of Orissa, Jharkhand, Chhatisgarh, Andhra Pradesh and other states in a precarious situation. The forest mafia-Government nexus continues to cut down forests creating acute livelihood crisis, forcing tribals in to hunger, malnutrition and migration. Instead of protecting the forest-based livelihoods the Government has been taking active steps to evict tribals in the name of conservation of forests and wild animals. Instead of attempting to address the fundamental life and livelihood problems of the tribals the interventions of religious organisations and the NGOs are further accentuating the exploitation of the tribals.

    Tribals have fought against injustice over centuries and have successfully defended their rights. The British entered tribal areas by adopting divide and rule policy by bringing middlemen into tribal areas. Illegal forest boundary setting followed. With the entry of moneylenders they begun dictating terms and controlled the tribal economy. Successive Governments (British and Indian) have inflicted several injustices on the tribals over the last 300 years. However, the NDA Government shocked the country when in 2002, based on Supreme Court’s rulings, issued directions to all State Governments to evict from the forests all tribals without valid land titles. Across the country some 2 lakh tribals have become victims of this direction of the NDA Government. Now the Congress led UPA Government has prepared the Draft Scheduled Tribes (Recognition of Forest Rights) Bill 2005 that it claims to recognise the rights of the tribals over forestlands.

    The purpose of this note is to articulate different aspects of the Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 that could become the basis of the response of revolutionary and democratic political forces of the country and also of that of all patriots and sympathizers of the tribal cause. This response has been prepared after having benefited from the intellectual inputs from a number of persons that includes Ex-MP Com. Madala Narayan Swamy and Com. Diwakar from Andhra Pradesh, Com. Pradeep Singh Thakur from West Bengal, Com. Gananath Patra, Prof. Birendra Nayak, Democratic & Civil Rights Activists Advocate Biswyapriya Kanungo and Sudhir Pattnaik, Com. Bhalachandra Sarangi, Researchers on Tribal Issues Kundan Kumar and Prof. N.C. Panigrahi, tribal leader Com. Santosh Mullick, organisers in the genuine tribal co-operative movement Judhistira Pradhan and Rama Kissan and several other activists including Nilamadhab Nayak, Natabar Sarangi and many others. Most of these persons came together in the ‘Consultations On Issues Affecting Life and Livelihoods Of Tribals of India’ Organised by Loka Pakhya at Bhubaneswar during September 30 to October 2, 2005.

• Why this Bill?

Based on the Supreme Court’s interim observation in the Godavarman case, the Ministry of Environment & Forests, GOI had issued a directive on May 3, 2002 to all State Governments to summarily evict ‘all illegal encroachment of forestlands’ before September 30, 2002. According to the Government all the tribals without valid land titles before 1980 had to be evicted. In Maharastra, Madhya Pradesh, Gujarat, Rajasthan and Assam some 2 lakh tribals have become victims of this direction of the NDA Government. Some accounts of eviction (after the May 3, 2002 directive) related incidents described below (source: Saxena, Kumar, others) will move any human being, but the State Governments and the Central Government are even prepared to ignore the minimum humanitarian considerations.

The homes of 15 Adivasis

families of Kundal village in Bali Tehsil of Pali District in Rajasthan were razed to the ground on August 16, 2004 by the Forest Department with the protection of 100 policemen and 7 Mahila Police led by the ACF and SDO. The land with standing crop of maize was destroyed with tractor and local cattle herders were asked to put their crops into the land. This action by the Forest Department was undertaken in spite of an appeal concerning the same lands in the Revenue Appellate Authority under 34A of Wild Life Protection Act. The Adivasis were cultivating the land prior to 1980 and were entitled for regularization but no Verification process had been carried out.

, tribal families are resisting eviction from 1,213 acres of land, which has been in their possession for over 7 decades. The problem dates back to the pre-independence era when Sonebhadra was an area, which was unsurveyed. Hence though the legal status of the land was shown as revenue land and the tribals' are recorded as owners, but the orders in the Godavarman Case have resulted in the forest department claiming the land as forestland.

were totally destroyed by the forest department at 10 p.m. on 23rd and 25th of September 2004. Standing crop of paddy, Nagli, Tuvar dal and chillies worth Rs 2,20,000/- was fully destroyed. The homes of 73 tribal families of Bhandarpaani in Betul District (Madhya Pradesh) were set on fire by the Forest Department on the night of 4 July 2004. People have been kept in different places and families separated – relatives and even members of the same families are unaware of each other’s whereabouts. Their only fault was that their village has been situated on forestland for generations.

, of Mendhakhapuri village of Khakanar Tehsil of Burahanpur in MP, were severely injured in a forest department firing during an eviction drive. Tribals of more than 35 villages have their houses burnt, livestock, crops destroyed and they are not allowed to cultivate their land. Local police stations have not registered any complaints. Most of the casualties have been in the villages of Chimnapur, Davali, Jhanjar, Bomiliaput, Jamunala and Hasan pura in Nepanagar Tehsil where Adivasi houses were burnt as part of the eviction drive. The monsoon rains worsened conditions of the Adivasis who along with their children have been rendered shelter less. On 1st July 2004, in Bomiliaput village of Nepanagar Tehsil in MP, 50 houses were burnt, utensils, beds, and household items taken away. Crops like soybean, paddy, maize, jowar, wheat and cottonseeds were burnt. 50 houses were burnt in Hasanpura.

. On 8th July 2004, in Jhanjar, 5 houses were burnt. On the same day, in yet another hamlet of Jhanjar, 22 houses were burnt. In June 2004, in Davali village, 50 houses were burnt. Mr. Ter Singh Patel, the village headman, aged 65, was severely beaten. His wife too was injured. Police refused to accept the FIR. In June 2000, in Haldiakheda village, all 50 houses and animals were burnt. The incident was repeated again in February 2004 wherein all house were burnt In Nov 2003, in Chidiapani village, 40 houses were burnt.

In most places, however, this decision of the NDA government met with widespread protest as a result of which evictions could be successfully stopped in many parts of the country. The NDA and particularly the BJP had become the subject of ridicule by the tribals. Atal Bihari Vajpayee, the then Prime Minister, tried desperately to do some damage control before the 2004 elections by declaring in a huge public rally in Madhya with reference to tribals of a particular area of the state that tribals shall not be evicted and forestlands cultivated by the tribals shall be handed over to them. On his return to Delhi when his staff told him that such a step cannot be taken in the prevailing legal framework the NDA Government promptly issued a guideline on February 5, 2004 to regularise forestlands in the name of tribals by extending the cutoff date to December 1993. However, the Supreme Court immediately stayed the operation of these guidelines and the tribals across the country continue to remain apprehensive of impending eviction by the Government.

The Ministry of Tribal Affairs is now of the opinion that tribals have been subject to historical injustices. In this context the Ministry of Tribal Affairs, according to the covering letter enclosing the draft Bill dated June 3, 2005 has stated that ‘The Ministry of Tribal Affairs was mandated to formulate a comprehensive legislation to redress this historical injustice done to tribal community and for clear assertion of their legal rights on land. A Technical Support Group (TSG), comprising the representatives of the Ministries concerned and some reputed experts having rich experience and deep association with the cause of environmental protection and welfare of tribal people, was accordingly constituted, under the chairpersonship of Secretary (Tribal Affairs) to formulate the Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Bill. Director General (Forests), Ministry of Environment & Forests was also one of the members of the group. After a series of meetings of the TSG, the Ministry of Tribal Affairs has formulated a draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005.’ The covering letter further goes on to say that, ‘ A note (hereinafter referred as the "justification note") containing the background of the case, the existing legislative/policy frame of the Ministry of Environment and Forests on the subject, the main features of the proposed Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, the checks and balances provided in the proposed Bill. is Annexed.’ In preparing this response to the Bill the "justification note" has also been referred wherever relevant.

The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005(hereinafter referred as the "Tribal Bill, 2005"), has already evoked mixed reactions from different sections of the population. The Ministry of Environment and Forests (MOEF) has, however lodged its opposition (based on the conservationists view) to the proposed Bill on the ground that granting rights over forestland to the tribals would adversely affect the forests and environment. Having a very good access to the corridors of power it is understood that the Conservationists’ views are being seriously considered. Most of the NGO sector has welcomed the Bill and is seen to be taking credit for drafting it. That top NGO leaders have good access to the UPA Government’s decision-making bodies (National Advisory Council headed by UPA Chairperson Sonia Gandhi being one of them) have only helped their cause. The position of major ruling political parties is not yet clear. Political forces that have been fighting for the cause of tribals over decades are demanding for major amendments.

In this regard it is important to understand that all the actions of the Government regarding forests is being guided by the Environment policy that was drafted in 2004 at the behest of the World Bank which puts animals at the center of policy making instead of putting man at the center. When the Government of India is pursuing globalisation (in the interest of MNCs) as the central theme of all its economic policies and programmes the proposed new law cannot be seen anything other than as an extension of the policy of globalisation. The purpose behind Government’s effort to conserve forests is to hand it over to the MNCs to exploit. Such a motive of the Government becomes clear when in Orissa where MNCs are lining up to establish mining and big industrial complexes in forest areas, the Orissa Government is planning to facilitate large scale transfers of tribal land to non-tribals (including MNCs) by amending the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 that presently prohibits transfer of tribal land to non-tribals and at a time when the Government of India is talking of granting forestland rights to tribals.

There is a need for a deeper understanding of the Tribal Bill 2005. Understanding has to be also developed on the Draft Environment Policy 2004 and other related laws and policies before finalizing the response on the Tribal Bill 2005.

• Critical Evaluation of the Bill: Section-Wise

1. On objective of the Bill

The Preamble of the Bill states the objective of the Bill as ‘to recognise and vest the forest rights and occupation in forestland in forest dwelling Scheduled Tribes who have been residing in such forests for generations but whose rights could not be recorded.’ The preamble of the Bill goes on to say that ‘ the forest rights on ancestral lands and their habitat were not adequately recognised 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 who are integral to the very survival and sustainability of the forest eco-system.’

There cannot be any objection to the above stated objective of the Bill. The Bill creates an impression that the Govt. is serious about vesting forestland rights to tribals and a procedure is being laid down for that. But going back on the history of implementation of Progressive Laws of the country it can be safely said that the Government has never been serious about such aspects. If the Government truly accepts that historical injustice has been done to the tribals then the least it can be expected of the Government is to devise a legislation that would not only grant all the rights that the tribals have been enjoying till the colonial masters or the Indian Government snatched away, but also try to compensate for the immense economical and social losses that the tribals have suffered all these years. But the proposed Bill is not for that. Now the question that arises is why then the Government is mentioning about historical injustice for justifying the Bill? Perhaps the government wants to believe that the proposed Law is the only thing that it can do compensate the historical injustice done to the tribals. This seems to be a case of pleading before the ruling classes on behalf of the tribals. The tribals do not want such pleading by the Government. Further those who understand how the Forest Administration of the country works they can appreciate that such a lofty objective (of the Bill) can only be achieved by total rewriting of the Indian Forest Act 1927. Historical injustice can be only undone by changing the very approach of forest protection and administration, which has been anti-tribal and anti-Forest. The Government has to accept that the Indian Forest Act 1927 has failed and so has the Forest administration. But the "justification note" makes it clear that the proposed new law would be in consonance to the Indian Forest Act 1927 and the repressive Forest (Conservation) Act, 1980. The following quotes (Point 2 vii and viii) from the "justification note" would suffice in this regard: ‘The proposed Bill does not preclude the operation of the Forest (Conservation) Act, 1980 … and does not interfere with the prohibitive clauses of the Indian Forest Act 1927, Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972.’

Since there are a number of other laws, policies & programmes, regulations etc. that govern tribal affairs and the proposed Tribal Bill 2005 would be one of them, unless the provisions that adversely affect the tribals are removed this new Law would not come to the help of the tribals. On the contrary this Bill may be considered as the part of the tradition of historical injustice meted out to the tribals over centuries.

• On Definitions [Section-2]:

1. Definition of Gram Sabha

The definition in the Bill seems to be different from what has been defined in the Panchayat Raj system and the relevant state acts according to which the Gram Sabha is the general body of all voters of a Gram Panchayat. In this Bill the Gram Sabha has been defined as the general body of all voters of a village. This confusion needs to be removed.

• Definition of Village

The definition of a village given in the Bill is quite exhaustive and includes forest villages, un-surveyed villages, or settlements whether notified as a village or not. This definition shall be helpful to the cause of the tribals residing in such type of villages, which were not recognised before.

• On Forest Rights [Section-3]:

3.3.1 Certain Rights Ignored:

In section 3 of the Bill is given what constitutes the Forest Rights of the Forest Dwelling Scheduled Tribes. Apart from forestland rights, the Government proposes to legalise several other customary rights. However, the Bill denies many forest rights, the important ones being, Community right over forests, Individual right over wood & timber and Hunting rights.

3.3.2 Forests Belong to the Tribals: Community Right over Forests Essential:

The Forests have been the habitat of the tribals since centuries because of cultural considerations and as a result of gross historical injustices meted out to them by the ruling classes. The Plain areas have become the habitats of the non-tribal population and they own bulk of the plain lands. In the same logic the tribals own the forests. The difference in the case of tribals is that they have not claimed ownership nor they have been able to register the forests in their name. Any progressive law aimed at doing justice to the tribals in the wake of accepted historical injustices has to recognise that the entire forest belongs to the tribals and other forest dwelling populations. Only a small portion of the forests could be considered as common property of the population as a whole, as is the case in the plain areas. By not including this as an explicit right and yet saying that the life and livelihood of the tribals depends upon forests is indicative of the Government Policy that seeks to make the tribals always dependent upon the Government and wants the tribals to be at the mercy of the bureaucracy and ruling classes.

3.3.3 Individual Right over Wood & Timber Essential:

Right over wood & timber is a usufruct right recognised as a part of the Government sponsored Joint Forest Management (JFM) practices that has been implemented across the country since long. It is strange that the proposed new law does not speak of it. Wood and timber are important forest produces and it is essential that the tribals get a share of it. Denying this right alienates the tribals from forests.

3.3.4 Hunting Rights Can’t be Denied:

Hunting rights have not been recognised as a forest right although such a right has been a customary right enjoyed by the tribals from time immemorial. In this matter the question that arises is that should the conservationists’ view that tribals are a danger to the wild animals be allowed to prevail? The society has to find ways and means of finding an appropriate solution to this issue. Such a solution can be found.

• On the Rights of Tribals in Non-scheduled Areas [Sub-section-4 (1)]:

The sub-section 4(1) of the Bill introduces a new terminology as regards tribals. According to the Bill the forest rights are to be enjoyed by the ‘forest dwelling Scheduled Tribes’. The Bill defines "forest dwelling Scheduled Tribes" as ‘ the members or community of scheduled tribes who primarily reside in and around forests and includes the Scheduled Tribe pastoralist communities and who depend on the forestlands for bonafide livelihood needs’. Such a definition is supposed to include all the Scheduled Tribes whether they are in Scheduled Areas or outside these areas. However, there is reason to believe that the Bill shall apply only to the Scheduled Areas and exclude tribals in areas outside the Scheduled Areas. The reasons for such an apprehension are:

1. The "justification note" prepared by the Ministry of Tribal Affairs at Point 9 under the heading ‘Checks and Balances’ says " (The Bill is to) recognise forest rights of only the forest dwelling Scheduled Tribes (FDSTs), where they are scheduled. The Bill will not cover the entire 8.2% of ST population. Only tribes scheduled for the area living in the forests will benefit. A tribal from an outside area/state will not benefit. The Bill in actual terms will only benefit the tribal population on ‘as is where is basis’. Only occupation as per the ground situation existing for generations are being given legal recognition so as to avoid day to day harassment by the officials." Thus the scheme prepared by the tribal Affairs Ministry does not include all tribals.
2. Sub-Section 4(7) of the Bill provides that ‘In case any forest right recognised and vested under sub-section 4(1) is disputed by any State Government or local authority, the competent Authority appointed by the Central Government shall consider the records prepared at the time of declaring the area as a Scheduled Area, and while notifying any tribe to be or deemed to be a Scheduled Tribe under article 342 of the Constitution, along with evidence and then pass an appropriate order in the matter. Provided that no order denying or refusing to grant any forest right shall be passed unless the aggrieved member or members of the community are give an opportunity of being heard. ‘

Thus there is enough reason to believe that the proposed Law is meant for tribals in Scheduled Areas and that too only for those who have occupied forestland that has not been regularized. What happens to tribals in non-scheduled areas? What happens to tribals in scheduled areas who have not occupied forestland yet or those who cannot prove that they have actually occupied?

• On Cutoff date for Vesting of Forest Rights [Sub-section-4 (2)]:

The Bill provides at Sub-section 4(2) that ‘ The recognition and vesting of forests rights … in respect of forest land and their habitat shall be subject to the condition that such Tribes or tribal communities had occupied forest land before 25^th day of October, 1980 or which other date as the central Government may, by notification in the Official Gazette, specify.’

According to this provision the Government may actually declare any date as the cutoff date, such as August 15, 1947, January 26, 1950, etc. This is arbitrary. It is to be noted that NDA Government had issued a guideline on February 5, 2004 that extended the cutoff date to December 1993. The Supreme Court has stayed the operation of these guidelines because it violated its interim observations according to which the MoEF had already issued directions to State Governments on May 3, 2002 to evict tribals without valid land titles by September 30, 2002. The date of October 25, 1980 has been considered as a possible cutoff date because that day the Forest (Conservation) Act, 1980 became a law. Now that the Government has come out with a fresh date i.e. December 1993 there seems to be merit in it as it is only 12 years back (well within the limit of living memory of most tribal peasants and their parents) and this will lead to easy settlement of the occupations by the tribals. Therefore, the cutoff date may be revised to December 1993 as was declared by the NDA Government or any other date that would be in the interest of the tribals.

• Legalizing Eviction! [Sub-Section-4 (4)]:

Sub-Section 4(4) provides that ‘ Save as otherwise provided, no member of a forest dwelling Scheduled Tribe shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is completed in such manner as may be prescribed.’

This provision means that after a procedure for verification as prescribed under the rules is completed the tribals can be evicted. This means that if it can be proved, by the procedure followed for the purpose, that a particular tribal family has not occupied forestland before the cutoff date then the said tribal family has to be evicted. Thus by making this law the eviction of tribals from forests gets the legal sanction, which perhaps was missing in previous forest and related laws.

This gives us every reason to believe that the first part of the proposed law i.e. granting forestland rights to tribals would not be implemented and instead implementation would be carried forward with force as regards the second part i.e. eviction of the tribals. The "justification note" at point 2(xii) reads: ‘ the proposed Bill does not preclude the Ministry of Environment & Forests from taking action against the ineligible encroachers of forestland. …. ’ Thus it can be said that no matter what might have been the real intention of those who have drafted the Bill, the reason for which the Government seems to be pursuing is that it would get legislative sanction to evict tribals, a step which it was unable to take so far and was creating problems for transferring land in tribal areas to non-tribals (including corporates).

• Tribals Subjected to Forced Land Ceiling [Sub-Section-4 (5) i]:

Sub-Section 4(5) i states that ‘ Where the forest rights recognised and vested under sub-section 4(1) are in respect of land, such land in no case exceed an area of two and half hectares per nuclear family of a forest dwelling Scheduled Tribe.’ This will lead to several situations, as has been elaborated below:

1. Tribal families having more than 2.5 hectares of forestland under occupation (say 5 hectare) shall have to forego claim on land (in this case 2.5 hectare) in excess of 2.5 hectares.
2. Tribal families having less than 2.5 hectares of forestland under occupation (say 1 hectare) shall have to remain satisfied with that amount of land (in this case 1 hectare).
3. Tribal families having nil forestland under occupation shall remain landless. Although this may seem to be a hypothetical situation, there may be a few cases.

This is a case of indirect land ceiling forced on the tribals when during the last 58 years land ceiling has not been implemented in the revenue lands. This is a case of differential land rights. When the Government is considering granting land rights to the tribals who have been deprived of it because of historical injustice how is it planning to continue the injustice by granting differential rights.

8. On Commercial Use of Forest Rights [Sub-Section-4 (6) i]:

Sub-section 4(6) Para (i) states that ‘ The forest rights recognised and vested under sub-section 4(1) in the forest dwelling Scheduled Tribe shall be exercised only for bonafide livelihood purposes and not for exclusive commercial purposes.’ This provision can be erroneously interpreted and cultivation of commercial crops (such as oilseeds, cotton, vegetables, etc.) and sale of forest produce in the market may be prevented by the officials. Such actions will have extremely adverse effect on the tribal livelihoods and shall go against the interest of the tribals. The definition of ‘commercial purpose’ should specify that commercial purposes do not include growing of commercial crops and selling agricultural produce and forest produce in the market place.

• Rights Are Subject to Responsibilities [Sub-Section-4 (6) ii]:

Section 4(6) Para (ii) states that ‘ the forest rights recognised and under sub-section 4(1) in the forest dwelling Scheduled Tribe shall include the responsibility of protection, conservation and regeneration of forests." Having said this, it is to be noted that the Bill does not provide for any authority of the tribals regarding forest protection. It is a classic case of responsibilities without authority, a typical style of functioning that is characteristic of the Government. This is a dangerous provision.

By using this provision tribals can be penalised and whatever rights conferred could be withdrawn. The question that arise in this regard is why this special provision in case of tribals? Whether the Government proposes to link fundamental rights of all citizens to fundamental duties? Let the Government do that and then the same may of considered for tribals. Forest rights for the tribals are nothing less than a fundamental right. Thus it cannot be linked to responsibilities.

• On refusal of Forest Rights [Sub-Section 4(7)]:

Sub-Section 4(7) provides that ‘In case any forest right recognised and vested under sub-section 4(1) is disputed by any State Government or local authority, the competent Authority appointed by the Central Government shall consider the records prepared at the time of declaring the area as a Scheduled Area, and while notifying any tribe to be or deemed to be a Scheduled Tribe under article 342 of the Constitution, along with evidence and then pass an appropriate order in the matter. Provided that no order denying or refusing to grant any forest right shall be passed unless the aggrieved member or members of the community are give an opportunity of being heard. ‘ This provision empowers the Government to refuse forest rights to some tribals in certain areas.

• Burden of Forest Management on Tribals [Section 5]:

Section 5 states that ‘ The holder of any forest right under this Act shall ensure that: (a) save as those activities that are permitted under such rights, no activity shall be carried out that adversely affects the wild life, forest and biodiversity in the area including clearing of forest land or trees which have grown naturally on that land for any non-forestry purposes including reafforestation, (b) catchment areas, water sources and other ecologically sensitive areas are adequately protected, (c) the habitat of forest dwelling Scheduled Tribes is preserved from any destructive practices affecting their cultural and natural heritage; (d) any activity that adversely affects the wild life, forest and the biodiversity is intimated to the Gram Sabha and to the forest authorities; (e) appropriate measures taken in the Gram Sabha to regulate access to community forest resource and stop any activity which adversely affects wild life, forest and biodiversity are complied with.’

If it is the duty of the holder of forest rights (in this case tribals) to ensure all that has been stated in section 5 (as stated above), then it is hard to understand as to what else is to be done by the Forest Departments of different state Governments. On the one hand the Government armed with the Indian Forest Act 1927, the Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972, several other laws and budgetary support have not been able to protect forests. On the other hand it is trying to shift the ensuring function of forest protection and other responsibilities to the tribals and that too without any authority. The Government has actually found a novel way through the proposed Bill. And through these legalities the Government shall strangulate the tribals and slowly will build up a case for handing over the forests to the corporate sector for protection and management (actually exploitation for profits). Further without rights over forests why the tribals should protect biodiversity and ecological sensitive areas. It is a case of corporate sector making profits out of Indian bio-diversity and eco-tourism and the tribals protect the forests on behalf of corporates.

The Bill does not provide for any concrete mechanism to ensure forest protection. Granting and vesting forest rights to the tribals would have to go along with effective measures for forest protection, because without the forests, forest rights would not mean much.

• On Authority of Gram Sabha [Section 6]:

Section 6 deals with the Authorities for vesting of forest rights. The sub-section 6(1) states that, ‘ The Gram Sabha shall be the authority to initiate any action for determining the extent of forest rights that may be given to the forests dwelling Scheduled tribes within the local limits of its jurisdiction under this Act.’ Sub-section 6(3) states that, ‘ A Sub-Divisional Committee hall examine the decision taken by the Gram Sabha.’ The Sub-section 6(7) states that, ‘ There shall be constituted a District level Committee with such composition and functions as may be prescribed to consider the record of forest rights prepared by the Sub-divisional Committee for its final approval.’ All these provisions read together clearly states that Gram Sabha has very little power in recognizing and vesting of forest rights in the tribals. Making the District Committee, as the final authority shall in reality put the decision-making powers with the bureaucrats, a situation that is against the interests of the tribals. The Gram Sabha is the best judge of the claims of different tribal families on forestland as the members of the Gram Sabha reside in the villages and know about the land status of all families in the village. Besides, how can the general body of all voters of a village be sub-ordinate to the officials or a few persons at the sub-divisional or district level? By providing for multiple authorities the tribals shall be subject to a number of litigations before getting their rights and it is feared that in some cases litigations may go on for several years together.

If the sub-divisional level committee and the district committee have certain things to state they can place all the relevant information and analysis in front of the Gram Sabha once the Gram Sabha has prepared the draft record of rights. However, the Gram Sabha should have the final say in recognizing and vesting of forest rights. If still some have grievances they should be free to approach the courts.

• Offensive Law [Section 8]:

The section 8 of the Bill states: ‘ If any holder of any forest right conferred (i) contravenes or abets the contravention any of the provisions of this Act; or (ii) commits a breach of any of the conditions of the forest right vested or recognised under this Act; or (iii) engages in unsustainable use of forest or forest produce ;or (iv) destroys wild life, forests or any other aspect of biodiversity; or (v) fells trees for any commercial purposes, shall be guilty of an offense against this Act and be punished with a fine which may extend to one thousand rupees and in case of offence is committed more than once, the forest right of the person who has committed the offence shall be de-recognised for such period as the District Level committee, on the recommendation of the Gram Sabha may decide.’ Using this provision the forest rights of many tribals may be de-recognised. Then such people would loose their major source of livelihood and the situation would be worse than the present condition of the tribals. After all the very purpose of the Bill is to grant forest rights and grant them rights over forestlands so that the tribals can develop their livelihood based on such land. After having granted such rights the providing for taking back those rights is indirectly saying that such people do not have a right to life. The system of punishment cannot take away the right to life, unless the Government wants to use capital punishment for such an offense. This provision exposes the real character of the Government. It is therefore, necessary that the law of the land should be the basis of any punishment and offenses under this Act cannot be treated differently.

• Offenses: Why Leniency Towards Authorities? [Section-9 and Section-12]:

Section-9 states that, ‘ Where any authority or offices or member of such authority contravenes any provisions of this Act or any rule made there under shall be deemed to be guilty of an offence under this Act and shall be liable to be proceeded against and punished with imprisonment which may extend to thirty days or with fine which may extend to five thousand rupees, or with both. Provided that nothing contained in this sub-section shall render any member of the authority or head of the department or any person referred to in this section liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.’ Sub-Section-12 (1) States that, ‘ No suit, prosecution or other legal proceeding shall lie against any officer or other employee of the Central Government or the State Government for anything which is in good faith done or intended to be done under this Act’. Sub-Section-12 (2) States that, ‘ No suit or other legal proceeding shall lie against the Central Government or the State Government or any of its officers or other employees for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.’ Sub-Section-12 (3) States that, ‘ No suit or other legal proceeding shall lie against the Authority as referred to in Chapter IV including its chairpersons, members, member secretary, officers and other employees for anything which is in good faith done or intended to be done under this Act.’

This is a case of lenient behaviour towards the authorities, the State & Central Governments and strong action against tribals. This leniency becomes stark when one compares with the punishment proposed for the tribals. While the punishment for tribals can go up to the extent of taking away their source of livelihood that for the authorities is just a fine up to five thousand rupees and 6 months imprisonment and that too the same can also be waived off in certain cases. This is extremely unfair. Since this is matter of livelihood of the tribals and the Government has admitted that tribals have been subjected to historical injustice, unless offending authorities are punished strongly it would be difficult to realise the objectives of the Act. Thus there is a need to increase the level of punishment for the authorities, provide for punishment for the State and central Governments and their officers & employees and there shall not be any provision that can waive off punishment. The Courts should decide whether they should be punished or not.

• Why Permission Is Required for Going to Courts? [Section 10]:

Section-10 states that, ‘ No court shall take cognizance of any offence under section-9 of this Act unless any forest dwelling Scheduled Tribe in case of dispute relating to a resolution of a Gram Sabha or the Gram Sabha through a resolution against any higher authority gives a notice of not less than sixty days to the State Monitoring Committee and the State Monitoring Committee has not proceeded against such authority.’ Thus in this case the State Monitoring Committee is expected to play the role of a Forest Rights Tribunal. This is not desirable in the interest of the tribals who are to get the rights denied to them over centuries. In the interest of the tribals there should be no provision that requires complainants to take the permission of the Government to go to courts.

• Section-15 Has the Potential to Deny Rights Under This Act:

Section-15 states that, ‘ Save as otherwise provided in this Act, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other Law for the time being in force.’ The suspicion about the real objectives of the Bill, as indicated at point 2.1 above has come true. All existing laws have denied forest rights to the tribals. By providing that the proposed new law shall not be in derogation of any other law that is in force for the time being, the tribals shall be denied the forest rights that are supposed to be given under the proposed new law. Section-15 has to be modified if the Government’s intention is actually to give forest rights to the tribals. The modification should be such that nothing in any existing law shall hinder the recognition and vesting of forest rights under the new law.

• Assessment of the Bill and the Process of Enactment:

4.1.  Late Recognition of Rights of Tribals:

Without land titles in their name, the forest dwellers (mostly tribals) are subjected to continuous harassment. The forest department officials demand heavy bribes so as to allow the forest dwellers to continue to cultivate. On the one hand the forest officials have been making fast money by exploiting the plight of tribals & other forest dwellers and on the other hand they are threatening to evict forest dwellers from forest areas by citing the May 3, 2002 MoEF order. In many places tribals have been demanding land titles for several years. The Government is aware of this, but has never shown interest to carryout the legal formalities as per law to provide valid land titles in their name.

The situation in the forest areas is that forests are getting depleted and cases are pilling against forest dwellers.

Tribals and forest are interlinked. Many tribals have been forced to cultivate the forestlands as other communities forced them out of the plain lands, developed by them over generations. Tribals are agriculturists and they were entitled to rights over their cultivated land. It has been a long-standing demand to regularise the land rights in the name of tribals but their rights were not recognised during survey and settlement by the Government. Thus tribals are not encroachers.

The "justification note" attached to the Bill states that, ‘The rights of forest dwelling Scheduled tribes who are inhabiting the forests for generations and are in occupation of forestland have not been adequately recognised so far resulting in historical injustice to these forest dwelling Scheduled Tribes … .’ The note goes on to say that, ‘They (The Tribals) are integral to the very survival and sustainability of the forest eco-system, including wild life, and cannot survive in isolation.’ Thus the main tribal issue, according to the Ministry of Tribal Affairs, as has been brought out in the above paragraph, is that of granting forestland rights to the forest dwelling tribals. Such thinking on the part of Ministry of Tribal Affairs, if it were real, would help the forest dwelling tribals immensely. Thus it is case of late recognition of the rights of tribals.

• What About Rights of Non-tribal Forest Dwellers?:

A clear omission in the Bill is about the rights of the non-tribal forest dwellers. This will cerate dissentions and shall make the process of recognizing and vesting forest rights in the forest dwelling tribals very difficult. In fact the tribals themselves apprehend that this may lead to serious law and order problem in all those tribal areas where there is sizeable population of non-tribal forest dwellers. In areas where non-tribal forest dwellers constitute the majority the tribals may not be able to get any forest right in their name. The tribals have opined that it is a classic case of divide and rule, the infamous policy adopted by the British to rule India. Thus such a law is not considered feasible and the tribals do not want that their poor brethrens who have been residing alongside them loose their rights. Thus in the interest of tribals and also the non-tribal forest dwellers the forest dependent non-tribal poor should also be eligible for getting forest rights. The draft Bill should be appropriately modified. In fact it is understood that the original draft of the Bill included all forest dwellers but later on due to the objection of the MoEF the Bill was restricted to only forest dwelling tribals.

• Ministry of Environment and Forests Opposes the Bill !:

It is understood that the Ministry of Environment and Forests (MOEF) has lodged its opposition to the proposed Bill on the ground that granting rights over forest land is under the jurisdiction of the Forest Department and that such a step would adversely affect the forests and environment. In Orissa some bureaucrats have opposed the Bill saying that it would lead to destruction of the forests. It is being said that the opposition to the Bill by the MOEF is because it represents the conservationists. Various issues raised by the MoEF justifying their objection to the Bill are as follows:

1. By giving authority to the Gram Sabha the local vested interests shall takeover.
2. Distribution of 2.5 hectare of forestland is against 1988 National Forest Policy of maintaining forest cover in 1/3^rd of the geographical area of India. This will lead to an ecological disaster.
3. By this 74% of the Indian forests (present coverage is 68 million hectare) shall be handed over to 8.2% of the population (No. of tribal families is supposed to be 20 million).
4. In this way by 2013 forest cover would be only 26% of the existing coverage and wild life shall be completely wiped out.

4.3.1 People Would Have to Have Faith in Gram Sabha:

The MoEF’s concern that by giving authority to the Gram Sabha the local vested interests shall takeover requires a proper understanding. In reality the system of Gram Sabha has not been working well and the local ruling class politicians ably assisted by their agents take control of most of the Gram Sabha and its decision-making and the decisions thus made are far from being pro-people. But there is nothing to be surprised about this. The Gram Sabha at the village/Gram Panchayat level is a miniscule picture of the prevailing political system of India. The bureaucrats in MoEF who really decide the policy and the ministers tow them are making a fool of themselves by trying to protect the people from the politicians and touts at the village level knowing fully well that the Indian people are subjected to suffering in the hands of ruling class politicians on a daily basis. This brings us to a conclusion that if it would have been possible the bureaucrats would suggest that India should by governed by an external political force and not by the Indian politicians. They actually know that presently India is run by global powers and not by the Indian politicians. They know that the National and state level politicians tow the dictates of the global powers and doubt that whether the village level leaders would do that or not and therefore are raising their voice against the Gram Sabha. It is to be noted that in many Gram Panchayats the Gram Sabhas have taken bold decisions that have gone against the decision of the State and central Governments. The instances of forceful holding of Gram Sabhas in the presence of the District Collectors, armed police and hired people (to satisfy the quorum) proves that the concept of Gram Sabha has begun to work. It has been the experience that wherever revolutionary political forces have strength the Gram Sabha and the Gram Panchayat system is not in a position to take anti-people stand on important matters. Thus knowing fully well its limitations, the Gram Sabha should be declared as the final authority incase of granting forestland rights to the forest dwellers. Poor people would have to have faith in the Gram Sabha as they can participate in decision-making.

4.3.2 Tribals-Forest Interdependence is Hope for the Future:

Today a cursory glance of the Orissa forest map superimposed with the map of tribal population concentrations shows that all 95% of forests of Orissa are located in the tribal areas. This proves that tribals are not a threat to forests. This has been accepted by the Ministry of Tribal Affairs in the central Government as the Justification note says ‘the tribals people are inseparable from the eco-system including wildlife and cannot survive in isolation.’ Therefore, the Ministry of Tribal Affairs goes on to say that it is safe to assume that, ‘forest dwelling Scheduled Tribes are integral to the very survival and sustainability of the forest eco-system.’

Large-scale deforestation that has taken place, and which is apparently the cause of concern by the MoEF, is the handiwork of the forest mafia-Government nexus and not the tribals. Faced with acute livelihood crisis some tribals co-operate with the forest mafia for earning a little in the form of wages. The Government policy of urbanization, massive railroad expansion and industrialization is responsible for cutting down of forests. In fact because of this the tribals have been forced in to a situation of hunger, malnutrition and migration. This situation has further aggravated because the Government has so far not accepted the forest-based livelihoods as a sustainable livelihood and has done nothing in this regard. The Government continues to propagate commercial agriculture, commercial plantations, etc. through its ITDA programmes that leads to cutting of forests. Growth of area under cotton in south Orissa (which the Government is claiming to be a major success) by cutting forests is a glaring example of erroneous Government policies.

A pertinent question is why the attention of the MoEF is not on the mines, which destroy large tracts of forests and pollutes the environment? In Orissa since 1980 only 29 hectares of forestlands have been regularised in the name of tribals whereas 1224 hectares of forestlands has been regularised in the name of mining and other companies. The Government is seen to be on the side of the mine owners and big industrialists and not with the poor tribals.

Thus the concern of the MoEF that regularization of forestlands in the name of tribals shall lead to loss of forest cover is not borne by logic nor facts. By restoring the rights of tribals and developing a vibrant forest based livelihood system shall be the surest way to preserve forest and wild life. The MoEF must therefore change its mindset or else there would be very little use of the new law. The Government’s perspective on tribals and forests has to undergo a total shift if justice is sought to be done to the tribals and if the intention is to maintain appropriate levels of forest cover.

• Progressive Laws Are Not for Implementation:

In the past 58 years the Government has not implemented wholeheartedly any progressive law. The case of land reforms Act in Orissa proves the point. The chronology of events is as follows:

• 1948: Under the chairmanship of Nabakrushna Chaudhray a committee was formed for land reforms
• 1960: The OLR Act was passed by the Orissa Assembly
• 1961: The OLR Act was notified and before implementation could start it was subjected to amendment.
• 1972: Implementation started. The Tahsildars were asked to go slow.
• 1976: To a question by the Planning Commission as to the slow speed of land reforms in Orissa the Orissa Government replied that the social forces in Orissa are not in control of the Government and action as per OLR would disturb the social situation and even may lead to sever law and order problems. (Prof. R.S Rao)
• The OLR cases have been so treated that most cases the farmers lost the case and the landlords own
• Yet the farmers lost many cases because they could not bribe the officials.
• Knowledgeable persons are seen to be questioning the existence of the OLR Act.

Such has been the experience in almost all states, with some exceptions as regards the degree of implementation. However, the Government has always been using this law for its propaganda that it is interested in giving land to the landless and in fact has given to a large number of people. In this regard it is pertinent to note that in a reply to a recent Parliament Question, Sharad Pawar, the Minister for Agriculture, GoI, has admitted in the Parliament that the total land distributed to landless since 1947 is just around 2% of the total land available for re-distribution. Now one can understand about the fate of a progressive law like Land Reforms Act.

The Case of yet another legal provision that restricts transfer of tribal land to non-tribals will further make the situation clear. The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956, was formulated under Schedule V of the Indian Constitution for banning all transfer of land from scheduled tribes in scheduled areas to non-tribals, unless prior permission was obtained from the competent authority. However, over the years, large areas of land owned by STs were being transferred to non-STs in spite of the law. The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956, was amended in 1989, to include a provision that the land of a Schedule tribe in Scheduled areas can't be transferred to a non-tribal if the person concerned has less than 2 acres of irrigated or 5 acres of un-irrigated land. In 2002, another amendment has completely forbidden the transfer of tribal land, whether through sale or lease or mortgage.

This law legally affects the operation of land acquisition in Schedule V areas of Orissa. If the section 3(iii) which lays down the minimum land to be owned by a tribal before transferring land is 2 acres irrigated or 5 acres un-irrigated is read purposively along with Schedule V protection, land acquisition which leaves the tribal landless or less than the stipulated amount of land violates this clause of OSATIP regulations, 1956. The Government of Orissa seems to have clearly understood the threat posed by these two provisions of OSATIP Regulations and the possibility that it may be challenged legally. It also understands that these may pose major obstacles for the industrialization and mining in Scheduled Areas. One of the key arguments in the case filed against Vedanta's project in Lanjigarh is regarding this provision of minimum landownership under OSATIP regulation, 1956. In the Vedanta case, large number of ST has been made landless through land acquisition. The same is the situation in almost all-corporate linked land acquisition in schedule V areas.

It is for the above reasons that OSATIP Regulations, 1956 is sought to be amended by the GoO, and a committee headed by Balabhadra Majhi has been set up. This committee was set up after the tribal MLAs were made to create pressure on the Government that the section 3(iii), stipulating minimum landholding before sale is allowed, should be changed so that tribals can sell their lands, and that the inability to sell their land is affecting tribals in getting loans from Banks and financial institutions. The reason behind this stance from the tribal MLAs becomes clear when it is linked with further amendments in OSATIP Regulations, 1956 proposed by the Revenue Department. The Revenue Department has suggested that the act be amended to allow tribals to "donate land for developmental purposes in interest of general public after maintaining minimum reserve ratio. They can also lease out land to Public financial institutions/public undertaking/corporation for purposes of business or any other developmental purposes". This makes it clear that the Government has understood the legal threats the regulation poses to its land acquisition spree in the Scheduled areas, and wants to change it accordingly. Such an amendment will remove all protection for tribal land alienation, as any non-tribal could float such a company and bribe the local administration to "arrange" a donation by the tribals.

Almost all land acquisition by the GOO in Scheduled Areas after 2002 has violated the OSATIP Regulation, 1956, and therefore, is open to legal challenge. Therefore the Government wants to change the law itself. The Corporates who are involved in these land acquisition are also in a legal soup as almost all of them have violated OSATIP Regulations, 1956, by illegally encroaching on lands belonging to STs. A similar regulation referred as 1of 70 exists in Andhra Pradesh. This 1/70 regulation is further strict and totally prohibits any transfer of land from Scheduled Areas to non-tribals (that includes the Government as per the Supreme Court’s Samata verdict). But there may be some efforts on the part of the Andhra Pradesh Government to dilute this regulation.

The effort to dilute the regulations made under Schedule V of the constitution should be vehemently opposed and the Government has to be exposed. In addition the political forces and all democratic forces that are fighting for the tribals should demand for implementation of Andhra Pradesh type regulation in all tribal areas of the country.

1. Importance of Legal Rights and Validity of Forestland Rights:

There is an impression that the proposal to grant legal rights over forestlands is not very important for the tribals. This impression is based on the current state of affairs in most tribal areas, where the tribals are cultivating forestlands and have access to different forest produces. These people think that nothing less than complete change of the system shall be helpful to the tribals. But it is important to understand that without legal rights over forestlands they do not get recognition as a resident of the area and do not have access to the Government benefits that reaches the tribal villages, such as housing support, relief & rehabilitation during natural calamities and bank loans. Further without legal rights over the forestlands the Forest department officials, police, revenue administration continuously subject the tribals to harassment, ruling party politicians, etc. Thus getting legal rights over the forestlands is very important for the tribals, as it would help the tribal family in providing some amount of security of their livelihood.

However, the question that arises from the proposed Tribal Bill 2005 is that will the legal right the Government proposes to grant the tribal help access Government benefits? Will the forestland right be a legal right in the same way as the title of revenue land? The doubts in this regard should be clarified and the forestland right should have the same legal importance as the title of revenue land.

• Law Making in The Interest of the Corporates:

With the adoption of New Economic Policy the Government is consciously promoting the interest of the corporate sector including that of the MNCs. The Government has become the chief facilitator for the corporate sector and the most important service that the Government provides for the expansion of capitalism is to acquire large tracts of land for setting up of huge infrastructure and industries. In doing so all the state Governments have been using the Land Acquisition Acts and have unleashed a land acquisition spree that covers forests, mountains, coastal plains, water bodies, eco-sensitive areas, habitats of millions of poor people, prime agricultural lands, etc. The Government is not bothered if such acquisition takes away the land, habitat and livelihood of millions of poor. The Central Government ably supported by all state Governments (including the so-called left front Governments of West Bengal and Kerala) are marching ahead in the single pursuit of establishing huge infrastructure, mines and industries by displacing millions of poor people across the country. The tribals in the state of Orissa have been facing the brunt for over 50 years now. The table below gives a picture of land acquired and tribal families affected by different major projects:

Land Acquisition for Some Major Irrigation

And Industrial Projects in Scheduled Areas of Orissa:

1/ Area Acquired in Hectare, 2/ No. of House Holds (HHs) Affected, 3/ ST HHs affected, 4/ ST HHs Affected in % of total HHs, 5/ NA: Not Available.

The data about land acquired, villages affected and the number of people displaced or affected by various development projects in Orissa hasn’t been compiled properly till date. The data as provided below which doesn’t include people affected by minor irrigation projects, infrastructure projects such as roads etc, may be taken as a conservative estimate.

Land Acquisition for Different Projects:

1/ Area acquired or affected (ha.), 2/ No of villages affected

It is estimated that more than 1.5 million people were displaced by development projects between 1951 and 1995 in Orissa. Of this 42% were tribals. As per yet another estimate, around 25% of the displaced tribals were never resettled even partially.

The conditions of tribals must be similar in other states. With privatisation of water resources of India that has started with the infamous Pani Panchayat programme across the country, the sale of rivers such as Sheonath and taking over of urban drinking water projects in Delhi, Jamsedpur, Tirupur, etc. the major irrigation projects shall pass into the hands of the large MNCs such a Vivendi of France and Beetchel of USA. The Government of Orissa is in the process of channelising investments to the tune of Rs. 250000 Crores in mining, power, water, industry and other infrastructure in the next five years. Several thousands of hectares of land, most of which will be from the Scheduled Areas and other tribal areas would have to be acquired for this. All new land acquisitions shall be for the corporate sector and the chief beneficiary of the earlier land acquisitions are also the corporates. It is also to be noted that the MNCs are eyeing on the forest resources and particularly on the rich bio-diversity of Indian forests as a source of raw materials/resources for the emerging big business of Genetic Engineering, Eco-tourism, Eco-entertainment, etc.

In order that the Government’s land acquisition spree is not derailed the Government is engaged in activities such as amending the stringent provisions of different state laws/regulations (as is being done in the case of regulation 2/56 in Orissa) that prohibit transfer of tribal land to non-tribals, launching the Land bank programme, etc. . Thus the question that arises in connection to the proposed Tribal Bill 2005 is that whether it is also being pursued to ensure corporate control over forest and other natural resources of the country?

In many parts of the country revolutionary political forces have been leading massive movements against tribal land alienation and all such forces have their revolutionary land programmes. Massive movements are gaining ground in many parts of the country, where revolutionary forces, democratic forces and patriots of different types are joining hands to foil the move to evict tribals and the poor from their land and livelihoods. It seems the Government’s strategy is that before this fire catches on it would put cold water on it. Perhaps the Government has decided to give some rights to the tribals before taking away large tracts of land and forests out of their control and therefore, has drafted this new Law. Give up to 2.5 hectares, cerate a favourable environment and then give away large tracts of forest and revenue lands in the tribal areas to the MNCs. There is every reason to believe that the Government with the ulterior motive of scuttling the peoples’ movements that are gaining ground is pursuing the proposed new Law. It is the duty of the Government to clear this air of doubt about its intentions by putting a stop to all land acquisitions in the tribal areas, publish a white paper on all land acquisitions made so far in the tribal areas and the implementation of schedule V provisions and related laws/regulations. Only after a thorough public debate of the white paper and after plugging the holes in the regulations/laws relating to the tribals and forests land acquisition for different projects may be considered. Only after fulfilling this condition the proposed new law shall be welcome.

• Legislation to Provide Working Space to Government:

In view of what has been said so far a feeling id gaining ground that the sole purpose of the proposed Law is to give the Government the much needed flexibility in discharging the role of a so-called democratic Government which is presently not possible because of the rigidities of the 1980 Forest (Conservation) Act. In other words the proposed law is to provide working space so that it can confer forestland rights once in a while and keep fooling the majority of the tribals as has been the practice with regard to the Land reforms Acts. It was on the strength of the 1980 Forest (Conservation) Act the Supreme Court has stayed the MOEF guidelines issued on February 5, 2004 to extend the cutoff date for regularizing forest encroachments to December 1993. Thus the purpose of the new law is for its own working and shall have very little significance as regards addressing the historical injustice meted to the tribals. The new law shall, however, cerate a lot of illusion in the minds of the unsuspecting & simple tribals and some intellectuals, who seem to have a lot of faith in the so-called democratic governance structure of India. The new law shall be used to cheat the tribals. But only granting rights over forestlands may lead to loss of rights over revenue lands, which the tribals have been cultivating/using. This is a serious question.

In reality tribals will run behind the officials and the ruling politicians for years together and only a miniscule percentage of them may be lucky to get their forestland and other rights. The new law shall, however, be well publicized by the Government and their agents in the form of NGOs. It will be repeat of what was seen after the 73^rd amendment and the PESA laws. New opportunities shall emerge for NGOs to enhance their involvement in tribal areas and the tribals may not benefit anything from the new law in the present form.

• Apprehensions Regarding Forestlands to be Regularised Under New Law:

The total forestland in Orissa that is pending regularization before 1980 is 4429 Hectare. This is what the Government of Orissa has placed before the MoEF in 2000 for regularization. The GoO, however, accepts an encroachment of 47, 300 hectares as per the recommendation of the Central Empowered Committee (CEC) of the Supreme Court (SC) filed in the SC after their hearing on July 25, 2002. It is further understood from the said CEC recommendation (as referred above) that the MoEF’s estimate of total forestland encroachment is 12.5 lakh Hectare, the details of a portion of which are as follows:

Estimate of Forestland Under Encroachment as per MoEF (July 2002):

From the above data it becomes clear that the total forestland that can be regularised in Orissa by the Forest department is 47, 300 hectares. The forest enquiry committee set up by the Govt. of Orissa in 1959 had reported the total land under only shifting cultivation to be 30, 720 sq. km. or 30.72 lakh hectares and according to the spirit of the law this amount should have been settled in the name of tribals, which successive Government have not done. Why should the tribals of Orissa accept such a new law that will only regularise 47, 300 hectares as against their due of 30.72 lakh hectares? The MoEF in its objection to the enactment of the New Law has stated that distribution of 2.5 hectare of forestland is against 1988 National Forest Policy and by this 74% of the Indian forests (present coverage is 68 million hectare) shall be handed over to tribals who account for just around 8.2% of the population. Thus as per the MoEF estimate the total forestland that is supposed to be handed over to the tribals would be around 50 million hectares. Why should the tribals of India accept such a new law that will only regularise 1.25 million hectares of forestland as against their due of 50 million hectares?

Unless anomalies to the estimates of actual encroachment according to the MoEF are clarified and the tribals are assured of their rightful ownership of forestlands (either individually or on community basis) there is no reason why the tribals of India would accept this new Law.

• Undoing Historical Injustice Is Not Possible in the Current System:

If the intention of the Government were to undo the historical injustice done to the tribals the factors that were responsible for injustice over centuries would have to be understood and accepted. After having done that historical injustice can be undone only by a combination of the following three moves:

1. Restore the rights which were denied so far
2. Compensate the socio-economic losses incurred due to the injustice done
3. Remove the factors responsible for injustice

4.9.1 Restoring the Rights:

The tribals were living in forests for centuries together. Yet some tribals had cleared forests to make cultivable land had settled around such cultivable lands. But these tribals had to flee back to the forests because of the invasion of other communities who took over their cultivable lands by force or by deceit. Thus the tribals both by culture and because of torture by the ruling classes had adopted the forests as their habitat, source of livelihood and culture. By intruding into the forests, cutting down trees and hunting animals rampantly, declaring forests as Government territory the non-tribal population and their Government have snatched away from the tribals many of their customary and traditional rights. The tribals had the right to unchecked entry into all deepest of forests to collect different forest produces, hunt animals and enjoy the deep woods; but this right was taken away by declaring certain forests as reserved forests, sanctuaries, national parks, etc. The tribals had developed and mastered the art of shifting cultivation; but this right was taken away from them by making shifting cultivation illegal. The tribals had developed the valley bottom lands and the hilly lands into productive agricultural lands and were developing a typical variety of settled agriculture, but this right was taken away from them when the Government (British or Indian) declared that as forests. The tribals had the unchecked access to all water sources (streams, springs, rivers, etc.); but this right is being taken away from them with indiscriminate mining, industrialization and privatisation of water resources. The tribals had the right to sale the forest produce and buy their requirements; but this right has been put into question because of several restrictions in collection and marketing of forest produce. All these rights and many more have to be restored to the tribals to undo the historical injustice done to them. Is the Tribal Bill 2005 meant for restoring all these rights? Actually it is not so. The aim is to actually only give some partial right to a limited extent of forestlands which they can prove as under their occupation as on the cutoff date to be decided by the Government.

4.9.2 Compensating the Losses:

Because of the taking away of all the rights as discussed above the tribals have suffered immensely. By using modern economic tools their suffering can be valuated. Will the Government compensate this loss? Can it compensate? The ruling class politicians and the bureaucracy will promptly answer that there is no way to compensate losses incurred in the past. But why not? Can we not, henceforth, factor the value of losses incurred by the tribals in all future monetary gains of non-tribals those who were responsible for the tribals’ losses? If it is possible can we not collect these amounts and pay back to the tribals? Or can we not give to the tribals some resources more than their genuine due? The answer to all these questions can be yes, provided the Government has a political will. The least that the Government and the ruling class can do is to handover the entire forests to the tribals. Actually forest should according to natural law belong to the tribals. By restoring this right we will be not only undoing the historical injustice but we would have compensated the losses to a great extent. Never in the last 58 years, the Government has tried to compensate the injustices done to the poor and the deprived. It has only put the poor in a situation of constant ridicule by the ruling classes and has tried to make them dependent upon the largesse given by the Government. Relative poverty ahs increased and their power in the society has sharply declined.

4.9.3 Removing Factors Responsible for Injustice:

What were the factors responsible for doing injustice to the tribals? This question has to be answered. If the same factors responsible for taking away the tribal rights exist in the society and the Government then whatever right the Government will grant through this new law shall be soon taken away again. Some of the important factors responsible for snatching away of tribal rights are indicated below:

1. The greed of the ruling classes is responsible for the desire to acquire property and exploit all possible resources for amassing wealth.
2. The indifference of the Government to the machinations of the ruling class politicians and others and active collaboration in such activities with the aim of snatching the property and resources of the masses.
3. Development of a culture that justifies the loot of property and resources of the masses by a few.
4. The perpetual weakness of the masses in understanding the machinations of the ruling class politicians and others, understanding the style of functioning of the Government, confronting the predominant culture propagated by the ruling class and protecting themselves from the clutches of the ruling classes.
5. Lack of appropriate social mobilization of the masses to confront the exploiters and propagate a peoples’ culture.

The current period in India’s history is witness to limitless greed of the ruling classes. Theories are being propagated that there cannot be limit to human needs and humans need not bind themselves within limits. This is getting reflected in unusual growth in business and profits. But still the corporate sector is not satisfied. They are scheming day in and day out for yet greater expansion of their business. Trade is touching all conceivable areas. The society is seeing trade in seas, mountains, microorganisms, water, air, cosmos, knowledge, care & emotions. Everything is tradable and through trade humans can improve their quality of life. The whole world is being sharply divided into those who can afford all the goods and services available in the market place and those who cannot. Without removing such greedy people from the scene the poor of the world cannot think of being safe and the Indian tribals definitely cannot expect their rights to remain intact after passage of the proposed new law.

The Indian Government and the state Governments have been always indifferent to the machinations of the rich people and ruling class politicians and have often played an active role of collaborating in such activities of the rich people and ruling class politicians. The Government instead of protecting the interest of the masses and the poor in particular has always protected the interest of the rich and the ruling classes. Today’s Indian Government and the state Government have actually become worse. In the era of new economic policy when the controls put on the exploitative practices of the rich and ruling classes are being liberalized, public services are increasingly being privatized and the Indian productive forces are being increasingly exposed to global competition without the advantage that is enjoyed by the global players, the Government is entirely on the side of the rich and ruling classes. In no way one can expect any good treatment from the current government. In fact whatever is being given to the poor and in this case tribals has to be seen as a small fish to catch a big fish in the days to come.

4.9.4 Justice can be Done Only by Changing the System:

It is not possible in the current system to undo the historical injustice done to tribals because neither the Government and the ruling classes are prepared to restore all the rights that were denied to tribals, nor they are prepared to compensate the losses incurred by the tribals, nor there is any move to remove the factors responsible for historical injustices done to tribals. Historical Injustice can be undone only by a complete change of the System. The tribals desirous of undoing the historical injustice done to them have to wait till then but have to start preparing for a complete change of the prevailing system.

1. The Fight is Political

In J & K 4 lakh acres of land was acquired by the Government and all 4 lakh acres were distributed. This could happen because the Supreme Court and the Parliament could not interfere in such a decision and the political leadership in J&K at that time had the political will to do so. In all other states similar will is necessary. Without it all progressive laws would prove futile as regards ensuring the well being of the masses and the poor in particular (tribals constituting a large section of it). Peoples’ struggle may act as catalysis in the formation of such political will. Serious deliberations on the tribal Bill and demanding major changes in the draft Bill shall strengthen the movement of the tribals and other forest dwellers. Let a comprehensive view emerge to deal with the Government’s move to enact the proposed new law. Let there be demand for making the forest policy subservient to tribal policy and not vice-versa. A massive movement has to be built around this demand so as to remove all hurdles in restoring the genuine rights of the tribals and the forest dwelling poor. In the days ahead the tribals and organisations fighting for the tribal cause would have to remain alert.

• Law Making is Not in the Hands of the People:

Law making is the work of the government and not that of the people. It has to be understood whether a new law is required? In the current circumstances a new law is required as the tribals do not have legal rights over their lands and for this they are not only harassed but are deprived of many Government benefits. Thus the proposed Bill once modified by incorporating what has been suggested has the potential to benefit the tribals a bit.

It is important to organise the people and oppose the negative aspects of the Bill. This must be done. However, since the Government has come out with a Law the effort should be to ensure that it is to the benefit of the tribals and the forest dwellers. This issue should be prominently raised through a strong forest dwellers’ movement across the country.

2. What is to be Done?

5.1 Create A Favourable Environment:

Unless a favourable environment is created neither the tribals shall welcome the new law nor will it have any meaning. Thus if the Government is serious of vesting forest rights in the tribals then not only it has to agree to modify the Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 by incorporating the suggestions placed at section 5.2 below, but would have to create a favourable environment by taking the following important steps:

• Suggested Amendments to the Proposed Law:

6.0 Conclusion:

It is clear that the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 in its present form will not be in the interest of the tribals and the tribals would rise against its imposition on them. While there are strong doubts about the extent of forestland that the Bill proposes to vest with the tribals it is clear that it denies community rights over forests; it makes rights subject to responsibility of forest protection, puts burden of forest management on tribals, and also provides for eviction of tribals from forests in an indirect manner. The Bill denies rights to other forest dwellers and it is understood that the original draft of the bill had provided for forest rights of all forest dwellers. By denying forest rights to the non-tribal forest dwellers the Government is actually playing the old game of divide and rule. The Bill has to undergo major modification based on the suggestions made through this response. However, unless a favourable environment is created in the tribal and forest areas and as regards tribal governance as has been indicated above the tribals shall not welcome the new law. Without a favourable environment the new law will not have any meaning for the tribals. It is important to educate the tribals about these policies of the Government and develop a strong movement in support of genuine demands of the tribals of India. In future the tribals and all forest dwellers would have to develop a strong movement in support of tribal rights, rights of forest dwellers and protection of tribal culture.

It is now time for all revolutionary and democratic political forces to launch a massive peoples’ movement both independently and jointly to take the fight of the tribals and forest dwellers to new heights. All patriots and sympathizers of the tribal cause would have to come forward to join or support such movements with all their might. Protection of forests, tribal livelihoods, and culture has the answer to many of humanity’s socio-economic problems. It is the duty of all citizens to rise for this cause.

    The history of India is replete with oppression of the tribals by the ruling classes. Their rights snatched away and neglected by the Government they are forced into extreme difficulties. Without land titles they live a life of second-class citizens being continuously harassed by the forest department officials, the police and the civil administration. In the name of development tribals continue to be evicted from their lands, habitats and livelihoods. The environment threatening mining and rapid industrialization in the forest areas of Orissa has put the tribals of Orissa, Jharkhand, Chhatisgarh, Andhra Pradesh and other states in a precarious situation. The forest mafia-Government nexus continues to cut down forests creating acute livelihood crisis, forcing tribals in to hunger, malnutrition and migration. Instead of protecting the forest-based livelihoods the Government has been taking active steps to evict tribals in the name of conservation of forests and wild animals. Instead of attempting to address the fundamental life and livelihood problems of the tribals the interventions of religious organisations and the NGOs are further accentuating the exploitation of the tribals.

    Tribals have fought against injustice over centuries and have successfully defended their rights. The British entered tribal areas by adopting divide and rule policy by bringing middlemen into tribal areas. Illegal forest boundary setting followed. With the entry of moneylenders they begun dictating terms and controlled the tribal economy. Successive Governments (British and Indian) have inflicted several injustices on the tribals over the last 300 years. However, the NDA Government shocked the country when in 2002, based on Supreme Court’s rulings, issued directions to all State Governments to evict from the forests all tribals without valid land titles. Across the country some 2 lakh tribals have become victims of this direction of the NDA Government. Now the Congress led UPA Government has prepared the Draft Scheduled Tribes (Recognition of Forest Rights) Bill 2005 that it claims to recognise the rights of the tribals over forestlands.

    The purpose of this note is to articulate different aspects of the Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 that could become the basis of the response of revolutionary and democratic political forces of the country and also of that of all patriots and sympathizers of the tribal cause. This response has been prepared after having benefited from the intellectual inputs from a number of persons that includes Ex-MP Com. Madala Narayan Swamy and Com. Diwakar from Andhra Pradesh, Com. Pradeep Singh Thakur from West Bengal, Com. Gananath Patra, Prof. Birendra Nayak, Democratic & Civil Rights Activists Advocate Biswyapriya Kanungo and Sudhir Pattnaik, Com. Bhalachandra Sarangi, Researchers on Tribal Issues Kundan Kumar and Prof. N.C. Panigrahi, tribal leader Com. Santosh Mullick, organisers in the genuine tribal co-operative movement Judhistira Pradhan and Rama Kissan and several other activists including Nilamadhab Nayak, Natabar Sarangi and many others. Most of these persons came together in the ‘Consultations On Issues Affecting Life and Livelihoods Of Tribals of India’ Organised by Loka Pakhya at Bhubaneswar during September 30 to October 2, 2005.

• Why this Bill?

Based on the Supreme Court’s interim observation in the Godavarman case, the Ministry of Environment & Forests, GOI had issued a directive on May 3, 2002 to all State Governments to summarily evict ‘all illegal encroachment of forestlands’ before September 30, 2002. According to the Government all the tribals without valid land titles before 1980 had to be evicted. In Maharastra, Madhya Pradesh, Gujarat, Rajasthan and Assam some 2 lakh tribals have become victims of this direction of the NDA Government. Some accounts of eviction (after the May 3, 2002 directive) related incidents described below (source: Saxena, Kumar, others) will move any human being, but the State Governments and the Central Government are even prepared to ignore the minimum humanitarian considerations.

The homes of 15 Adivasis

families of Kundal village in Bali Tehsil of Pali District in Rajasthan were razed to the ground on August 16, 2004 by the Forest Department with the protection of 100 policemen and 7 Mahila Police led by the ACF and SDO. The land with standing crop of maize was destroyed with tractor and local cattle herders were asked to put their crops into the land. This action by the Forest Department was undertaken in spite of an appeal concerning the same lands in the Revenue Appellate Authority under 34A of Wild Life Protection Act. The Adivasis were cultivating the land prior to 1980 and were entitled for regularization but no Verification process had been carried out.

, tribal families are resisting eviction from 1,213 acres of land, which has been in their possession for over 7 decades. The problem dates back to the pre-independence era when Sonebhadra was an area, which was unsurveyed. Hence though the legal status of the land was shown as revenue land and the tribals' are recorded as owners, but the orders in the Godavarman Case have resulted in the forest department claiming the land as forestland.

were totally destroyed by the forest department at 10 p.m. on 23rd and 25th of September 2004. Standing crop of paddy, Nagli, Tuvar dal and chillies worth Rs 2,20,000/- was fully destroyed. The homes of 73 tribal families of Bhandarpaani in Betul District (Madhya Pradesh) were set on fire by the Forest Department on the night of 4 July 2004. People have been kept in different places and families separated – relatives and even members of the same families are unaware of each other’s whereabouts. Their only fault was that their village has been situated on forestland for generations.

, of Mendhakhapuri village of Khakanar Tehsil of Burahanpur in MP, were severely injured in a forest department firing during an eviction drive. Tribals of more than 35 villages have their houses burnt, livestock, crops destroyed and they are not allowed to cultivate their land. Local police stations have not registered any complaints. Most of the casualties have been in the villages of Chimnapur, Davali, Jhanjar, Bomiliaput, Jamunala and Hasan pura in Nepanagar Tehsil where Adivasi houses were burnt as part of the eviction drive. The monsoon rains worsened conditions of the Adivasis who along with their children have been rendered shelter less. On 1st July 2004, in Bomiliaput village of Nepanagar Tehsil in MP, 50 houses were burnt, utensils, beds, and household items taken away. Crops like soybean, paddy, maize, jowar, wheat and cottonseeds were burnt. 50 houses were burnt in Hasanpura.

. On 8th July 2004, in Jhanjar, 5 houses were burnt. On the same day, in yet another hamlet of Jhanjar, 22 houses were burnt. In June 2004, in Davali village, 50 houses were burnt. Mr. Ter Singh Patel, the village headman, aged 65, was severely beaten. His wife too was injured. Police refused to accept the FIR. In June 2000, in Haldiakheda village, all 50 houses and animals were burnt. The incident was repeated again in February 2004 wherein all house were burnt In Nov 2003, in Chidiapani village, 40 houses were burnt.

In most places, however, this decision of the NDA government met with widespread protest as a result of which evictions could be successfully stopped in many parts of the country. The NDA and particularly the BJP had become the subject of ridicule by the tribals. Atal Bihari Vajpayee, the then Prime Minister, tried desperately to do some damage control before the 2004 elections by declaring in a huge public rally in Madhya with reference to tribals of a particular area of the state that tribals shall not be evicted and forestlands cultivated by the tribals shall be handed over to them. On his return to Delhi when his staff told him that such a step cannot be taken in the prevailing legal framework the NDA Government promptly issued a guideline on February 5, 2004 to regularise forestlands in the name of tribals by extending the cutoff date to December 1993. However, the Supreme Court immediately stayed the operation of these guidelines and the tribals across the country continue to remain apprehensive of impending eviction by the Government.

The Ministry of Tribal Affairs is now of the opinion that tribals have been subject to historical injustices. In this context the Ministry of Tribal Affairs, according to the covering letter enclosing the draft Bill dated June 3, 2005 has stated that ‘The Ministry of Tribal Affairs was mandated to formulate a comprehensive legislation to redress this historical injustice done to tribal community and for clear assertion of their legal rights on land. A Technical Support Group (TSG), comprising the representatives of the Ministries concerned and some reputed experts having rich experience and deep association with the cause of environmental protection and welfare of tribal people, was accordingly constituted, under the chairpersonship of Secretary (Tribal Affairs) to formulate the Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Bill. Director General (Forests), Ministry of Environment & Forests was also one of the members of the group. After a series of meetings of the TSG, the Ministry of Tribal Affairs has formulated a draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005.’ The covering letter further goes on to say that, ‘ A note (hereinafter referred as the "justification note") containing the background of the case, the existing legislative/policy frame of the Ministry of Environment and Forests on the subject, the main features of the proposed Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, the checks and balances provided in the proposed Bill. is Annexed.’ In preparing this response to the Bill the "justification note" has also been referred wherever relevant.

The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005(hereinafter referred as the "Tribal Bill, 2005"), has already evoked mixed reactions from different sections of the population. The Ministry of Environment and Forests (MOEF) has, however lodged its opposition (based on the conservationists view) to the proposed Bill on the ground that granting rights over forestland to the tribals would adversely affect the forests and environment. Having a very good access to the corridors of power it is understood that the Conservationists’ views are being seriously considered. Most of the NGO sector has welcomed the Bill and is seen to be taking credit for drafting it. That top NGO leaders have good access to the UPA Government’s decision-making bodies (National Advisory Council headed by UPA Chairperson Sonia Gandhi being one of them) have only helped their cause. The position of major ruling political parties is not yet clear. Political forces that have been fighting for the cause of tribals over decades are demanding for major amendments.

In this regard it is important to understand that all the actions of the Government regarding forests is being guided by the Environment policy that was drafted in 2004 at the behest of the World Bank which puts animals at the center of policy making instead of putting man at the center. When the Government of India is pursuing globalisation (in the interest of MNCs) as the central theme of all its economic policies and programmes the proposed new law cannot be seen anything other than as an extension of the policy of globalisation. The purpose behind Government’s effort to conserve forests is to hand it over to the MNCs to exploit. Such a motive of the Government becomes clear when in Orissa where MNCs are lining up to establish mining and big industrial complexes in forest areas, the Orissa Government is planning to facilitate large scale transfers of tribal land to non-tribals (including MNCs) by amending the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 that presently prohibits transfer of tribal land to non-tribals and at a time when the Government of India is talking of granting forestland rights to tribals.

There is a need for a deeper understanding of the Tribal Bill 2005. Understanding has to be also developed on the Draft Environment Policy 2004 and other related laws and policies before finalizing the response on the Tribal Bill 2005.

• Critical Evaluation of the Bill: Section-Wise

1. On objective of the Bill

The Preamble of the Bill states the objective of the Bill as ‘to recognise and vest the forest rights and occupation in forestland in forest dwelling Scheduled Tribes who have been residing in such forests for generations but whose rights could not be recorded.’ The preamble of the Bill goes on to say that ‘ the forest rights on ancestral lands and their habitat were not adequately recognised 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 who are integral to the very survival and sustainability of the forest eco-system.’

There cannot be any objection to the above stated objective of the Bill. The Bill creates an impression that the Govt. is serious about vesting forestland rights to tribals and a procedure is being laid down for that. But going back on the history of implementation of Progressive Laws of the country it can be safely said that the Government has never been serious about such aspects. If the Government truly accepts that historical injustice has been done to the tribals then the least it can be expected of the Government is to devise a legislation that would not only grant all the rights that the tribals have been enjoying till the colonial masters or the Indian Government snatched away, but also try to compensate for the immense economical and social losses that the tribals have suffered all these years. But the proposed Bill is not for that. Now the question that arises is why then the Government is mentioning about historical injustice for justifying the Bill? Perhaps the government wants to believe that the proposed Law is the only thing that it can do compensate the historical injustice done to the tribals. This seems to be a case of pleading before the ruling classes on behalf of the tribals. The tribals do not want such pleading by the Government. Further those who understand how the Forest Administration of the country works they can appreciate that such a lofty objective (of the Bill) can only be achieved by total rewriting of the Indian Forest Act 1927. Historical injustice can be only undone by changing the very approach of forest protection and administration, which has been anti-tribal and anti-Forest. The Government has to accept that the Indian Forest Act 1927 has failed and so has the Forest administration. But the "justification note" makes it clear that the proposed new law would be in consonance to the Indian Forest Act 1927 and the repressive Forest (Conservation) Act, 1980. The following quotes (Point 2 vii and viii) from the "justification note" would suffice in this regard: ‘The proposed Bill does not preclude the operation of the Forest (Conservation) Act, 1980 … and does not interfere with the prohibitive clauses of the Indian Forest Act 1927, Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972.’

Since there are a number of other laws, policies & programmes, regulations etc. that govern tribal affairs and the proposed Tribal Bill 2005 would be one of them, unless the provisions that adversely affect the tribals are removed this new Law would not come to the help of the tribals. On the contrary this Bill may be considered as the part of the tradition of historical injustice meted out to the tribals over centuries.

• On Definitions [Section-2]:

1. Definition of Gram Sabha

The definition in the Bill seems to be different from what has been defined in the Panchayat Raj system and the relevant state acts according to which the Gram Sabha is the general body of all voters of a Gram Panchayat. In this Bill the Gram Sabha has been defined as the general body of all voters of a village. This confusion needs to be removed.

• Definition of Village

The definition of a village given in the Bill is quite exhaustive and includes forest villages, un-surveyed villages, or settlements whether notified as a village or not. This definition shall be helpful to the cause of the tribals residing in such type of villages, which were not recognised before.

• On Forest Rights [Section-3]:

3.3.1 Certain Rights Ignored:

In section 3 of the Bill is given what constitutes the Forest Rights of the Forest Dwelling Scheduled Tribes. Apart from forestland rights, the Government proposes to legalise several other customary rights. However, the Bill denies many forest rights, the important ones being, Community right over forests, Individual right over wood & timber and Hunting rights.

3.3.2 Forests Belong to the Tribals: Community Right over Forests Essential:

The Forests have been the habitat of the tribals since centuries because of cultural considerations and as a result of gross historical injustices meted out to them by the ruling classes. The Plain areas have become the habitats of the non-tribal population and they own bulk of the plain lands. In the same logic the tribals own the forests. The difference in the case of tribals is that they have not claimed ownership nor they have been able to register the forests in their name. Any progressive law aimed at doing justice to the tribals in the wake of accepted historical injustices has to recognise that the entire forest belongs to the tribals and other forest dwelling populations. Only a small portion of the forests could be considered as common property of the population as a whole, as is the case in the plain areas. By not including this as an explicit right and yet saying that the life and livelihood of the tribals depends upon forests is indicative of the Government Policy that seeks to make the tribals always dependent upon the Government and wants the tribals to be at the mercy of the bureaucracy and ruling classes.

3.3.3 Individual Right over Wood & Timber Essential:

Right over wood & timber is a usufruct right recognised as a part of the Government sponsored Joint Forest Management (JFM) practices that has been implemented across the country since long. It is strange that the proposed new law does not speak of it. Wood and timber are important forest produces and it is essential that the tribals get a share of it. Denying this right alienates the tribals from forests.

3.3.4 Hunting Rights Can’t be Denied:

Hunting rights have not been recognised as a forest right although such a right has been a customary right enjoyed by the tribals from time immemorial. In this matter the question that arises is that should the conservationists’ view that tribals are a danger to the wild animals be allowed to prevail? The society has to find ways and means of finding an appropriate solution to this issue. Such a solution can be found.

• On the Rights of Tribals in Non-scheduled Areas [Sub-section-4 (1)]:

The sub-section 4(1) of the Bill introduces a new terminology as regards tribals. According to the Bill the forest rights are to be enjoyed by the ‘forest dwelling Scheduled Tribes’. The Bill defines "forest dwelling Scheduled Tribes" as ‘ the members or community of scheduled tribes who primarily reside in and around forests and includes the Scheduled Tribe pastoralist communities and who depend on the forestlands for bonafide livelihood needs’. Such a definition is supposed to include all the Scheduled Tribes whether they are in Scheduled Areas or outside these areas. However, there is reason to believe that the Bill shall apply only to the Scheduled Areas and exclude tribals in areas outside the Scheduled Areas. The reasons for such an apprehension are:

1. The "justification note" prepared by the Ministry of Tribal Affairs at Point 9 under the heading ‘Checks and Balances’ says " (The Bill is to) recognise forest rights of only the forest dwelling Scheduled Tribes (FDSTs), where they are scheduled. The Bill will not cover the entire 8.2% of ST population. Only tribes scheduled for the area living in the forests will benefit. A tribal from an outside area/state will not benefit. The Bill in actual terms will only benefit the tribal population on ‘as is where is basis’. Only occupation as per the ground situation existing for generations are being given legal recognition so as to avoid day to day harassment by the officials." Thus the scheme prepared by the tribal Affairs Ministry does not include all tribals.
2. Sub-Section 4(7) of the Bill provides that ‘In case any forest right recognised and vested under sub-section 4(1) is disputed by any State Government or local authority, the competent Authority appointed by the Central Government shall consider the records prepared at the time of declaring the area as a Scheduled Area, and while notifying any tribe to be or deemed to be a Scheduled Tribe under article 342 of the Constitution, along with evidence and then pass an appropriate order in the matter. Provided that no order denying or refusing to grant any forest right shall be passed unless the aggrieved member or members of the community are give an opportunity of being heard. ‘

Thus there is enough reason to believe that the proposed Law is meant for tribals in Scheduled Areas and that too only for those who have occupied forestland that has not been regularized. What happens to tribals in non-scheduled areas? What happens to tribals in scheduled areas who have not occupied forestland yet or those who cannot prove that they have actually occupied?

• On Cutoff date for Vesting of Forest Rights [Sub-section-4 (2)]:

The Bill provides at Sub-section 4(2) that ‘ The recognition and vesting of forests rights … in respect of forest land and their habitat shall be subject to the condition that such Tribes or tribal communities had occupied forest land before 25^th day of October, 1980 or which other date as the central Government may, by notification in the Official Gazette, specify.’

According to this provision the Government may actually declare any date as the cutoff date, such as August 15, 1947, January 26, 1950, etc. This is arbitrary. It is to be noted that NDA Government had issued a guideline on February 5, 2004 that extended the cutoff date to December 1993. The Supreme Court has stayed the operation of these guidelines because it violated its interim observations according to which the MoEF had already issued directions to State Governments on May 3, 2002 to evict tribals without valid land titles by September 30, 2002. The date of October 25, 1980 has been considered as a possible cutoff date because that day the Forest (Conservation) Act, 1980 became a law. Now that the Government has come out with a fresh date i.e. December 1993 there seems to be merit in it as it is only 12 years back (well within the limit of living memory of most tribal peasants and their parents) and this will lead to easy settlement of the occupations by the tribals. Therefore, the cutoff date may be revised to December 1993 as was declared by the NDA Government or any other date that would be in the interest of the tribals.

• Legalizing Eviction! [Sub-Section-4 (4)]:

Sub-Section 4(4) provides that ‘ Save as otherwise provided, no member of a forest dwelling Scheduled Tribe shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is completed in such manner as may be prescribed.’

This provision means that after a procedure for verification as prescribed under the rules is completed the tribals can be evicted. This means that if it can be proved, by the procedure followed for the purpose, that a particular tribal family has not occupied forestland before the cutoff date then the said tribal family has to be evicted. Thus by making this law the eviction of tribals from forests gets the legal sanction, which perhaps was missing in previous forest and related laws.

This gives us every reason to believe that the first part of the proposed law i.e. granting forestland rights to tribals would not be implemented and instead implementation would be carried forward with force as regards the second part i.e. eviction of the tribals. The "justification note" at point 2(xii) reads: ‘ the proposed Bill does not preclude the Ministry of Environment & Forests from taking action against the ineligible encroachers of forestland. …. ’ Thus it can be said that no matter what might have been the real intention of those who have drafted the Bill, the reason for which the Government seems to be pursuing is that it would get legislative sanction to evict tribals, a step which it was unable to take so far and was creating problems for transferring land in tribal areas to non-tribals (including corporates).

• Tribals Subjected to Forced Land Ceiling [Sub-Section-4 (5) i]:

Sub-Section 4(5) i states that ‘ Where the forest rights recognised and vested under sub-section 4(1) are in respect of land, such land in no case exceed an area of two and half hectares per nuclear family of a forest dwelling Scheduled Tribe.’ This will lead to several situations, as has been elaborated below:

1. Tribal families having more than 2.5 hectares of forestland under occupation (say 5 hectare) shall have to forego claim on land (in this case 2.5 hectare) in excess of 2.5 hectares.
2. Tribal families having less than 2.5 hectares of forestland under occupation (say 1 hectare) shall have to remain satisfied with that amount of land (in this case 1 hectare).
3. Tribal families having nil forestland under occupation shall remain landless. Although this may seem to be a hypothetical situation, there may be a few cases.

This is a case of indirect land ceiling forced on the tribals when during the last 58 years land ceiling has not been implemented in the revenue lands. This is a case of differential land rights. When the Government is considering granting land rights to the tribals who have been deprived of it because of historical injustice how is it planning to continue the injustice by granting differential rights.

8. On Commercial Use of Forest Rights [Sub-Section-4 (6) i]:

Sub-section 4(6) Para (i) states that ‘ The forest rights recognised and vested under sub-section 4(1) in the forest dwelling Scheduled Tribe shall be exercised only for bonafide livelihood purposes and not for exclusive commercial purposes.’ This provision can be erroneously interpreted and cultivation of commercial crops (such as oilseeds, cotton, vegetables, etc.) and sale of forest produce in the market may be prevented by the officials. Such actions will have extremely adverse effect on the tribal livelihoods and shall go against the interest of the tribals. The definition of ‘commercial purpose’ should specify that commercial purposes do not include growing of commercial crops and selling agricultural produce and forest produce in the market place.

• Rights Are Subject to Responsibilities [Sub-Section-4 (6) ii]:

Section 4(6) Para (ii) states that ‘ the forest rights recognised and under sub-section 4(1) in the forest dwelling Scheduled Tribe shall include the responsibility of protection, conservation and regeneration of forests." Having said this, it is to be noted that the Bill does not provide for any authority of the tribals regarding forest protection. It is a classic case of responsibilities without authority, a typical style of functioning that is characteristic of the Government. This is a dangerous provision.

By using this provision tribals can be penalised and whatever rights conferred could be withdrawn. The question that arise in this regard is why this special provision in case of tribals? Whether the Government proposes to link fundamental rights of all citizens to fundamental duties? Let the Government do that and then the same may of considered for tribals. Forest rights for the tribals are nothing less than a fundamental right. Thus it cannot be linked to responsibilities.

• On refusal of Forest Rights [Sub-Section 4(7)]:

Sub-Section 4(7) provides that ‘In case any forest right recognised and vested under sub-section 4(1) is disputed by any State Government or local authority, the competent Authority appointed by the Central Government shall consider the records prepared at the time of declaring the area as a Scheduled Area, and while notifying any tribe to be or deemed to be a Scheduled Tribe under article 342 of the Constitution, along with evidence and then pass an appropriate order in the matter. Provided that no order denying or refusing to grant any forest right shall be passed unless the aggrieved member or members of the community are give an opportunity of being heard. ‘ This provision empowers the Government to refuse forest rights to some tribals in certain areas.

• Burden of Forest Management on Tribals [Section 5]:

Section 5 states that ‘ The holder of any forest right under this Act shall ensure that: (a) save as those activities that are permitted under such rights, no activity shall be carried out that adversely affects the wild life, forest and biodiversity in the area including clearing of forest land or trees which have grown naturally on that land for any non-forestry purposes including reafforestation, (b) catchment areas, water sources and other ecologically sensitive areas are adequately protected, (c) the habitat of forest dwelling Scheduled Tribes is preserved from any destructive practices affecting their cultural and natural heritage; (d) any activity that adversely affects the wild life, forest and the biodiversity is intimated to the Gram Sabha and to the forest authorities; (e) appropriate measures taken in the Gram Sabha to regulate access to community forest resource and stop any activity which adversely affects wild life, forest and biodiversity are complied with.’

If it is the duty of the holder of forest rights (in this case tribals) to ensure all that has been stated in section 5 (as stated above), then it is hard to understand as to what else is to be done by the Forest Departments of different state Governments. On the one hand the Government armed with the Indian Forest Act 1927, the Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972, several other laws and budgetary support have not been able to protect forests. On the other hand it is trying to shift the ensuring function of forest protection and other responsibilities to the tribals and that too without any authority. The Government has actually found a novel way through the proposed Bill. And through these legalities the Government shall strangulate the tribals and slowly will build up a case for handing over the forests to the corporate sector for protection and management (actually exploitation for profits). Further without rights over forests why the tribals should protect biodiversity and ecological sensitive areas. It is a case of corporate sector making profits out of Indian bio-diversity and eco-tourism and the tribals protect the forests on behalf of corporates.

The Bill does not provide for any concrete mechanism to ensure forest protection. Granting and vesting forest rights to the tribals would have to go along with effective measures for forest protection, because without the forests, forest rights would not mean much.

• On Authority of Gram Sabha [Section 6]:

Section 6 deals with the Authorities for vesting of forest rights. The sub-section 6(1) states that, ‘ The Gram Sabha shall be the authority to initiate any action for determining the extent of forest rights that may be given to the forests dwelling Scheduled tribes within the local limits of its jurisdiction under this Act.’ Sub-section 6(3) states that, ‘ A Sub-Divisional Committee hall examine the decision taken by the Gram Sabha.’ The Sub-section 6(7) states that, ‘ There shall be constituted a District level Committee with such composition and functions as may be prescribed to consider the record of forest rights prepared by the Sub-divisional Committee for its final approval.’ All these provisions read together clearly states that Gram Sabha has very little power in recognizing and vesting of forest rights in the tribals. Making the District Committee, as the final authority shall in reality put the decision-making powers with the bureaucrats, a situation that is against the interests of the tribals. The Gram Sabha is the best judge of the claims of different tribal families on forestland as the members of the Gram Sabha reside in the villages and know about the land status of all families in the village. Besides, how can the general body of all voters of a village be sub-ordinate to the officials or a few persons at the sub-divisional or district level? By providing for multiple authorities the tribals shall be subject to a number of litigations before getting their rights and it is feared that in some cases litigations may go on for several years together.

If the sub-divisional level committee and the district committee have certain things to state they can place all the relevant information and analysis in front of the Gram Sabha once the Gram Sabha has prepared the draft record of rights. However, the Gram Sabha should have the final say in recognizing and vesting of forest rights. If still some have grievances they should be free to approach the courts.

• Offensive Law [Section 8]:

The section 8 of the Bill states: ‘ If any holder of any forest right conferred (i) contravenes or abets the contravention any of the provisions of this Act; or (ii) commits a breach of any of the conditions of the forest right vested or recognised under this Act; or (iii) engages in unsustainable use of forest or forest produce ;or (iv) destroys wild life, forests or any other aspect of biodiversity; or (v) fells trees for any commercial purposes, shall be guilty of an offense against this Act and be punished with a fine which may extend to one thousand rupees and in case of offence is committed more than once, the forest right of the person who has committed the offence shall be de-recognised for such period as the District Level committee, on the recommendation of the Gram Sabha may decide.’ Using this provision the forest rights of many tribals may be de-recognised. Then such people would loose their major source of livelihood and the situation would be worse than the present condition of the tribals. After all the very purpose of the Bill is to grant forest rights and grant them rights over forestlands so that the tribals can develop their livelihood based on such land. After having granted such rights the providing for taking back those rights is indirectly saying that such people do not have a right to life. The system of punishment cannot take away the right to life, unless the Government wants to use capital punishment for such an offense. This provision exposes the real character of the Government. It is therefore, necessary that the law of the land should be the basis of any punishment and offenses under this Act cannot be treated differently.

• Offenses: Why Leniency Towards Authorities? [Section-9 and Section-12]:

Section-9 states that, ‘ Where any authority or offices or member of such authority contravenes any provisions of this Act or any rule made there under shall be deemed to be guilty of an offence under this Act and shall be liable to be proceeded against and punished with imprisonment which may extend to thirty days or with fine which may extend to five thousand rupees, or with both. Provided that nothing contained in this sub-section shall render any member of the authority or head of the department or any person referred to in this section liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.’ Sub-Section-12 (1) States that, ‘ No suit, prosecution or other legal proceeding shall lie against any officer or other employee of the Central Government or the State Government for anything which is in good faith done or intended to be done under this Act’. Sub-Section-12 (2) States that, ‘ No suit or other legal proceeding shall lie against the Central Government or the State Government or any of its officers or other employees for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.’ Sub-Section-12 (3) States that, ‘ No suit or other legal proceeding shall lie against the Authority as referred to in Chapter IV including its chairpersons, members, member secretary, officers and other employees for anything which is in good faith done or intended to be done under this Act.’

This is a case of lenient behaviour towards the authorities, the State & Central Governments and strong action against tribals. This leniency becomes stark when one compares with the punishment proposed for the tribals. While the punishment for tribals can go up to the extent of taking away their source of livelihood that for the authorities is just a fine up to five thousand rupees and 6 months imprisonment and that too the same can also be waived off in certain cases. This is extremely unfair. Since this is matter of livelihood of the tribals and the Government has admitted that tribals have been subjected to historical injustice, unless offending authorities are punished strongly it would be difficult to realise the objectives of the Act. Thus there is a need to increase the level of punishment for the authorities, provide for punishment for the State and central Governments and their officers & employees and there shall not be any provision that can waive off punishment. The Courts should decide whether they should be punished or not.

• Why Permission Is Required for Going to Courts? [Section 10]:

Section-10 states that, ‘ No court shall take cognizance of any offence under section-9 of this Act unless any forest dwelling Scheduled Tribe in case of dispute relating to a resolution of a Gram Sabha or the Gram Sabha through a resolution against any higher authority gives a notice of not less than sixty days to the State Monitoring Committee and the State Monitoring Committee has not proceeded against such authority.’ Thus in this case the State Monitoring Committee is expected to play the role of a Forest Rights Tribunal. This is not desirable in the interest of the tribals who are to get the rights denied to them over centuries. In the interest of the tribals there should be no provision that requires complainants to take the permission of the Government to go to courts.

• Section-15 Has the Potential to Deny Rights Under This Act:

Section-15 states that, ‘ Save as otherwise provided in this Act, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other Law for the time being in force.’ The suspicion about the real objectives of the Bill, as indicated at point 2.1 above has come true. All existing laws have denied forest rights to the tribals. By providing that the proposed new law shall not be in derogation of any other law that is in force for the time being, the tribals shall be denied the forest rights that are supposed to be given under the proposed new law. Section-15 has to be modified if the Government’s intention is actually to give forest rights to the tribals. The modification should be such that nothing in any existing law shall hinder the recognition and vesting of forest rights under the new law.

• Assessment of the Bill and the Process of Enactment:

4.1.  Late Recognition of Rights of Tribals:

Without land titles in their name, the forest dwellers (mostly tribals) are subjected to continuous harassment. The forest department officials demand heavy bribes so as to allow the forest dwellers to continue to cultivate. On the one hand the forest officials have been making fast money by exploiting the plight of tribals & other forest dwellers and on the other hand they are threatening to evict forest dwellers from forest areas by citing the May 3, 2002 MoEF order. In many places tribals have been demanding land titles for several years. The Government is aware of this, but has never shown interest to carryout the legal formalities as per law to provide valid land titles in their name.

The situation in the forest areas is that forests are getting depleted and cases are pilling against forest dwellers.

Tribals and forest are interlinked. Many tribals have been forced to cultivate the forestlands as other communities forced them out of the plain lands, developed by them over generations. Tribals are agriculturists and they were entitled to rights over their cultivated land. It has been a long-standing demand to regularise the land rights in the name of tribals but their rights were not recognised during survey and settlement by the Government. Thus tribals are not encroachers.

The "justification note" attached to the Bill states that, ‘The rights of forest dwelling Scheduled tribes who are inhabiting the forests for generations and are in occupation of forestland have not been adequately recognised so far resulting in historical injustice to these forest dwelling Scheduled Tribes … .’ The note goes on to say that, ‘They (The Tribals) are integral to the very survival and sustainability of the forest eco-system, including wild life, and cannot survive in isolation.’ Thus the main tribal issue, according to the Ministry of Tribal Affairs, as has been brought out in the above paragraph, is that of granting forestland rights to the forest dwelling tribals. Such thinking on the part of Ministry of Tribal Affairs, if it were real, would help the forest dwelling tribals immensely. Thus it is case of late recognition of the rights of tribals.

• What About Rights of Non-tribal Forest Dwellers?:

A clear omission in the Bill is about the rights of the non-tribal forest dwellers. This will cerate dissentions and shall make the process of recognizing and vesting forest rights in the forest dwelling tribals very difficult. In fact the tribals themselves apprehend that this may lead to serious law and order problem in all those tribal areas where there is sizeable population of non-tribal forest dwellers. In areas where non-tribal forest dwellers constitute the majority the tribals may not be able to get any forest right in their name. The tribals have opined that it is a classic case of divide and rule, the infamous policy adopted by the British to rule India. Thus such a law is not considered feasible and the tribals do not want that their poor brethrens who have been residing alongside them loose their rights. Thus in the interest of tribals and also the non-tribal forest dwellers the forest dependent non-tribal poor should also be eligible for getting forest rights. The draft Bill should be appropriately modified. In fact it is understood that the original draft of the Bill included all forest dwellers but later on due to the objection of the MoEF the Bill was restricted to only forest dwelling tribals.

• Ministry of Environment and Forests Opposes the Bill !:

It is understood that the Ministry of Environment and Forests (MOEF) has lodged its opposition to the proposed Bill on the ground that granting rights over forest land is under the jurisdiction of the Forest Department and that such a step would adversely affect the forests and environment. In Orissa some bureaucrats have opposed the Bill saying that it would lead to destruction of the forests. It is being said that the opposition to the Bill by the MOEF is because it represents the conservationists. Various issues raised by the MoEF justifying their objection to the Bill are as follows:

1. By giving authority to the Gram Sabha the local vested interests shall takeover.
2. Distribution of 2.5 hectare of forestland is against 1988 National Forest Policy of maintaining forest cover in 1/3^rd of the geographical area of India. This will lead to an ecological disaster.
3. By this 74% of the Indian forests (present coverage is 68 million hectare) shall be handed over to 8.2% of the population (No. of tribal families is supposed to be 20 million).
4. In this way by 2013 forest cover would be only 26% of the existing coverage and wild life shall be completely wiped out.

4.3.1 People Would Have to Have Faith in Gram Sabha:

The MoEF’s concern that by giving authority to the Gram Sabha the local vested interests shall takeover requires a proper understanding. In reality the system of Gram Sabha has not been working well and the local ruling class politicians ably assisted by their agents take control of most of the Gram Sabha and its decision-making and the decisions thus made are far from being pro-people. But there is nothing to be surprised about this. The Gram Sabha at the village/Gram Panchayat level is a miniscule picture of the prevailing political system of India. The bureaucrats in MoEF who really decide the policy and the ministers tow them are making a fool of themselves by trying to protect the people from the politicians and touts at the village level knowing fully well that the Indian people are subjected to suffering in the hands of ruling class politicians on a daily basis. This brings us to a conclusion that if it would have been possible the bureaucrats would suggest that India should by governed by an external political force and not by the Indian politicians. They actually know that presently India is run by global powers and not by the Indian politicians. They know that the National and state level politicians tow the dictates of the global powers and doubt that whether the village level leaders would do that or not and therefore are raising their voice against the Gram Sabha. It is to be noted that in many Gram Panchayats the Gram Sabhas have taken bold decisions that have gone against the decision of the State and central Governments. The instances of forceful holding of Gram Sabhas in the presence of the District Collectors, armed police and hired people (to satisfy the quorum) proves that the concept of Gram Sabha has begun to work. It has been the experience that wherever revolutionary political forces have strength the Gram Sabha and the Gram Panchayat system is not in a position to take anti-people stand on important matters. Thus knowing fully well its limitations, the Gram Sabha should be declared as the final authority incase of granting forestland rights to the forest dwellers. Poor people would have to have faith in the Gram Sabha as they can participate in decision-making.

4.3.2 Tribals-Forest Interdependence is Hope for the Future:

Today a cursory glance of the Orissa forest map superimposed with the map of tribal population concentrations shows that all 95% of forests of Orissa are located in the tribal areas. This proves that tribals are not a threat to forests. This has been accepted by the Ministry of Tribal Affairs in the central Government as the Justification note says ‘the tribals people are inseparable from the eco-system including wildlife and cannot survive in isolation.’ Therefore, the Ministry of Tribal Affairs goes on to say that it is safe to assume that, ‘forest dwelling Scheduled Tribes are integral to the very survival and sustainability of the forest eco-system.’

Large-scale deforestation that has taken place, and which is apparently the cause of concern by the MoEF, is the handiwork of the forest mafia-Government nexus and not the tribals. Faced with acute livelihood crisis some tribals co-operate with the forest mafia for earning a little in the form of wages. The Government policy of urbanization, massive railroad expansion and industrialization is responsible for cutting down of forests. In fact because of this the tribals have been forced in to a situation of hunger, malnutrition and migration. This situation has further aggravated because the Government has so far not accepted the forest-based livelihoods as a sustainable livelihood and has done nothing in this regard. The Government continues to propagate commercial agriculture, commercial plantations, etc. through its ITDA programmes that leads to cutting of forests. Growth of area under cotton in south Orissa (which the Government is claiming to be a major success) by cutting forests is a glaring example of erroneous Government policies.

A pertinent question is why the attention of the MoEF is not on the mines, which destroy large tracts of forests and pollutes the environment? In Orissa since 1980 only 29 hectares of forestlands have been regularised in the name of tribals whereas 1224 hectares of forestlands has been regularised in the name of mining and other companies. The Government is seen to be on the side of the mine owners and big industrialists and not with the poor tribals.

Thus the concern of the MoEF that regularization of forestlands in the name of tribals shall lead to loss of forest cover is not borne by logic nor facts. By restoring the rights of tribals and developing a vibrant forest based livelihood system shall be the surest way to preserve forest and wild life. The MoEF must therefore change its mindset or else there would be very little use of the new law. The Government’s perspective on tribals and forests has to undergo a total shift if justice is sought to be done to the tribals and if the intention is to maintain appropriate levels of forest cover.

• Progressive Laws Are Not for Implementation:

In the past 58 years the Government has not implemented wholeheartedly any progressive law. The case of land reforms Act in Orissa proves the point. The chronology of events is as follows:

• 1948: Under the chairmanship of Nabakrushna Chaudhray a committee was formed for land reforms
• 1960: The OLR Act was passed by the Orissa Assembly
• 1961: The OLR Act was notified and before implementation could start it was subjected to amendment.
• 1972: Implementation started. The Tahsildars were asked to go slow.
• 1976: To a question by the Planning Commission as to the slow speed of land reforms in Orissa the Orissa Government replied that the social forces in Orissa are not in control of the Government and action as per OLR would disturb the social situation and even may lead to sever law and order problems. (Prof. R.S Rao)
• The OLR cases have been so treated that most cases the farmers lost the case and the landlords own
• Yet the farmers lost many cases because they could not bribe the officials.
• Knowledgeable persons are seen to be questioning the existence of the OLR Act.

Such has been the experience in almost all states, with some exceptions as regards the degree of implementation. However, the Government has always been using this law for its propaganda that it is interested in giving land to the landless and in fact has given to a large number of people. In this regard it is pertinent to note that in a reply to a recent Parliament Question, Sharad Pawar, the Minister for Agriculture, GoI, has admitted in the Parliament that the total land distributed to landless since 1947 is just around 2% of the total land available for re-distribution. Now one can understand about the fate of a progressive law like Land Reforms Act.

The Case of yet another legal provision that restricts transfer of tribal land to non-tribals will further make the situation clear. The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956, was formulated under Schedule V of the Indian Constitution for banning all transfer of land from scheduled tribes in scheduled areas to non-tribals, unless prior permission was obtained from the competent authority. However, over the years, large areas of land owned by STs were being transferred to non-STs in spite of the law. The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956, was amended in 1989, to include a provision that the land of a Schedule tribe in Scheduled areas can't be transferred to a non-tribal if the person concerned has less than 2 acres of irrigated or 5 acres of un-irrigated land. In 2002, another amendment has completely forbidden the transfer of tribal land, whether through sale or lease or mortgage.

This law legally affects the operation of land acquisition in Schedule V areas of Orissa. If the section 3(iii) which lays down the minimum land to be owned by a tribal before transferring land is 2 acres irrigated or 5 acres un-irrigated is read purposively along with Schedule V protection, land acquisition which leaves the tribal landless or less than the stipulated amount of land violates this clause of OSATIP regulations, 1956. The Government of Orissa seems to have clearly understood the threat posed by these two provisions of OSATIP Regulations and the possibility that it may be challenged legally. It also understands that these may pose major obstacles for the industrialization and mining in Scheduled Areas. One of the key arguments in the case filed against Vedanta's project in Lanjigarh is regarding this provision of minimum landownership under OSATIP regulation, 1956. In the Vedanta case, large number of ST has been made landless through land acquisition. The same is the situation in almost all-corporate linked land acquisition in schedule V areas.

It is for the above reasons that OSATIP Regulations, 1956 is sought to be amended by the GoO, and a committee headed by Balabhadra Majhi has been set up. This committee was set up after the tribal MLAs were made to create pressure on the Government that the section 3(iii), stipulating minimum landholding before sale is allowed, should be changed so that tribals can sell their lands, and that the inability to sell their land is affecting tribals in getting loans from Banks and financial institutions. The reason behind this stance from the tribal MLAs becomes clear when it is linked with further amendments in OSATIP Regulations, 1956 proposed by the Revenue Department. The Revenue Department has suggested that the act be amended to allow tribals to "donate land for developmental purposes in interest of general public after maintaining minimum reserve ratio. They can also lease out land to Public financial institutions/public undertaking/corporation for purposes of business or any other developmental purposes". This makes it clear that the Government has understood the legal threats the regulation poses to its land acquisition spree in the Scheduled areas, and wants to change it accordingly. Such an amendment will remove all protection for tribal land alienation, as any non-tribal could float such a company and bribe the local administration to "arrange" a donation by the tribals.

Almost all land acquisition by the GOO in Scheduled Areas after 2002 has violated the OSATIP Regulation, 1956, and therefore, is open to legal challenge. Therefore the Government wants to change the law itself. The Corporates who are involved in these land acquisition are also in a legal soup as almost all of them have violated OSATIP Regulations, 1956, by illegally encroaching on lands belonging to STs. A similar regulation referred as 1of 70 exists in Andhra Pradesh. This 1/70 regulation is further strict and totally prohibits any transfer of land from Scheduled Areas to non-tribals (that includes the Government as per the Supreme Court’s Samata verdict). But there may be some efforts on the part of the Andhra Pradesh Government to dilute this regulation.

The effort to dilute the regulations made under Schedule V of the constitution should be vehemently opposed and the Government has to be exposed. In addition the political forces and all democratic forces that are fighting for the tribals should demand for implementation of Andhra Pradesh type regulation in all tribal areas of the country.

1. Importance of Legal Rights and Validity of Forestland Rights:

There is an impression that the proposal to grant legal rights over forestlands is not very important for the tribals. This impression is based on the current state of affairs in most tribal areas, where the tribals are cultivating forestlands and have access to different forest produces. These people think that nothing less than complete change of the system shall be helpful to the tribals. But it is important to understand that without legal rights over forestlands they do not get recognition as a resident of the area and do not have access to the Government benefits that reaches the tribal villages, such as housing support, relief & rehabilitation during natural calamities and bank loans. Further without legal rights over the forestlands the Forest department officials, police, revenue administration continuously subject the tribals to harassment, ruling party politicians, etc. Thus getting legal rights over the forestlands is very important for the tribals, as it would help the tribal family in providing some amount of security of their livelihood.

However, the question that arises from the proposed Tribal Bill 2005 is that will the legal right the Government proposes to grant the tribal help access Government benefits? Will the forestland right be a legal right in the same way as the title of revenue land? The doubts in this regard should be clarified and the forestland right should have the same legal importance as the title of revenue land.

• Law Making in The Interest of the Corporates:

With the adoption of New Economic Policy the Government is consciously promoting the interest of the corporate sector including that of the MNCs. The Government has become the chief facilitator for the corporate sector and the most important service that the Government provides for the expansion of capitalism is to acquire large tracts of land for setting up of huge infrastructure and industries. In doing so all the state Governments have been using the Land Acquisition Acts and have unleashed a land acquisition spree that covers forests, mountains, coastal plains, water bodies, eco-sensitive areas, habitats of millions of poor people, prime agricultural lands, etc. The Government is not bothered if such acquisition takes away the land, habitat and livelihood of millions of poor. The Central Government ably supported by all state Governments (including the so-called left front Governments of West Bengal and Kerala) are marching ahead in the single pursuit of establishing huge infrastructure, mines and industries by displacing millions of poor people across the country. The tribals in the state of Orissa have been facing the brunt for over 50 years now. The table below gives a picture of land acquired and tribal families affected by different major projects:

Land Acquisition for Some Major Irrigation

And Industrial Projects in Scheduled Areas of Orissa:

1/ Area Acquired in Hectare, 2/ No. of House Holds (HHs) Affected, 3/ ST HHs affected, 4/ ST HHs Affected in % of total HHs, 5/ NA: Not Available.

The data about land acquired, villages affected and the number of people displaced or affected by various development projects in Orissa hasn’t been compiled properly till date. The data as provided below which doesn’t include people affected by minor irrigation projects, infrastructure projects such as roads etc, may be taken as a conservative estimate.

Land Acquisition for Different Projects:

1/ Area acquired or affected (ha.), 2/ No of villages affected

It is estimated that more than 1.5 million people were displaced by development projects between 1951 and 1995 in Orissa. Of this 42% were tribals. As per yet another estimate, around 25% of the displaced tribals were never resettled even partially.

The conditions of tribals must be similar in other states. With privatisation of water resources of India that has started with the infamous Pani Panchayat programme across the country, the sale of rivers such as Sheonath and taking over of urban drinking water projects in Delhi, Jamsedpur, Tirupur, etc. the major irrigation projects shall pass into the hands of the large MNCs such a Vivendi of France and Beetchel of USA. The Government of Orissa is in the process of channelising investments to the tune of Rs. 250000 Crores in mining, power, water, industry and other infrastructure in the next five years. Several thousands of hectares of land, most of which will be from the Scheduled Areas and other tribal areas would have to be acquired for this. All new land acquisitions shall be for the corporate sector and the chief beneficiary of the earlier land acquisitions are also the corporates. It is also to be noted that the MNCs are eyeing on the forest resources and particularly on the rich bio-diversity of Indian forests as a source of raw materials/resources for the emerging big business of Genetic Engineering, Eco-tourism, Eco-entertainment, etc.

In order that the Government’s land acquisition spree is not derailed the Government is engaged in activities such as amending the stringent provisions of different state laws/regulations (as is being done in the case of regulation 2/56 in Orissa) that prohibit transfer of tribal land to non-tribals, launching the Land bank programme, etc. . Thus the question that arises in connection to the proposed Tribal Bill 2005 is that whether it is also being pursued to ensure corporate control over forest and other natural resources of the country?

In many parts of the country revolutionary political forces have been leading massive movements against tribal land alienation and all such forces have their revolutionary land programmes. Massive movements are gaining ground in many parts of the country, where revolutionary forces, democratic forces and patriots of different types are joining hands to foil the move to evict tribals and the poor from their land and livelihoods. It seems the Government’s strategy is that before this fire catches on it would put cold water on it. Perhaps the Government has decided to give some rights to the tribals before taking away large tracts of land and forests out of their control and therefore, has drafted this new Law. Give up to 2.5 hectares, cerate a favourable environment and then give away large tracts of forest and revenue lands in the tribal areas to the MNCs. There is every reason to believe that the Government with the ulterior motive of scuttling the peoples’ movements that are gaining ground is pursuing the proposed new Law. It is the duty of the Government to clear this air of doubt about its intentions by putting a stop to all land acquisitions in the tribal areas, publish a white paper on all land acquisitions made so far in the tribal areas and the implementation of schedule V provisions and related laws/regulations. Only after a thorough public debate of the white paper and after plugging the holes in the regulations/laws relating to the tribals and forests land acquisition for different projects may be considered. Only after fulfilling this condition the proposed new law shall be welcome.

• Legislation to Provide Working Space to Government:

In view of what has been said so far a feeling id gaining ground that the sole purpose of the proposed Law is to give the Government the much needed flexibility in discharging the role of a so-called democratic Government which is presently not possible because of the rigidities of the 1980 Forest (Conservation) Act. In other words the proposed law is to provide working space so that it can confer forestland rights once in a while and keep fooling the majority of the tribals as has been the practice with regard to the Land reforms Acts. It was on the strength of the 1980 Forest (Conservation) Act the Supreme Court has stayed the MOEF guidelines issued on February 5, 2004 to extend the cutoff date for regularizing forest encroachments to December 1993. Thus the purpose of the new law is for its own working and shall have very little significance as regards addressing the historical injustice meted to the tribals. The new law shall, however, cerate a lot of illusion in the minds of the unsuspecting & simple tribals and some intellectuals, who seem to have a lot of faith in the so-called democratic governance structure of India. The new law shall be used to cheat the tribals. But only granting rights over forestlands may lead to loss of rights over revenue lands, which the tribals have been cultivating/using. This is a serious question.

In reality tribals will run behind the officials and the ruling politicians for years together and only a miniscule percentage of them may be lucky to get their forestland and other rights. The new law shall, however, be well publicized by the Government and their agents in the form of NGOs. It will be repeat of what was seen after the 73^rd amendment and the PESA laws. New opportunities shall emerge for NGOs to enhance their involvement in tribal areas and the tribals may not benefit anything from the new law in the present form.

• Apprehensions Regarding Forestlands to be Regularised Under New Law:

The total forestland in Orissa that is pending regularization before 1980 is 4429 Hectare. This is what the Government of Orissa has placed before the MoEF in 2000 for regularization. The GoO, however, accepts an encroachment of 47, 300 hectares as per the recommendation of the Central Empowered Committee (CEC) of the Supreme Court (SC) filed in the SC after their hearing on July 25, 2002. It is further understood from the said CEC recommendation (as referred above) that the MoEF’s estimate of total forestland encroachment is 12.5 lakh Hectare, the details of a portion of which are as follows:

Estimate of Forestland Under Encroachment as per MoEF (July 2002):

From the above data it becomes clear that the total forestland that can be regularised in Orissa by the Forest department is 47, 300 hectares. The forest enquiry committee set up by the Govt. of Orissa in 1959 had reported the total land under only shifting cultivation to be 30, 720 sq. km. or 30.72 lakh hectares and according to the spirit of the law this amount should have been settled in the name of tribals, which successive Government have not done. Why should the tribals of Orissa accept such a new law that will only regularise 47, 300 hectares as against their due of 30.72 lakh hectares? The MoEF in its objection to the enactment of the New Law has stated that distribution of 2.5 hectare of forestland is against 1988 National Forest Policy and by this 74% of the Indian forests (present coverage is 68 million hectare) shall be handed over to tribals who account for just around 8.2% of the population. Thus as per the MoEF estimate the total forestland that is supposed to be handed over to the tribals would be around 50 million hectares. Why should the tribals of India accept such a new law that will only regularise 1.25 million hectares of forestland as against their due of 50 million hectares?

Unless anomalies to the estimates of actual encroachment according to the MoEF are clarified and the tribals are assured of their rightful ownership of forestlands (either individually or on community basis) there is no reason why the tribals of India would accept this new Law.

• Undoing Historical Injustice Is Not Possible in the Current System:

If the intention of the Government were to undo the historical injustice done to the tribals the factors that were responsible for injustice over centuries would have to be understood and accepted. After having done that historical injustice can be undone only by a combination of the following three moves:

1. Restore the rights which were denied so far
2. Compensate the socio-economic losses incurred due to the injustice done
3. Remove the factors responsible for injustice

4.9.1 Restoring the Rights:

The tribals were living in forests for centuries together. Yet some tribals had cleared forests to make cultivable land had settled around such cultivable lands. But these tribals had to flee back to the forests because of the invasion of other communities who took over their cultivable lands by force or by deceit. Thus the tribals both by culture and because of torture by the ruling classes had adopted the forests as their habitat, source of livelihood and culture. By intruding into the forests, cutting down trees and hunting animals rampantly, declaring forests as Government territory the non-tribal population and their Government have snatched away from the tribals many of their customary and traditional rights. The tribals had the right to unchecked entry into all deepest of forests to collect different forest produces, hunt animals and enjoy the deep woods; but this right was taken away by declaring certain forests as reserved forests, sanctuaries, national parks, etc. The tribals had developed and mastered the art of shifting cultivation; but this right was taken away from them by making shifting cultivation illegal. The tribals had developed the valley bottom lands and the hilly lands into productive agricultural lands and were developing a typical variety of settled agriculture, but this right was taken away from them when the Government (British or Indian) declared that as forests. The tribals had the unchecked access to all water sources (streams, springs, rivers, etc.); but this right is being taken away from them with indiscriminate mining, industrialization and privatisation of water resources. The tribals had the right to sale the forest produce and buy their requirements; but this right has been put into question because of several restrictions in collection and marketing of forest produce. All these rights and many more have to be restored to the tribals to undo the historical injustice done to them. Is the Tribal Bill 2005 meant for restoring all these rights? Actually it is not so. The aim is to actually only give some partial right to a limited extent of forestlands which they can prove as under their occupation as on the cutoff date to be decided by the Government.

4.9.2 Compensating the Losses:

Because of the taking away of all the rights as discussed above the tribals have suffered immensely. By using modern economic tools their suffering can be valuated. Will the Government compensate this loss? Can it compensate? The ruling class politicians and the bureaucracy will promptly answer that there is no way to compensate losses incurred in the past. But why not? Can we not, henceforth, factor the value of losses incurred by the tribals in all future monetary gains of non-tribals those who were responsible for the tribals’ losses? If it is possible can we not collect these amounts and pay back to the tribals? Or can we not give to the tribals some resources more than their genuine due? The answer to all these questions can be yes, provided the Government has a political will. The least that the Government and the ruling class can do is to handover the entire forests to the tribals. Actually forest should according to natural law belong to the tribals. By restoring this right we will be not only undoing the historical injustice but we would have compensated the losses to a great extent. Never in the last 58 years, the Government has tried to compensate the injustices done to the poor and the deprived. It has only put the poor in a situation of constant ridicule by the ruling classes and has tried to make them dependent upon the largesse given by the Government. Relative poverty ahs increased and their power in the society has sharply declined.

4.9.3 Removing Factors Responsible for Injustice:

What were the factors responsible for doing injustice to the tribals? This question has to be answered. If the same factors responsible for taking away the tribal rights exist in the society and the Government then whatever right the Government will grant through this new law shall be soon taken away again. Some of the important factors responsible for snatching away of tribal rights are indicated below:

1. The greed of the ruling classes is responsible for the desire to acquire property and exploit all possible resources for amassing wealth.
2. The indifference of the Government to the machinations of the ruling class politicians and others and active collaboration in such activities with the aim of snatching the property and resources of the masses.
3. Development of a culture that justifies the loot of property and resources of the masses by a few.
4. The perpetual weakness of the masses in understanding the machinations of the ruling class politicians and others, understanding the style of functioning of the Government, confronting the predominant culture propagated by the ruling class and protecting themselves from the clutches of the ruling classes.
5. Lack of appropriate social mobilization of the masses to confront the exploiters and propagate a peoples’ culture.

The current period in India’s history is witness to limitless greed of the ruling classes. Theories are being propagated that there cannot be limit to human needs and humans need not bind themselves within limits. This is getting reflected in unusual growth in business and profits. But still the corporate sector is not satisfied. They are scheming day in and day out for yet greater expansion of their business. Trade is touching all conceivable areas. The society is seeing trade in seas, mountains, microorganisms, water, air, cosmos, knowledge, care & emotions. Everything is tradable and through trade humans can improve their quality of life. The whole world is being sharply divided into those who can afford all the goods and services available in the market place and those who cannot. Without removing such greedy people from the scene the poor of the world cannot think of being safe and the Indian tribals definitely cannot expect their rights to remain intact after passage of the proposed new law.

The Indian Government and the state Governments have been always indifferent to the machinations of the rich people and ruling class politicians and have often played an active role of collaborating in such activities of the rich people and ruling class politicians. The Government instead of protecting the interest of the masses and the poor in particular has always protected the interest of the rich and the ruling classes. Today’s Indian Government and the state Government have actually become worse. In the era of new economic policy when the controls put on the exploitative practices of the rich and ruling classes are being liberalized, public services are increasingly being privatized and the Indian productive forces are being increasingly exposed to global competition without the advantage that is enjoyed by the global players, the Government is entirely on the side of the rich and ruling classes. In no way one can expect any good treatment from the current government. In fact whatever is being given to the poor and in this case tribals has to be seen as a small fish to catch a big fish in the days to come.

4.9.4 Justice can be Done Only by Changing the System:

It is not possible in the current system to undo the historical injustice done to tribals because neither the Government and the ruling classes are prepared to restore all the rights that were denied to tribals, nor they are prepared to compensate the losses incurred by the tribals, nor there is any move to remove the factors responsible for historical injustices done to tribals. Historical Injustice can be undone only by a complete change of the System. The tribals desirous of undoing the historical injustice done to them have to wait till then but have to start preparing for a complete change of the prevailing system.

1. The Fight is Political

In J & K 4 lakh acres of land was acquired by the Government and all 4 lakh acres were distributed. This could happen because the Supreme Court and the Parliament could not interfere in such a decision and the political leadership in J&K at that time had the political will to do so. In all other states similar will is necessary. Without it all progressive laws would prove futile as regards ensuring the well being of the masses and the poor in particular (tribals constituting a large section of it). Peoples’ struggle may act as catalysis in the formation of such political will. Serious deliberations on the tribal Bill and demanding major changes in the draft Bill shall strengthen the movement of the tribals and other forest dwellers. Let a comprehensive view emerge to deal with the Government’s move to enact the proposed new law. Let there be demand for making the forest policy subservient to tribal policy and not vice-versa. A massive movement has to be built around this demand so as to remove all hurdles in restoring the genuine rights of the tribals and the forest dwelling poor. In the days ahead the tribals and organisations fighting for the tribal cause would have to remain alert.

• Law Making is Not in the Hands of the People:

Law making is the work of the government and not that of the people. It has to be understood whether a new law is required? In the current circumstances a new law is required as the tribals do not have legal rights over their lands and for this they are not only harassed but are deprived of many Government benefits. Thus the proposed Bill once modified by incorporating what has been suggested has the potential to benefit the tribals a bit.

It is important to organise the people and oppose the negative aspects of the Bill. This must be done. However, since the Government has come out with a Law the effort should be to ensure that it is to the benefit of the tribals and the forest dwellers. This issue should be prominently raised through a strong forest dwellers’ movement across the country.

2. What is to be Done?

5.1 Create A Favourable Environment:

Unless a favourable environment is created neither the tribals shall welcome the new law nor will it have any meaning. Thus if the Government is serious of vesting forest rights in the tribals then not only it has to agree to modify the Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 by incorporating the suggestions placed at section 5.2 below, but would have to create a favourable environment by taking the following important steps:

• Suggested Amendments to the Proposed Law:

6.0 Conclusion:

It is clear that the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 in its present form will not be in the interest of the tribals and the tribals would rise against its imposition on them. While there are strong doubts about the extent of forestland that the Bill proposes to vest with the tribals it is clear that it denies community rights over forests; it makes rights subject to responsibility of forest protection, puts burden of forest management on tribals, and also provides for eviction of tribals from forests in an indirect manner. The Bill denies rights to other forest dwellers and it is understood that the original draft of the bill had provided for forest rights of all forest dwellers. By denying forest rights to the non-tribal forest dwellers the Government is actually playing the old game of divide and rule. The Bill has to undergo major modification based on the suggestions made through this response. However, unless a favourable environment is created in the tribal and forest areas and as regards tribal governance as has been indicated above the tribals shall not welcome the new law. Without a favourable environment the new law will not have any meaning for the tribals. It is important to educate the tribals about these policies of the Government and develop a strong movement in support of genuine demands of the tribals of India. In future the tribals and all forest dwellers would have to develop a strong movement in support of tribal rights, rights of forest dwellers and protection of tribal culture.

It is now time for all revolutionary and democratic political forces to launch a massive peoples’ movement both independently and jointly to take the fight of the tribals and forest dwellers to new heights. All patriots and sympathizers of the tribal cause would have to come forward to join or support such movements with all their might. Protection of forests, tribal livelihoods, and culture has the answer to many of humanity’s socio-economic problems. It is the duty of all citizens to rise for this cause.