Forest and Tribal Rights

Forest and Tribal Rights

According to the Report entitled: PESA, Left-Wing Extremism and Governance: Concerns and Challenges in India’s Tribal Districts by Ajay Dandekar & Chitrangada Choudhury, Institute of Rural Management, Anand, Commissioned by Ministry of Panchayati Raj, Government of India, http://www.downtoearth.org.in/dte/userfiles/images/PESAcha
pter.pdf


•    Tribal communities make up 8.2% or approximately 8 in 100 Indians-an economically and culturally vulnerable and distinctive group.

•    It is universally acknowledged that the PESA law which governs areas in nine states of India, covered by the Fifth Schedule of the Indian Constitution, has much to achieve on its promise of securing people’s participation, as the keystone of a meaningful democracy.

•    In 1996, the Parliament passed the Panchayats (Extension to Scheduled Areas) Act or PESA, with the political class acknowledging the dire need to protect the rights and resources of the communities in Schedule V areas, by recognizing and upholding their right to self-governance. The law, according to Dileep Singh Bhuria, the Chairman of the committee that worked on it, could ‘mark the beginning of a new era in the history of tribal people...’

•    PESA recognized the gram sabha (a habitation was the natural unit of the community, and its adult members constitute the gram sabha, as against the elected gram panchayat) to be pre-eminent.

•    PESA constructs tribal self-governance around certain key features. PESA recognizes a habitation to be a natural unit of the community, whose adult members constitute the gram sabha.

•    When passed in 1996, the central PESA envisaged that the nine states with Schedule Five areas would enact their own legislations devolving power to their respective tribal communities, as well as amend pre-existing laws to bring them in harmony with PESA within a year.

•    States have varyingly adopted PESA provisions in their state panchayat acts with Madhya Pradesh and Chhattisgarh having undertaken the most work on this.

•    There is a lack of appreciation about the place of the Fifth Schedule read with PESA in various organs of the state.

•    The formal responsibility of (a) implementation of PESA that stands for total transformation of the paradigm of governance in the Scheduled Areas and (b) dealing with tribal affairs in general is vested with two different ministries in the Union Government, namely, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs respectively. The two are virtually functioning in isolation.

•    There is lack of information and understanding about PESA in general and its radical character in particular amongst the political executive and even concerned administrators.

•    There is virtually no effort to convey and disseminate the message of PESA.

•    In many instances, the states have diluted PESA’s power in the wording of their legislations, and the rules governing their implementation. Barring Madhya Pradesh and Chhattisgarh, most state legislations have given the bulk of the powers to the gram panchayat, and not the gram sabha. This runs contrary to Section 4 (n) of PESA.

•    Neither the state legislations nor the rules adequately address how communities might exercise their powers with regard to the issues of land, displacement, liquor and so on. They have also failed to put in place redressal mechanisms that communities can access, when these powers are violated. Only the Madhya Pradesh Act’s provisions address this to some extent on the issue of land alienation, by allowing a community to seek official redressal after three months if it is unable to reclaim alienated land by itself.

•    In most states, the enabling rules for the gram sabha’s control over prospecting of minor minerals, planning and management of water bodies, control and management of minor forest produce, dissent to land acquisition are not yet in place, suggesting reluctance by the state governments to honour the mandate of PESA. In states like Andhra Pradesh and Gujarat the rules are yet to be framed for PESA.

•    The process of consultation before acquisition of land, as envisaged under section 4(i) of PESA, has not been formalized in most of the states. The state of Madhya Pradesh (including Chattisgarh), however, has made elaborate rules in the year 2000 about consultation with concerned gram sabhas before acquisition of land. These rules envisage ‘consultation with gram sabha before issuing notification under Section 4 of the Land Acquisition Act.’

•    Sub-sections 4(k) and 4(l) of PESA envisage prior consultation with gram sabhas before grant of leases etc, of minor minerals. Despite the directions issued by the ministry of Mines and Minerals the action in respect of consultation before lease of minor minerals is granted has been rather poor. The rules made by the government of Madhya Pradesh (including Chhattisgarh) concerning minor minerals, however, can be said to be most progressive.

•    In December 2009, the Ministry of Panchayati Raj sent the nine state governments a set of draft PESA rules as a potential template, but this was not accompanied by a timeframe for action. Even here, in some aspects, such as land acquisition, these rules do not adequately address the challenges as they exist on the ground today, and need to be strengthened. Further, while these draft rules are laid out mandating the devolution of power to the community, the draft document does not list any punitive measures for violation of rules.

•    Since the enactment of PESA, Governors have slowly but surely been neglecting their duties towards the law, and towards tribal communities, even as the prospects of ‘peace’ and governance based on participatory empowered peoples involvement have deteriorated in many PESA villages.

•    An analysis of annual reports submitted by the Governor to the Centre in the past years shows that these are hardly objective assessments as required by law, but largely a laundry list statement of physical targets and financial allocations under various schemes as reported by the state government’s departments. None of the reports had analysed or even touched upon the themes of displacement, alienation, poor governance and insurgency, which are the dominant facts of life in many PESA areas.

•    The central Land Acquisition Act of 1894 has till date not been amended to bring it in line with the provisions of PESA and to recognize the gram sabha, while a newer bill meant to replace it is yet to be tabled in parliament.

•    PESA empowers the gram sabha to prevent the alienation of tribal land by non-tribals. The Orissa Scheduled Areas Transfer of Immovable Property Act reinforces this principle. But these laws are non-functional on the ground, as acknowledged in a 2002 amendment.

•    The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) was a result of the polity responding to protracted struggles by tribal communities and movements to assert rights over the forestlands they were traditionally dependent on. The Act turned colonial forest policy on its head, which had established the rights of the state over the forests over the traditional rights of the community. Further, by recognizing the validity of the gram sabha to give effect to these rights, this Act has great synergy with PESA’s provisions. However continuing bureaucratic control, resistant attitudes of the forest department officials to give ownership to communities, and inadequate efforts at awareness have led to the slow implementation of the Act.

•    The Forest Rights Act was meant to empower a community to stake claims to land titles. But securing these rights is a process of continuous struggle, and government and panchayat functionaries are unaware of the law.

•    Of the 76 left-wing extremist-affected districts in the country today, 32 are PESA districts, according to official estimates. Drawing on a four-decade-old movement of militant left politics, the CPI (Maoist) was formed in September 2004, by merging the Communist Party of India (Marxist Leninist) and the Maoist Communist Centre. Its spread currently extends across significant parts of Bihar, Jharkhand, Orissa, Chhattisgarh and Andhra Pradesh, leading to the term, ‘The Red Corridor’.


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