Forest and Tribal Rights
ïƒ˜ The Lok Sabha on 13 December, 2006 passed by voice vote the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, 2005, seeking to recognise and vest the forest rights and occupation in forest land of forest-dwelling Scheduled Tribes and other traditional forest-dwellers.
ïƒ˜ The redrafted Bill was adopted with several important amendments to the one tabled in 2005 and includes other traditional forest-dwellers also instead of only the Scheduled Tribes.
ïƒ˜ The cut-off date, too, has been fixed as December 13, 2005 as against October 31, 1980 in the original Bill.
ïƒ˜ The dwellers would have to be residing in forest land for three generations or 75 years for entitlement to land rights and the rights to collect and market the forest products to the dwellers. Now, each family would be entitled to four hectares of forest land as against 2.5 hectares envisaged in the previous Bill.
According to the Asian Indigenous and Tribal Peoples,
The history of Forest Dwellers Act
• When the government of India passed the Forest Conservation Act on the mid-night of 25 October 1980, hundreds of thousands of indigenous/ tribal peoples became illegal residents on land over which they have been living for generals. Yet, thousands of others also had legal rights under the Forest Conservation Act. For two and half decades, the state governments failed to record and recognize and even limited those ancestral rights of tribal communities permitted by the Forest Conservation Act and the subsequent 1990 Guidelines issued by the Ministry of Environment and Forest.
• The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 re-christened as “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” was brought essentially to circumvent the Supreme Court's order in the case of Godavarman Thirumalpad vs Union of India, which banned regularization of tribal revenue villages.
• After the Supreme Court stayed the regularisation of revenue villages on 23 November, 2001 in the aftermath of Godavarman Thirumalpad vs Union of India, all the tribals living in the forest irrespective of whether their rights were recognize under the 1980 Forest Conservation Act or nor were effectively extinguished.
• After acrimonious public debate for more than a year since tabling in the Parliament on 13 December 2005, the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 which was re-christened as “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” was passed in the parliament, lower house of Indian parliament, on 13 December 2006. President of India assented to the Bill on 29 December 2006 and the Act came into force.
• However, the debate since the tabling of the initial bill in December 2005 to the passage of the Act in the Lok Sabha have brought the age-old prejudices against the tribal peoples to the fore and further eroded their rights.
• The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 faced stiff opposition from two quarters. First, a few environmentalists advocated management of forest, wildlife and other bio-diversity with complete exclusion of tribal people, local communities or forest dwellers contrary to the Rio Declaration, decisions of the Conference of Parties of the Convention on Biological Diversity and recommendations of the United Nations Forum on Forest. Second, the Ministry of Environment and Forest had opposed the Bill on the ground that implementation of the bill will result in the depletion of the country's forest cover by 16 per cent. This is despite the fact that over 60% of the country's forest cover is found in 187 tribal districts, where less than 8% of national population lives. This reflects the culture of the tribal peoples to conserve forest.
• On the other hand, the Ministry of Environment and Forest has diverted 73% (9.81 lakh hectares of forestland) ofthe total encroached areas for non-forest activities such as industrial and development projects.
• Following objections to the 2005 Draft Bill, it was referred to the Joint Parliamentary Committee (JPC) headed by V Kishore Chandra S Deo of the Congress party
• On 23 May 2006, the JPC submitted its recommendations on the issue of cut-off date, inclusion of all forest dwellers under its purview, increase in the ceiling on land occupation and the empowering of Gram Sabhas. Many of the recommendations were against the intended beneficiaries i.e. tribals.
What is missing?
• The nomenclature of the original bill “Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 as tabled in the parliament on 13 December 2005 recognised the symbiotic relationships of the tribals with forest. The same was stressed in the National Forest Policy of 1988. The present law has only diluted the interests of the forest dwelling Scheduled Tribes with that of the “Other Traditional Forest Dwellers”. The forest dwelling Scheduled Tribes no longer remain the focus of the law contrary to what it originally envisaged.
• While tribals and forest are synonymous and one cannot be separated from the other, same is not the case with the “other traditional forest dwellers” i.e. non tribals.
• Tribals have emotional, psychological and cultural attachments with the forest and they always lived in the forest. On the other hand, for non-tribal forest dwellers, forest and forest related livelihood activities are the last resort when no other options of livelihood were left
• Another conspicuous feature of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is the extension of the cut-off date to qualify for holding of rights from 25 October 1980 to 13 December 2005.
• This extension of the cut off date is basically to benefit the other traditional forest dwellers that are required to prove that they have been occupying the forestland for three generations under clause (o) of Section 2 of the Act. By extending the date from 25October 1980 to 13 December 2005, one generation has already been covered!
• Sub-section (6) of Section 4 states, “Where the forest rights recognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of subsection (1) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.”
• This provision hardly benefits the Scheduled Tribes. Rather than empowering, this law seeks to dispossess the forest dwelling Scheduled Tribes of their ancestral lands that they have in possession in excess of 4 hectares as provided in Sub-section (6) of Section 4. Nor the Bill provides for compensation to those who will be forced to share their lands in excess of 4 hectares.
• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has not taken into account the fact that hundreds of forest dwelling scheduled tribes face charges under different provisions of the draconian Forest Conservation Act of 1980 for accessing minor produce. Although the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ensures tenurial security and legitimizes the scheduled tribes' ownership over the minor forest produce and their role in the conservation of forest, it failed to address charges/ prosecution pending against the tribals under the Forest Conservation Act of 1980 and Indian Forest Act of 1927 with retrospective effect.
• There is no provision in the Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act, 2006 providing that cases under the Forest Conservation Act of 1980 against the forest dwelling Scheduled Tribes for accessing minor forest produce would be dropped or closed.
• There were 2,57,226 forest cases pending against 1,62,692 tribals between 1953 to 30 June 2004 under Sections 26, 33 and 41 of the Indian Forest Act 1927 pertaining primarily to illegal felling of trees for domestic use and ferrying of wood by bullock carts in Chhattisgarh as on 8 November 2005, and 2,531 such cases in Orissa as on 10 March 2005.
• The Land Acquisition (Amendment) Bill, 2007 amends The Land Acquisition Act, 1894. The Act redefines ‘public purpose’ as land acquired for defence purposes, infrastructure projects, or for any project useful to the general public where 70% of the land has already been purchased. The Bill bars acquisition for companies except under the 70% condition@
• The Bill establishes the Land Acquisition Compensation Disputes Settlement Authority at the state and central levels to adjudicate disputes resulting from land acquisition proceedings@
• The Land Acquisition Act, 1894 addresses the process of land acquisition in India and was last amended by the Land Acquisition Amendment Act, 1984. The Act takes a broad definition of ‘public purpose’ permitting a diverse range of projects. A number of Supreme Court cases have highlighted concerns related to fair compensation, valuation of land, definition of ‘public purpose’ and other issues related to land acquisition. Citing problems with the principal Act, the government recently introduced the Land Acquisition (Amendment) Bill, 2007@
• Central Government has retained the 70:30 formula for land acquisition for industrial projects, which will allow states to acquire 30 per cent of land for private developers provided they have acquired the remaining 70 per cent for setting up industrial and SEZ projects. Thus, the state will come into picture only after the private company concerned has acquired the 70 per cent of the land. Earlier, the Left parties, some state governments and the Parliamentary Standing Committee on Rural Development had objected to the 70:30 formula and sought full authority for the state to acquire land$
• The R&R Bill, which is designed to give a statutory status to the National R&R Policy, 2007, makes it mandatory for parties concerned to get a social impact assessment prepared by independent multi-disciplinary expert group in cases where 400 or more families are displaced in plain areas and 200 or more families in tribal and hilly areas. The bill has also revised the quantum of compensation to be given to persons whose land is to be acquired by the state. It will be 60 per cent of the land's market value in the case of normal acquisition, and as much as 75 per cent in the case of urgent acquisition. Land will be acquired at existing market prices or area floor rate, whichever is higher. In case of a dispute, land owners will be able to approach the Land Acquisition Disputes Settlement Authority, which will be set up in every state$
• Under the prospective legislation, a company must first buy directly from landowners 70 per cent of the land required. The state steps in to buy the rest in case some recalcitrant landowners are holding out; even here, the sellers are guaranteed a 60 per cent premium on the average land price over the previous three years*
• The proposed legislation will emphasize more on market forces rather than state intervention in land acqiuisitions and transactions*
• While leaving the major part of the transaction to the market may stop the matter from becoming a political game of football in populist competitive politics (as has happened in West Bengal in the case of Singur and Nandigram), it is an inadequate solution to a complicated problem. Even assuming that the purpose for which the land is to be transferred is a legitimate one from an economic and environmental point of view, Indian history is replete with instances of uninformed, cash-strapped peasants being induced to sell their land at nominal prices by the lure of ready cash from developers, speculators, and touts of large corporate interests. This is how many Adivasis have lost their land even in recent years. Even in the case of informed, market-savvy sellers, thousands of small, uncoordinated farmers are no match for a large corporate buyer in the bargaining process*
• In many cases the State government did very little to get the landowners a good price; but there is potential here for community organisers (and panchayats) to get involved in ensuring a fair price. In particular, the provision of a 60 per cent premium on the past average price is not good enough. The average past price is for the land as agricultural land, whereas use for industrial or infrastructure purpose will probably multiply the value many times, the gain from which the farmer is deprived. So, over and above the value of the agricultural land being considered as a minimum floor of basic compensation, the farmers should be compensated with a share in the enterprise or company, so that they can benefit from future profits*
• A land sale displaces not just landowners, but other stakeholders as well (sharecroppers and agricultural labourers working on the land, for example). In West Bengal, the government had announced compensation to be paid to registered sharecroppers. But the state also needs to be involved in some form of welfare payments (and job training and so on) to unregistered sharecroppers and landless workers*
• The state often needs to get involved in building roads, providing electricity, water supply and so on for the new company, and this may require coordination in the land transaction itself between the transactors and the state right from the beginning*
@ Legislative Brief, The Land Acquisition (Amendment) Bill, 2007,
$ Central Government ammends Land Acquisition Act,
* Pranab Bardhan, The real issues behind land acquisition,
According to PESA, the Forest Rights Act, and Tribal Rights in India by Sanjoy Patnaik (2007), http://www.recoftc.org/site/fileadmin/docs/Events/RRI_Conf
• Rights of the tribals over local resources were considered sacrosanct and non-negotiable, and a move was initiated to secure Constitutional recognition for these rights. The sustained campaign led first to the 73rd Amendment of the Constitution to give recognition to decentralized governance in rural areas and then the constitution of the Bhuria Committee to look at tribal rights over resources through extension of the provisions of this Amendment to the Schedule V areas.
• Based on the recommendations of the Bhuria committee, Parliament passed a separate legislation in 1996 as an annexure to the 73rd Amendment specifying special provisions for Panchayats in Schedule V areas. Known as the Panchayats Extension to Schedule Areas (PESA), 1996, it decentralized existing approaches to forest governance by bringing the Gram Sabha center stage and recognized the traditional rights of tribals over “community resources”—meaning land, water, and forests.
• With PESA, an effort was made to vest legislative powers in the Gram Sabha, to manage community resources, and to resolve disputes according to the customs and traditions of the people.
• Although the Central Act leaves no room for doubt that reserve forests should be considered community resources under the purview of PESA, the official assumption is that reserve forests are out of the PESA domain.
• Some states like Maharastra, Gujarat, and Orissa, in an effort to perpetuate State control over forest resources, tried to dilute the provisions of PESA although they had no legal jurisdiction to do so
• All the scheduled states were given one year to amend their respective Panchayat Acts to conform to the letter and spirit of PESA. Unfortunately, a handful has even ventured into adhering to the PESA provisions as regards tribal law making.