Resource centre on India's rural distress
 
 

Forest and Tribal Rights

KEY TRENDS

 

• As per the information collected by the Ministry of Tribal Affairs (MoTA) upto 31 October, 2017, 41,89,827 claims (40,50,131 individual and 1,39,696 community claims) have been filed and 18,24,271 titles (17,59,955 individual and 64,316 community claims) have been distributed. A total of 36,51,414 (87.15 percent) claims have been disposed off @@

• In the last 10 years, only 3 percent of the minimum potential of CFR rights could be achieved. The laggard states in terms of implementation of CFR rights (no or extremely poor performance) are Assam, Bihar, Goa, Himachal Pradesh, Tamil Nadu, Uttarakhand, Haryana, Sikkim and Punjab @$

• The low performing states in terms of implementation of CFR rights (achieved less than 2 percent of minimum potential) are Rajasthan, West Bengal, Karnataka and Jharkhand. The Individual Forest Rights (IFR) focused states have been Tripura and Uttar Pradesh @$

• The states, which have implemented Individual Forest Rights (IFRs) and Community Rights (CRs), but have ignored CFRs are Telangana, Andhra Pradesh, Madhya Pradesh and Chhattisgarh. The better performing states (in terms of implementing the IFRs and CFR rights) are Maharashtra, Odisha, Kerala and Gujarat (only in Scheduled V areas) @$
 

• Among the 10 states affected by Left Wing Extremism (LWE), the number of claims rejected under the FRA as a proportion of the total number of claims disposed off has been the highest in Bihar (94.9 percent). The percentage of claims disposed off with respect to total number of claims received has been the highest in Chhattisgarh (100 percent) and lowest in Bihar (53.9 percent) *$    

• At the national level (based on aggregation of data for 19 states) the number of title claims rejected under the FRA as a proportion of the total number of claims that were disposed off has been 53.5 percent, as on 30 June, 2016 *$


• Of the nine States considered to be seriously affected by Left Wing Extremism (LWE), six are States with Scheduled districts. Among the 83 LWE-affected districts, 42 districts have Scheduled Areas. These regions are marked by the following features: (1) serious neglect and deprivation, widespread poverty and poor health and educational status; (2) exploitation and oppression by traders and money lenders, on the one hand, and absence of an effective and sensitive civil administration, on the other; (3) large-scale displacement of tribal people for development projects; (4) occurrence of all of the above despite the special Constitutional and legal provisions for the tribal people (in the form of the Fifth Schedule, laws to prevent alienation of tribal land and restoration of alienated lands, and in recent years, progressive legislations, such as Panchayats (Extension to the Scheduled Areas) Act-PESA, 1996 and Forest Rights Act-FRA, 2006) $

 

• Almost 60 percent of the forest cover of the country is found in tribal areas. Of the 58 districts, wherein the forest cover is greater than 67 percent, 51 districts are tribal districts. With regard to mineral resources, three States with substantial tribal populations – Odisha, Chhattisgarh and Jharkhand - have considerable mineral reserves. These three States alone account for 70 percent of India’s coal reserves, 80 percent of its high-grade iron ore, 60 percent of its bauxite and almost 100 percent of its chromite reserves $

 

• Based on the Forest Rights Act claims status (data provided by Ministry of Tribal Affairs) as of 31 January 2014, it could be seen that there is generally a gap between the land claimed and the actual extent of the titles issued to the claimant. Claims under FRA are often rejected due to absence of ST community certificates. The Other Traditional Forest Dwellers (OTFD) claims have largely not been entertained due to lack of evidence. OTFD’s have mainly been discouraged from filing claims and most of their claims have been rejected at the Gram Sabha level itself or not accepted by the Forest Rights Committee (FRC). Claims have also been rejected due to inability to prove plot cultivation for seventy five years prior to 13th December 2005. There are reports of claims being rejected on the ground that the claimed land is ‘disputed’ $

 

• Some of the major concerns regarding implementation of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) related to high rate of rejection of claims, little progress in the recognition of community rights and habitat rights of PTGs, convening of Gram Sabha meetings at the Panchayat level, insistence of particular form of evidence, claimants not being informed about rejection of claims and inadequate awareness about the provisions of the Act and the Rules $$


• 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 α

• 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 α

• 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

• The law provides for recognition and vesting of forest rights to Scheduled Tribes in occupation of forest land prior to 13 December 2005 and to other traditional forest dwellers who are in occupation of forest land for at least three generations, i.e. 75 years, up to a maximum of 4 hectares. These rights are heritable but not alienable or transferable. Forest rights include among other things, right to hold and live in the forest land under individual or common occupation for habitation, self-cultivation for livelihood, etc**

• One of the most crucial aspects of the Forest Rights Act is the realization of forest rights within a protected area through declaration and demarcation of the “critical wildlife habitat” (CWLH)**

• 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*

• 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*

• The British established a mode of forest governance that imposed restrictions on local forest dwelling communities through a definition of forests as national property for colonial objectives, which tried to acquire control of forests for commerce and national development at the cost of local forest-based livelihoods**

• 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**

 

@@ Status Report on Implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 [for the period ending 31st October, 2017], prepared by the Ministry of Tribal Affairs, please click here to access

 

@$ Citizen's report entitled Promise and Performance: Ten years of the Forest Rights Act in India (released in December 2016), brought out by the Community Forest Rights-Learning and Advocacy (CFR-LA) process (http://www.cfrla.org.in/) and supported by OXFAM–India and Rights and Resources Initiative (RRI), please click here to access 

 

*$ Monthly Update on Status of Implementation of the Scheduled Tribes and Other Traditional Forest Dweller (Recognition of Forest Rights) Act, 2006 (released on 10 August, 2016), Ministry of Tribal Affairs,  please click here to access

 

$ Report of the High Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities of India (chaired by Prof. Virginius Xaxa), May 2014, Ministry of Tribal Affairs (Please click here to access)


$$ FAQ on the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), prepared in December, 2012, http://tribal.nic.in/writereaddata/mainlinkFile/File1539.pdf


α PESA, Left-Wing Extremism and Governance: Concerns and Challenges in India’s Tribal Districts by Ajay Dandekar & Chitrangada Choudhury, http://www.downtoearth.org.in/dte/userfiles/images/PESAchapter.pdf

* Asian Indigenous and Tribal Peoples Network, http://www.aitpn.org/Issues/II-09-06-Forest.pdf

** Patnaik, Sanjoy, PESA, the Forest Rights Act, and Tribal Rights in India, Proceedings: International Conference on Poverty Reduction and Forests, Bangkok, September 2007  

Please note that information about habitat loss of elephants and human-elephant conflicts as a category of environment and related themes is also given under "Environment" section of the im4change website. For better results, click here.

 

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[inside]Status of the implementation of Panchayat (Extension to the Scheduled Areas) Act, 1996 (PESA Act)[/inside], as on 6th June, 2018


• The state having the highest number of PESA districts (both fully and partly covered) is Madhya Pradesh (20), followed by Chhattisgarh (19) and Jharkhand (16). The state having the highest number of PESA blocks is Jharkhand (131), followed by Odisha (119) and Madhya Pradesh (89). The states for which data is not available on PESA villages are Odisha, Rajasthan and Telangana. Please consult table-1.

• Based on the report of Dileep Singh Bhuria Committee submitted in 1995, Parliament enacted the PESA Act (1996). The provisions of the act extends Part IX of the Constitution with certain modifications and exceptions (Section 4) to the Fifth Schedule Areas of 10  states, namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana. These Schedule Areas in 10 states cover 108 districts (45 fully and 63 partly).


Table 1: Details of notified Fifth Schedule Areas (FSA)/ Panchayat Extension to the Scheduled Areas (PESA) in 10 states

Table 1 Details of notified FSA PESA areas in 10 states of India

Source: Website on Panchayat (Extension to the Scheduled Areas) Act (1996), http://pesadarpan.gov.in/state-profiles (accessed on 6th June, 2018)

Note: ‘NA’ means Not Available
 

• Only six states i.e., Andhra Pradesh, Gujarat, Himachal Pradesh, Maharashtra, Rajasthan and Telangana have framed rules for implementation of provisions of PESA Act.

• In 7 states viz. Andhra Pradesh, Telangana, Gujarat, Jharkhand, Odisha,  Maharashtra and Rajasthan, there is no compliance of concerned subject laws under land acquisition with the PESA Act. Please check table-2.

• In 6 states viz. Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Madhya Pradesh and Rajasthan, there is no compliance of concerned subject laws under forest produce with the PESA Act. Please check table-2.

• In 4 states viz. Andhra Pradesh, Telangana, Jharkhand and Maharashtra, there is no compliance of concerned subject laws under mines and minerals with the PESA Act. Kindly consult table-2.

Table 2: Status of compliance of concerned State subject laws with the PESA Act

Table Compliance status of concerned state subject laws with the PESA Act

Source: Answer by the Minister of State for Panchayati Raj Shri Parshottam Rupala to the Unstarred Question no. 1463 of Lok Sabha, (to be answered on 9 March, 2017), please click here to access (accessed on 6th June, 2018)

Website on Panchayat (Extension to the Scheduled Areas) Act (1996), http://pesadarpan.gov.in/state-profiles (accessed on 6th June, 2018)

 

Note: * Jharkhand Government adopted a resolution on 8th February, 2007 conferring ownership right over Minor Forest Produce (MFP) to Gram Panchayats; 'Y' means Yes and 'N' means No

 

• Chhattisgarh has not made its Panchayati Raj Act compliant with sections 4(m)(ii) and 4(m)(v) of the PESA Act.

• Gujarat has not made its Panchayati Raj Act compliant with section 4(m)(i) of the PESA Act.

• Jharkhand has not made its Panchayati Raj Act compliant with sections 4(i), 4(j), 4(k), 4(l), 4(m)(i), 4(m)(ii), 4(m)(iii) and 4(m)(v) of the PESA Act (1996).

• Maharashtra has not made its Panchayati Raj Act compliant with sections 4(h) and 4(m)(iv) of the PESA Act.

• The state of Madhya Pradesh has not made its Panchayati Raj Act compliant with section 4(m)(i), 4(m)(ii), 4(m)(iii) and 4 (m)(v) of the PESA Act.

• The effective implementation of the PESA Act is expected to bring about the following benefits to the tribal population:

a. Institutionalize self-governance and people’s participation in decision making. By notifying Gram Sabha at village (hamlets or group of hamlets/ habitation or group of habitations) level, people will feel more comfortable in taking part in the governance of the village;

 

b. Reduce alienation in tribal areas as they will have control over the utilization of public resources in the village through Gram Sabha;

c. Reduction of alienation and resentment among tribal population will have a positive impact in reducing left wing extremism in the districts affected by it;

d. Reduce poverty and out-migration among tribal population as they will have control over natural resources such as minor water bodies, minor forest produce, minor minerals, etc. Control over and management of these resources will improve their livelihoods and incomes;

e. Minimise exploitation of tribal population as they will be able to control and manage money lending, consumption and sale of liquor and also village markets;

f. Check illegal land alienation and also restore unlawfully alienated tribal land. This will not only reduce conflict but will also improve socio-economic status of tribals;

g. Better implementation on developmental schemes and programmes due to enhanced people’s participation in planning and identification of beneficiaries;

h. More accountable and responsive local administration due to control over functionaries of social sector and also power to issue utilisation certificates;

i. Promotion of cultural heritage through preservation of traditions, customs and cultural identity of tribal population. 

 

Table 3: Compliance of State Panchayati Raj Acts with Section 4 of PESA Act 

Table 3 Compliance of State Panchayati Raj Acts with Section 4 of PESA Act

Source: Answer by the Minister of State for Panchayati Raj Shri Parshottam Rupala to the Unstarred Question no. 1463 of Lok Sabha, (to be answered on 9 March, 2017), please click here to access (accessed on 6th June, 2018)

 

Note: 'Y' denotes the provision has been made PESA compliant and 'N' denotes action is yet to be completed 

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Please click here to access the [inside]Draft National Forest Policy 2018[/inside].

 
According to the [inside]Status Report on Implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 [for the period ending 31st October, 2017][/inside], which has been prepared by the Ministry of Tribal Affairs (please click here to access):

• As per the information collected upto 31 October, 2017, 41,89,827 claims for land rights (40,50,131 individual and 1,39,696 community claims) have been filed and 18,24,271 titles (17,59,955 individual and 64,316 community claims) have been distributed. A total of 36,51,414 (87.15 percent) claims have been disposed off.

• As on 31 October, 2017, the total number of claims disposed off as a proportion of total number of claims received was the highest in Uttar Pradesh (99.85 percent), followed by West Bengal (99.74 percent), Madhya Pradesh (99.26 percent), Chhattisgarh (97.74 percent) and Rajasthan (96.90 percent). The said proportion for Odisha was 89.93 percent, Andhra Pradesh was 83.21 percent, Tripura was 96.14 percent, Jharkhand was 81.78 percent and Karnataka was 60.63 percent.

• Out of the total individual claims received upto 31 October, 2017, most came from Chhattisgarh (8,52,530), followed by Odisha (6,16,717), Madhya Pradesh (5,76,533), Maharashtra (3,52,950) and Karnataka (2,98,795).

• The share of Chhattisgarh, Odisha, Madhya Pradesh, Maharashtra and Karnataka in total number of individual claims filed upto 31 October, 2017 were 21.05 percent, 15.23 percent, 14.23 percent, 8.71 percent and 7.38 percent, respectively.

• Out of the total number of individual titles distributed upto 31 October, 2017, most were distributed in Odisha (4,11,082), followed by Chhattisgarh (3,86,206), Madhya Pradesh (2,19,827), Tripura (1,25,020) and Maharashtra (1,06,898).

• The share of Odisha, Chhattisgarh, Madhya Pradesh, Tripura and Maharashtra in total number of individual titles distributed upto 31 October, 2017 were 23.36 percent, 21.94 percent, 12.49 percent, 7.10 percent and 6.07 percent, respectively.

• As on 31 October, 2017, the number of individual titles distributed as a proportion of the number of individual claims received was the highest in Kerala (68.07 percent), followed by Odisha (66.66 percent), Tripura (63.07 percent), Jharkhand (54.88 percent) and Andhra Pradesh (51.94 percent). The said proportion for Telangana was 51.06 percent, Chhattisgarh was 45.30 percent, Madhya Pradesh was 38.13 percent, Maharashtra was 30.29 percent, Karnataka was 4.16 percent and for the entire country was 43.45 percent.

• Out of the total number of community claims received upto 31 October, 2017, most came from Madhya Pradesh (39,416), followed by Chhattisgarh (27,548), Odisha (13,495), Maharashtra (11,408) and West Bengal (10,119).

• The share of Madhya Pradesh, Chhattisgarh, Odisha, Maharashtra and West Bengal in total number of community claims filed upto 31 October, 2017 were 28.22 percent, 19.72 percent, 9.66 percent, 8.17 percent and 7.24 percent, respectively.

• Out of the total number of community titles distributed upto 31 October, 2017, most were distributed in Madhya Pradesh (27,263), followed by Chhattisgarh (14,161), Odisha (5,964), Maharashtra (5,748) and Gujarat (3,516).

• The share of Madhya Pradesh, Chhattisgarh, Odisha, Maharashtra and Gujarat in total number of community titles distributed upto 31 October, 2017 were 42.39 percent, 22.02 percent, 9.27 percent, 8.94 percent and 5.47 percent, respectively.

• As on 31 October, 2017, the number of community titles distributed as a proportion of the number of community claims received was the highest in Uttar Pradesh (75.00 percent), followed by Madhya Pradesh (69.17 percent), Jharkhand (52.43 percent), Chhattisgarh (51.40 percent) and Maharashtra (50.39 percent). The said proportion for Odisha was 44.19 percent, Telangana was 21.04 percent, Tripura was 19.86 percent, Karnataka was 10.94 percent and for the entire country was 46.04 percent.

• At the national level, the extent of forest land for which titles distributed was 1,41,04,745 acres (41,19,650 acres for individual titles and 99,85,095 acres for community titles).

• Out of the total forest land distributed for individual titles upto 31 October, 2017, most got distributed in Chhattisgarh (8,25,272.61 acres), followed by Madhya Pradesh (7,90,476.32 acres), Odisha (6,11,833.36 acres), Maharashtra (5,77,026.20 acres) and Tripura (4,35,726.57).

• The share of Chhattisgarh, Madhya Pradesh, Odisha, Maharashtra and Tripura in total forest land distributed for individual titles upto 31 October, 2017 were 20.03 percent, 19.19 percent, 14.85 percent, 14.01 percent and 10.58 percent, respectively.

• Out of the total forest land distributed for community titles upto 31 October, 2017, most got distributed in Maharashtra (44,35,944.77 acres), followed by Chhattisgarh (16,34,025.82 acres), Madhya Pradesh (13,20,974.14 acres), Gujarat (11,61,350.87 acres) and Telangana (4,54,055 acres).

• The share of Maharashtra, Chhattisgarh, Madhya Pradesh, Gujarat and Telangana in total forest land distributed for community titles upto 31 October, 2017 were 44.43 percent, 16.36 percent, 13.23 percent, 11.63 percent and 4.55 percent, respectively.

• At the national level, 40,50,131 individual claims were filed at gram sabhas, out of which 26,48,197 individual claims were recommended to Sub Divisional Level Committee (SDLC) as on 31 October, 2017. At the national level, SDLC recommended 19,87,491 individual claims to the District Level Committee (DLC) for final approval as on 31 October, 2017. At the national level, DLC approved 15,46,163 individual claims as on 31 October, 2017. The total number of titles distributed for individual claims was 17,40,343 as on 31 October, 2017. The total number of individual claims rejected was 17,53,663 as on 31 October, 2017. The total forest land given for individual claims was 16,67,164 hectares as on 31 October, 2017.

• At the national level, 1,39,696 community claims were filed at gram sabhas, out of which 96,018 community claims were recommended to SDLC as on 31 October, 2017. At the national level, SDLC recommended 85,092 community claims to the DLC for final approval as on 31 October, 2017. At the national level, DLC approved 69,767 community claims as on 31 October, 2017. The total number of titles distributed for community claims was 63,099 as on 31 October, 2017. The total number of community claims rejected was 38,952 as on 31 October, 2017. The total forest land given for community claims was 40,40,828 hectares as on 31 October, 2017.

• It must be noted that under the FRA, individuals and communities can apply for title claims before the Gram Sabha, based on which the latter makes recommendation to the Sub Divisional Level Committee (SDLC) such as who has been cultivating land for how long, which minor forest produce is collected, etc. The SDLC further recommends the claims to the District Level Committee (DLC) for final approval.
 
Please click here to know more about the Forest Rights Act. 
 
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According to the Citizen's report entitled [inside]Promise and Performance: Ten years of the Forest Rights Act in India (released in December 2016)[/inside], which has been brought out by the Community Forest Rights-Learning and Advocacy (CFR-LA) process (http://www.cfrla.org.in/) and supported by OXFAM–India and Rights and Resources Initiative (RRI), please click here to access: 
 
• The bare minimum estimated potential forest area over which Community Forest Resource (CFR) rights can be recognized in India (excluding five north-eastern states and J&K) is approximately 85.6 million acres (i.e. 34.6 million ha).

• The rights of more than 200 million Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) in over 170,000 villages are estimated to get recognized under FRA.

• The present report highlights FRA’s potential in transforming forest governance by empowering local communities and the gram sabha to protect and conserve forests; ensuring livelihood security and poverty alleviation; securing gender justice; meeting SDG, especially the goals of eliminating poverty and achieving ecological sustainability; and dealing with climate change. By securing land and resource rights, FRA provides an opportunity to address Left-wing extremism in 106 districts in India’s 10 states.

• The current report says that the Forest Rights Act (FRA) recognizes 14 pre-existing rights of forest dwellers on all categories of forestland, including Protected Areas (PAs). The major rights are: a. Individual Forest Rights (IFRs) and Community Rights (CRs) of use and access to forest land and resources; b. Community Forest Resource (CFR) Rights to use, manage and govern forests within the traditional boundaries of villages; and c. Empowerment of right-holders, and the gram sabha, for the conservation and protection of forests, wildlife and biodiversity, and their natural and cultural heritage (Section 5, FRA).

• There are 75 Particularly Vulnerable Tribal Groups (PVTG) in India, each with a distinct customary territory or habitat. Section 3(1)e of FRA recognizes rights, including community tenures of PVTGs, over their customary habitat and habitation. FRA requires District Level Committee (DLCs) to ensure claiming and recognition of habitat rights of PVTGs by facilitating consultations with traditional leaders and other PVTG members.

• In the last 10 years, only 3 percent of the minimum potential of CFR rights could be achieved.

• The laggard states in terms of implementation of CFR rights (no or extremely poor performance) are Assam, Bihar, Goa, Himachal Pradesh, Tamil Nadu, Uttarakhand, Haryana, Sikkim and Punjab.

• The low performing states in terms of implementation of CFR rights (achieved less than 2 percent of minimum potential) are Rajasthan, West Bengal, Karnataka and Jharkhand.

• The Individual Forest Rights (IFR) focused states have been Tripura and Uttar Pradesh.

• The states, which have implemented Individual Forest Rights (IFRs) and Community Rights (CRs), but have ignored CFRs are Telangana, Andhra Pradesh, Madhya Pradesh and Chhattisgarh.

• The better performing states (in terms of implementing the IFRs and CFR rights) are Maharashtra, Odisha, Kerala and Gujarat (only in Scheduled V areas).

• The present report finds that the reasons for poor implementation of FRA are: a. Absence of political will, both at the national and state levels; b. Lack of effort to build capacity in the Central nodal agency, the Ministry of Tribal Affairs; c. Opposition by Ministry of Environment Forest and Climate Change (MoEFCC) and forest bureaucracy, including by passing the Compensatory Afforestation Fund Act, 2016 (CAFA), support to Joint Forest Management (JFM) and Village Forest Rules (VFRs), constant opposition at the ground level; d. Poor investment in implementation and its monitoring by both Central and state governments.

• The Ministry of Environment Forest and Climate Change (MoEFCC) issued guidelines in August 2015 to lease 40 percent of degraded forests in the country to private companies for afforestation. These guidelines are in complete violation of FRA and completely disregard the fact that most of these forests are either already recognized CFRs, are in the process of being claimed as CFRs, or are potential CFRs to be claimed in future. Maharashtra, Madhya Pradesh and Chhattisgarh have reportedly already initiated reaching arrangements based on guidelines with the industry.

• The recently enacted Compensatory Afforestation Fund Act, 2016 (CAF Act, 2016) has paved the way for releasing around Rs 42,000 crore to the states for carrying out compensatory afforestation, primarily in lieu of diversion of customary forests of STs and OTFDs. The state institutions set up under the CAF Act are dominated by forest bureaucracy with no representation of forest dwellers. The CAF Act also provides incentives to displace forest dwellers from protected areas by making a specific provision for funding relocation. Forest dwellers and Scheduled Tribes (STs) have widely opposed the CAF Act for not requiring consent of the gram sabhas to use their traditional lands and forests for compensatory afforestation.

• Powerful vested interests within bureaucracy and political class have pushed Village Forest Rules (VFRs) as a core strategy to maintain their control over forests, and to forestall transfer of jurisdiction of these forests to gram sabhas. VFRs place the control over management and governance of forests in the hands of committees constituted and controlled by the forest department including in areas where CFRs are to be claimed, have been claimed and titles have been received. Despite strong opposition by gram sabhas, Civil Society Organizations (CSOs) and Ministry of Tribal Affairs (MoTA), the VFRs have been notified but are not applicable in Fifth Schedule areas.

• Joint Forest Management (JFM) is another major instrument forest bureaucracy uses to retain its control over forests and forestall forest jurisdiction transfer to gram sabhas under FRA.

• The Forest development corporations (FDCs), set up since the 1970s, hold about 1.28 million ha of forest land leased to them by the Forest Department. Operation of these leases and granting of new leases to FDCs is causing conflict with CFR rights.

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According to the [inside]Monthly Update on Status of Implementation of the Scheduled Tribes and Other Traditional Forest Dweller (Recognition of Forest Rights) Act, 2006 (released on 10 August, 2016)[/inside], Ministry of Tribal Affairs, please click here to access:
 
• At the national level (based on aggregation of data for 19 states) the number of title claims rejected as a proportion of the total number of claims that were disposed off has been 53.5 percent, as on 30 June, 2016.

• The total number of claims rejected as a proportion of the total number of claims disposed off varies greatly from one state to another. For example, in Bihar this proportion stands at 94.9 percent whereas for Chhattisgarh the same has been 59 percent, as on 30 June 2016.

• At the national-level (based on aggregation of data for 19 states) 40.72 lakh number of title claims by individuals and 1.1 lakh number of title claims by communities were filed as on 30 June, 2016.

• The number of individual claims for titles filed ranges from 182 in Uttarakhand to 8.6 lakh in Chhattisgarh, as on 30 June, 2016. Similarly, the number of community claims for titles ranges from zero in Bihar, Chhattisgarh & Uttarakhand to 41,235 in Madhya Pradesh, during the same period.    

• The total number of claims disposed off as a proportion of total number of claims received ranges from 0.6 percent in Uttarakhand to 100 percent in Chhattisgarh, as on 30 June 2016.

• Out of the 1.02 crore acres of total forest land for which titles have been distributed in 17 major states altogether, nearly 56.6 lakh acres (i.e. 55.5 percent) was meant for individual title claims and 45.5 lakh (i.e. 44.5 percent) acres was meant for community title claims, as on 30 June, 2016.

• The number of titles distributed as a proportion of the number of claims received has been 40.2 percent as on 30 June 2016. The percentage of titles distributed over number of claims received varies from zero in Uttarakhand to 65.5 percent in Kerala.

• The total number of titles (individual + community) distributed upto 30 June, 2016 varies from zero in Uttarakhand to 3.8 lakh in Odisha.

• Among the 10 states affected by Left Wing Extremism (LWE), the number of claims rejected as a proportion of the total number of claims disposed off has been the highest in Bihar (94.9 percent). The percentage of claims disposed off with respect to total number of claims received has been the highest in Chhattisgarh (100 percent) and lowest in Bihar (53.9 percent).    


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According to the [inside]Report of the High Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities of India (chaired by Prof. Virginius Xaxa), May 2014[/inside], Ministry of Tribal Affairs (Please click here to access):

• Of the nine States considered to be seriously affected by Left Wing Extremism (LWE), six are States with Scheduled districts. Among the 83 LWE-affected districts, 42 districts have Scheduled Areas*. These regions are marked by the following features: (1) serious neglect and deprivation, widespread poverty and poor health and educational status; (2) exploitation and oppression by traders and money lenders, on the one hand, and absence of an effective and sensitive civil administration, on the other; (3) large-scale displacement of tribal people for development projects; (4) occurrence of all of the above despite the special Constitutional and legal provisions for the tribal people (in the form of the Fifth Schedule, laws to prevent alienation of tribal land and restoration of alienated lands, and in recent years, progressive legislations, such as Panchayats (Extension to the Scheduled Areas) Act-PESA, 1996 and Forest Rights Act-FRA, 2006).

• Almost 60% of the forest cover of the country is found in tribal areas. Of the 58 districts, wherein the forest cover is greater than 67%, 51 districts are tribal districts.

• With regard to mineral resources, three States with substantial tribal populations – Odisha, Chhattisgarh and Jharkhand - have considerable mineral reserves. These three States alone account for 70% of India’s coal reserves, 80% of its high-grade iron ore, 60% of its bauxite and almost 100% of its chromite reserves.

• According to a Centre for Science and Environment study entitled: Rich Lands, Poor People: Is ‘Sustainable Mining’ Possible? (2008), about half of the top mineral-producing districts are tribal districts – and these are also districts with forest cover of 28% which is larger than the national average of 20.9%.

• It is estimated that dams are the biggest causes of displacement in the country, although actual figures regarding the number of people displaced range from 20 to 50 million. However, it is generally agreed that about 40% of those displaced belong to the Scheduled Tribes (STs). Given that the STs constitute about eight per cent of the country’s population, they are clearly disproportionately represented in the number of displaced persons.

• There is dearth of data of the displaced persons (DPs) and project-affected persons (PAPs), and official figures, wherever available, underestimate the number of DPs/PAPs. Of the estimated 60 million DPs/PAPs, about 40% are tribal people, 20% are Scheduled Caste and 20% belong to other social groups, like OBCs. Based on available government records and estimates, researchers have estimated that people have been displaced from 25 million hectares, including 7 million hectares of forests and 6 million hectares of other CPRs. It is also estimated that only 25% of all DPs have been resettled and only 21.16% tribal DPs have been resettled, with a backlog of 79%. Further, a distinction must be made between resettlement, which is a onetime process, and comprehensive rehabilitation, which is a longer process for socio-economic reconstitution of DPs/PAPs.

• The new legislation ‘The Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013’, does not consider the backlog of DPs/PAPs.

• Researchers suggest that around 25% of India’s tribals become displaced persons (DP) or project-affected persons (PAP) at least once, because their regions are rich in natural resource. In absence of official data the Planning Commission report quotes the estimate 60 million DPs/PAPs arrived at by researchers. The Expert Group on Prevention of Alienation of Tribal Land and its Restoration set up by the Government of India estimates that, of the total displaced due to development projects, 47 per cent were tribal population.

• Based on the data provided by Annual Report 2007-08 of Department of Land Resources, it can be seen that 5.06 lakh cases of tribal land alienation had been filed, which covered land area of 9.02 lakh acres, out of which 2.25 lakh cases, were decided in favour of tribals with an area 5 lakh acres land. The total number of cases rejected by the Courts on various grounds are 1.99 lakh, covering an area of 4.11 lakh acres. The high proportion of cases rejected is a cause of concern and could be due to loopholes in law and apathy, or connivance of State machinery.

• Based on the data provided by Annual Report 2007-08 of Department of Land Resources, it can be seen that Odisha has the highest number of filed cases on tribal land alienation in the court, which is around 1.05 lakh. The performance of Madhya Pradesh is dismal, as no case of disposal in favour of the tribals has been reported. In Gujarat, there is a huge gap between the number of cases (19,322) decided in favour of restoration and the number of cases (376) in which land was actually restored.

• Based on the Forest Rights Act claims status (data provided by Ministry of Tribal Affairs) as of 31 January 2014, it could be seen that there is generally a gap between the land claimed and the actual extent of the titles issued to the claimant. Claims under FRA are often rejected due to absence of ST community certificates. The Other Traditional Forest Dwellers (OTFD) claims have largely not been entertained due to lack of evidence. OTFD’s have mainly been discouraged from filing claims and most of their claims have been rejected at the Gram Sabha level itself or not accepted by the Forest Rights Committee (FRC). Claims have also been rejected due to inability to prove plot cultivation for seventy five years prior to 13th December 2005. There are reports of claims being rejected on the ground that the claimed land is ‘disputed’.

• An analysis of the NSSO data for the 49th round (Jan- June 1993) and 64th round (July 2007- June 2008) shows that the proportion of migrant households among ST in rural areas decreased between 1993 and 2007-08, but the trend was the opposite in urban areas. The NSSO 64th round shows that in urban areas, the proportion of ST migrant households was higher than the proportion of migrant households of other social groups.

• The Government of India, in its Draft National Tribal Policy, 2006 records 698 Scheduled Tribes in India. As per the Census of India 2011, the number of individual groups notified as STs is 705.

• Over 80% of STs work in the primary sector against 53% of the general population, primarily as cultivators. However, the number of STs who were cultivators, declined from over 68% to 45% in 2001 whereas the number of tribal agricultural labourers increased from about 20% to 37%, demonstrating increasing landlessness among tribals. This trend has intensified, as can be seen in data from the 2011 Census.

• It is estimated that, in the last decade, about 3.5 million tribal people are leaving agriculture and agriculture-related activities to enter the informal labour market.

• The sex ratio among the STs is 991 females to every 1000 males in rural areas and 980 females to every 1000 males in urban areas (during Census 2011), the average sex ratio being 990.

• Between 1991 and 2001, while the decadal growth rate of the general population was recorded at 22.66, the ST population growth rate was 24.45. Similarly, between 2001 and 2011, when the general population growth rate was 17.64, the growth rate of ST population in the corresponding period was 23.66. On the whole, the ST population within the total population of India has increased from 8.2% in 2001 to 8.6% in 2011.

• In many States, the STs as a proportion of the population have remained fairly constant between the 2001 and 2011 censuses. However, States/Union Territories such as Andaman and Nicobar Islands, Chhattisgarh, Daman and Diu and Nagaland have recorded small decreases in the relative proportion of STs in the population between 2001 and 2011 (upto about 3% decrease in Nagaland).

• Odisha has the largest number of notified STs (62) followed by Karnataka (50), Maharashtra (45), Madhya Pradesh (43) and Chhattisgarh (42).

• Among the South Indian States (without any Scheduled Areas), Karnataka has the largest number of STs (50) followed by Tamil Nadu (36) and Kerala (36).

• Among the States and Union Territories, Lakshadweep ranks top with the highest proportion of ST population (within the state) of 94.8%, followed by Mizoram (94.4%), Nagaland (86.5%), Meghalaya (86.1%), and Arunachal Pradesh (68.8%). Uttar Pradesh stands last with the lowest proportion of ST population of 0.56%, followed by Tamil Nadu (1.1%), Bihar (1.28%), Kerala (1.45%), and Uttarakhand (2.89%).

• Regarding the distribution of ST population by States, Madhya Pradesh stands first with 14.7%, followed by Maharashtra (10.1%), Odisha (9.2%), Rajasthan (8.9%), Gujarat (8.6%), Jharkhand (8.3%), Chhattisgarh (7.5%), Andhra Pradesh (5.7%), West Bengal (5.1%), Karnataka (4.1%), Assam (3.7%), Meghalaya (2.5%), and the remaining States represent 11.6% of the tribal population. Proportion of ST population in the rural areas is 11.3% and in urban areas is 2.8%. More than half the ST population is concentrated in the States of Madhya Pradesh, Chhattisgarh, Maharashtra, Odisha, Jharkhand and Gujarat.

• Karnataka and West Bengal, neither of which have any Scheduled Areas within its State boundaries have 4.1% and 5.1% of the country’s ST population, respectively.

• There are 90 districts in India, where the tribal population is more than 50% of the total population. In 62 districts, the tribal population is more than 25%, but less than 50% of the total population. STs reside in as many as 543 districts in India.

• Particularly Vulnerable Tribal Groups (PVTGs), currently including 75 tribal groups, have been identified as such on the basis of the following criteria: 1) forest-dependent livelihoods, 2) pre-agricultural level of existence, 3) stagnant or declining population, 4) low literacy rates and 5) a subsistence-based economy.

• The majority of the PVTG population, as identified in Census 2001, lives in the six States of Maharashtra, Madhya Pradesh, Chhattisgarh, Jharkhand, Odisha, Andhra Pradesh and Tamil Nadu.

• Of the States with PVTGs, Kerala, Karnataka, Tamil Nadu, Uttar Pradesh and West Bengal do not have Scheduled Areas, thereby increasing the vulnerability of these tribes, who lack the protections and rights offered by the Fifth Schedule and the Provisions of Panchayat (Extension to Scheduled Areas) Act, 1996.

• The participation of STs in MGNREGA has been decreasing since its inception in 2006. The person-days of employment generated under MGNREGA for STs for the year 2006-2007 was 36%, and it came down to 17.19% in the year 2013-14 (16% till 13 December).

• As per a study by Arvind Panagariya and Vishal More (2013), the percentage of population below the Tendulkar poverty line in rural areas was 50.3% in 1993-94, 41.8% in 2004-05, 33.3% in 2009-10 and 25.4% in 2011-12 whereas the percentage of ST population below the Tendulkar poverty line in rural areas was 65.9% in 1993-94, 62.3% in 2004-05, 47.4% in 2009-10 and 45.3% in 2011-12. The percentage of forward caste population below the Tendulkar poverty line in rural areas was 44.0% in 1993-94, 27.1% in 2004-05, 21.0% in 2009-10 and 15.5% in 2011-12.

• The study by Arvind Panagariya and Vishal More (2013) shows that the percentage of population below the Tendulkar poverty line in urban areas was 31.9% in 1993-94, 25.7% in 2004-05, 20.9% in 2009-10 and 13.7% in 2011-12 whereas the percentage of ST population below the Tendulkar poverty line in urban areas was 41.1% in 1993-94, 35.5% in 2004-05, 30.4% in 2009-10 and 24.1% in 2011-12. The percentage of forward caste population below the Tendulkar poverty line in urban areas was 28.2% in 1993-94, 16.1% in 2004-05, 12.4% in 2009-10 and 8.1% in 2011-12.

• The study by Arvind Panagariya and Vishal More (2013) shows that the percentage of population below the Tendulkar poverty line nationally was 45.7% in 1993-94, 37.7% in 2004-05, 29.9% in 2009-10 and 22.0% in 2011-12 while the percentage of ST population below the Tendulkar poverty line nationally was 63.7% in 1993-94, 60.0% in 2004-05, 45.6% in 2009-10 and 43.0% in 2011-12. The percentage of forward caste population below the Tendulkar poverty line nationally was 39.5% in 1993-94, 23.0% in 2004-05, 17.6% in 2009-10 and 12.5% in 2011-12.

• It can be seen from provisional data provided by Educational Statistics at a Glance-2012, Ministry of Human Resources Development that the drop out rates among STs have been higher for both boys and girls from Class I to Class X during 2008-09 to 2010-11. Dropout rate is the percentage of students who drop out from a given grade or cycle or level of education in a given school year.

• According to the National Monitoring Committee for Education of Scheduled Castes, Scheduled Tribes and Persons with Disabilities (MHRD 2012), the percentage of out-of-school children (age group 6-14 years) among STs was 5.2%, which was higher than the same among total population (4.2%) during 2009.

• The average expenditure on education for a ST student was Rs. 453/- whereas for a general student was Rs. 1008/-, as per the NSSO 66th Round.

• As per the NSSO 68th Round, nearly 65.7% STs are engaged in primary sector, 19.8% in secondary sector and 14.5% in tertiary sector. However, among non-STs, 43% are engaged in primary sector, 27.6% in secondary sector and 29.4% in tertiary sector.

• Based on the surveys conducted by National Nutrition Monitoring Bureau (NNMB), it can be seen that the average intake of all nutrients among ST population, barring thiamine, niacin and vitamin C declined over the period 1998-99 to 2007-08. The intake of most of the nutrients declined in Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra, Orissa and West Bengal during the same period.

• Though, the overall prevalence of underweight, stunting and wasting (WHO standards) among 1-5 year tribal children was higher (52%, 55% and 22% versus 43%, 49% and 19% respectively), compared to their rural counterparts, but was slightly lower than the previous survey carried out in 1998-99 (57%, 58% and 23% respectively).

• At the national level, only 10.7% of ST families have tap water available with them whereas 28.5% non-ST households have the same as per Census 2011.

• At the national level, only 7.9% of ST families have tap water from treated source available with them whereas 23.3% non-ST households have the same as per Census 2011.

• At the all-India level, only 17.4% of ST households have access to improved sanitary facilities as compared with 44.3% among non-ST households as per Census 2011.

• Nationally, 74.7% ST households practice open defecation whereas the figure for the same among non-ST households is 47.2% as per Census 2011.

• Only 9.5% ST households have access to clean cooking fuel (includes PNG/LPG, electricity and biogas) whereas 31.1% non-ST households have access to the same in India as per Census 2011.

• Nearly 61.7% ST households have electricity as main source of lighting whereas 71.3% general households have the same as per Census 2011.

• As per the Rural Health Statistics (2012) provided by Ministry of Health and Family Welfare, there is a huge shortfall of physicians, pediatricians, or any other specialist at community health centers (CHCs) and doctors at primary health centers (PHCs) in the tribal areas. Odisha, Madhya Pradesh, Jharkhand, West Bengal, Gujarat, Rajasthan, Andhra Pradesh, Bihar and Tamil Nadu show huge shortfall in terms of availability of physicians. On the other hand, Maharashtra, Kerala, Andaman and Nicobar Islands, Sikkim and Manipur shows large shortfall in availability of pediatrician. Shortfall of any kind of specialist is also high in the states like Andhra Pradesh, Jammu Kashmir, Jharkhand, Kerala, Maharashtra, Meghalaya and Nagaland and Rajasthan.

• As per the Rural Health Statistics (2012), doctors’ shortfall at PHCs level in tribal areas is huge in the states like Assam, Chhattisgarh, Gujarat, Madhya Pradesh, West Bengal and Orissa.

 

The key recommendation of the High Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities of India (chaired by Prof. Virginius Xaxa), May 2014 are as follows:

(Source: Report on India’s tribal population kept under wraps -Mukta Patil, Down to Earth, 29 December, 2014)

On legal and administrative framework

* Laws and policies enacted by Parliament to be made applicable in the 5th and 6th Schedule areas only through discretion of the governor, who must be advised by the Tribes Advisory Council on applicability or non-applicability of said policy.

* Restructure the Tribes Advisory Council (TAC). One half of the council should constitute of elected state legislature members while the other half must be chairpersons of the district panchayat bodies. The TAC must be empowered and the scope of their ambit must be widened to include constitutional provisions, laws, policies, and administrative matters pertaining to Scheduled Tribes.

* The areas where tribes are sizeable in number in villages should be brought under scheduled areas, especially in states like West Bengal, Kerala, Tamil Nadu, Karnataka and Goa.

* Autonomous Councils must be covered under State Finance Commission, and not left at the arbitrary mercy of the State government for funding.

* Traditional political institutions must be formally recognised by the State, and tribal women should have one-third reservation in all ADCs and other political institutions.

On livelihoods and employment status

* Establish agro-based training institutions and labour-intensive processing industries in tribal regions. Tribal farmers should be motivated to undertake organic farming and eco-forestry. Priority be given to water management and micro watershed development programmes.

* Prevent tribal land alienation and restore alienated land to owners as per the provisions of PESA (Panchayats Extension to Scheduled Areas Act) and confirmatory Acts by various States. National and State level monitoring agencies be set up to prevent alienation of tribal land.

* Ensure participation of tribals in protection and management of forests. The newly acquired land under FRA (Forest Rights Act, 2006) should be utilised for forestry rather than food grain cultivation.

* Extend credit and marketing facilities to the tribals. The credit policy must be on par with other social groups.

On land alienation, displacement and enforced migration

* State must try to minimise displacement, and follow a rights based approach to rehabilitate them. Displacement should be democratic and rights of tribal communities to refuse the acquisition of their land should be recognised.

* Empower gram sabhas to prevent land alienation (through the Samantha judgement and PESA Act) and form Registered Scheduled Tribe Co-operative Societies to take up mining activities in Scheduled Areas.

* Make legal provisions to return unutilised tribal land for its acquired purpose or to use it to resettle displaced tribals.

* Rehabilitation be treated as a continuous process to be monitored until the alternative livelihood becomes economically viable. Tribals should be given a stake in assets and economic activities being created on their acquired land.

* Rectification to include Common Property Resources such as government land and panchayat land under the Forest Rights Act. Community land should not be recorded as government land in land surveys.

* Empower gram sabhas plenary powers to fight cases of tribal land alienation collectively. The gram sabha should also be legally empowered to restore alienated land on detection, pending legal justice.

On legal and Constitutional issues

* Implement community forest rights and recognise various community forest rights and rights of vulnerable communities such as particularly vulnerable tribal groups (PVTGs) and pastoralist communities.

* Remove contradictory processes like diversion of forest land that hampers implementation of the protective provisions under the FRA.

* Form a Judicial Commission to investigate cases filed against tribals and their supporters to allay concerns about misuse of criminal law by the state.

* Ensure that PESA is internalised into administrative practice. Government officials including forest departments continue to deny access to tribals to that which is their right.

*Note: Please click here to access the definition of Scheduled Areas.  

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[inside]FAQ on Forest Rights Act (2006)[/inside]

Frequently Asked Questions on the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), prepared in December, 2012, http://tribal.nic.in/writereaddata/mainlinkFile/File1539.pdf:

The enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) is an important watershed in the history of tribal empowerment in India especially relating to tenure security on forests and forest land. The Act became operational through notification of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules on January 1, 2008 which marked a historic journey to recognize and vest Forest Rights to the marginalized and vulnerable who are dependent on forests for their sustenance and their existence.

Over a period of last four years of implementation of the Act, some problems impeding the implementation of the Act in its letter and spirit had come to the notice of the Ministry of Tribal Affairs. Some of the major concerns regarding implementation of this Act related to high rate of rejection of claims , little progress in the recognition of community rights and habitat rights of PTGs , convening of Gram Sabha meetings at the Panchayat level, insistence of particular form of evidence, claimants not being informed about rejection of claims and inadequate awareness about the provisions of the Act and the Rules, etc. Based on this experience, the Ministry of Tribal Affairs issued detailed Guidelines to the States in July 2012 and notified amendment to the FRA Rules in September 2012 in order to develop further clarity on the interpretation of the Act and to streamline its implementation.

The Ministry in collaboration with UNDP organized Five Regional Consultations covering 22 states across India to share the recent amendments to the Rules, understand the operational challenges and to collectively identify the way forward on effective implementation of the Act including preparation of Action Plans for time-bound implementation of the Act. The Regional Consultations provided a platform where Tribal Welfare, Panchayati Raj, Forest and Revenue Departments shared their views and sought clarifications on wide range of issues.

This Booklet seeks to addresses some of the questions raised during the Regional Consultations related to the process of recognition of rights, evidence requirements, ownership over minor forest produce, rights over community forest resource , protection against eviction, definition of OTFDs, convening of Gram Sabha at hamlet/habitation level, recognition of habitat rights of PTGs etc. It is an attempt to consolidate the responses given in the workshop by the Ministry of Tribal Affairs. This Booklet can be used as a reference document for consultations, workshops, and effective implementation of FRA.
 
1.    Section 3(1)(c) of FRA confers ownership rights over minor forest produces (MFP) to forest dwelling STs and Other Traditional Forest Dwellers. Can ownership rights over Tendu/Kendu, Bamboo which are nationalised forest produce under the State forest laws be conferred under FRA?

•    Yes. The recognition and vesting of ownership rights over all minor forest produces (MFP) including bamboo and tendu/kendu are to be conferred to forest dwelling STs and Other Traditional Forest Dwellers as and when the claim for such rights is made.

•    Section 2(i) of FRA clearly defines the term “minor forest produce” which include bamboo and tendu/kendu.

2.    Whether the shift of ownership of MFPs from the State in case of certain nationalised MFPs, like, tendu patta, would not lead to exploitation of MFP gatherers by the private traders?

•    The shift of ownership to right holders does not necessitate withdrawal of the State agencies from MFP trade. It is advised that the State agencies should continue to extend their support system to the MFP gatherers by way of purchasing the produces to provide minimum support price and safeguard against any potential exploitative cartel of buyers. A parallel may be drawn in the manner with process followed for rice and wheat.

•    MFP gatherers may be organized through formation of cooperatives/federations or producer companies to enhance bargaining power vis-à-vis   MFP buyers.

•    Abolition of monopoly of State Agencies in the trade of nationalized MFPs will in fact strengthen institutions engaged in trade of MFPs and making them more competitive and this will reduce exploitation of the rights holders under the watchful eye of the State.

For more, please click here

 

The following links and websites would benefit reporters writing on the issue of Forest Rights Act (2006):

 

Ministry of Environment and Forests

http://www.moef.nic.in/modules/rules-and-regulations/forest-conservation/

 

Ministry of Tribal Affairs


http://tribal.nic.in/writereaddata/mainlinkFile/File1434.pdf

http://tribal.nic.in/index1.asp?linkid=376&langid=1

 

Websites on Forest Rights Act:

 

http://fra.org.in/new/

http://www.forestrightsact.com/

 

 

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According to the Report entitled: [inside]PESA, Left-Wing Extremism and Governance: Concerns and Challenges in India’s Tribal Districts[/inside] 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/PESAchapter.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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 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.

 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.

 The cut-off date, too, has been fixed as December 13, 2005 as against October 31, 1980 in the original Bill.

 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,
http://www.aitpn.org/Issues/II-09-06-Forest.pdf


[inside]The history of Forest Dwellers Act[/inside]

• 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.


Salient features of Land Acquisition (Amendment) Act, 2007

• 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,
http://www.prsindia.org/uploads/media/Land%20Acquisition/bill167_20080311167_Legislative_Brief__Land_Acquisition_Bill.pdf

$ Central Government ammends Land Acquisition Act,
http://www.projectstoday.com/News/NewsDetails.aspx?nid=25435 

* Pranab Bardhan, The real issues behind land acquisition,
http://www.hindu.com/2009/08/01/stories/2009080155420900.htm
 

 

According to [inside]PESA, the Forest Rights Act, and Tribal Rights in India[/inside] by Sanjoy Patnaik (2007), http://www.recoftc.org/site/fileadmin/docs/Events/RRI_Conference/Proceedings/Paper_18_Patnaik.pdf:

• 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.