WHAT HAPPENED POST-INDEPENDENCE?
Displacement
Post Independence, India, went on a binge of large projects – Dams, Hydroelectric projects, Coal Mines, Industry set up in backward areas, Sanctuaries and national parks. You, me and probably everyone except the tribals have benefitted from these projects. Close to 20 million people (2% of india’s population have been displaced till the 90’s due to these large projects. 50% of those displaced happen to be tribals. Less than 20% of those displaced were rehabilitated. This statistic tells us more stories than one! Some 90 per cent of India’s coal mines, 72 per cent of the forest and other natural resources, and 80 per cent of India’s minerals, are in Adivasi lands. Over 3,000 hydroelectric dams are also located in these areas. Therefore, the primary resources for India’s industrialization and urbanization lie in Adivasi areas.This statistic tells us more stories than one! Every time you switch on the light or use water or take a vacation to watch wildlife – remember many tribal lives have been sacrificed.
Forest Act
If you thought, we would learn to manage our forests better, we were as good or even better than our colonial masters, we not only continued with what they did, but had full control on the minor forest produce trade as well.
Wildlife protection Act 1972
It restricted the rights of Adivasis in the wildlife sanctuaries and removed their rights in national parks.
1894 Land Acquisition Act
An instrument of British colonialism – ais still being used to legally take over Adivasi territories
The Coal Bearing Area Act, 1957,
It provides sweeping powers for land acquisition for ‘national interest’ or ‘public purpose’. While Adivasis may be displaced by such mining, for example, they are not entitled to any of the profits.
Tendu - No other issue unites Madhya Pradesh, and its politicians, as the Rs 2,000-crore tendu leaf-bidi trade. The reason is simple. The business involves 37 per cent of the State's Scheduled Tribe/Scheduled Caste population, 35 of its 45 districts, the tendu cooperative movement and a direct vote bank of 20 lakh tribal families. Besides, the State accounts for 65 per cent of the entire bidi leaf collection in the country.
If the brits called you a criminal, your own people will call you a habitual offender
After Independence, the government, realising that the Criminal Tribes Act was a shameful colonial legacy, repealed the Act in 1952. Tribes that were ‘notified’ became ‘denotified’. In a retrograde step, in 1959, new laws in the form of the Habitual Offenders Act were introduced in various states. Even whilst eschewing branding people of certain communities ‘born criminals’, these Acts retained many of the provisions of the Criminal Tribes Act such as registration, restrictions on movement, and incarceration in ‘corrective settlements’ earmarked for ‘habitual offenders’. The bias against nomads lingered, as is apparent in the way the Acts enjoined the government to look at whether a person’s occupation was “conducive to an honest and settled way of life… not merely a pretence for the purpose of facilitating commission of offences,” while exercising its power to restrict the movement of the person. The police routinely used the Habitual Offenders Act against members of nomadic and denotified communities.
In February 2000, the National Human Rights Commission recommended that the Habitual Offenders Act be repealed. More recently, in March 2007, the United Nations Committee on the Elimination of Racial Discrimination stated: “The Committee is concerned that the so-called denotified and nomadic tribes, which were listed for their alleged ‘criminal tendencies’ under the former Criminal Tribes Act (1871), continue to be stigmatised under the Habitual Offenders Act… The Committee recommends that the State party repeal the Habitual Offenders Act and effectively rehabilitate the denotified and nomadic tribes concerned.” The offensive Act has not been repealed till date.
Economic Reforms
With Economic reforms in the early 90s, came the infusion of foreign capital – on the search for high return investments – what is a better bet than mining for all those materials that India had in the states of Orissa, Jharkhand and Chhattisgarh. From Posco in Orissa, Mittal in Jharkhand and the Tatas in Chhattisgarh, there are a number of multinationals which have lined up the money and waiting to get the relevant permissions to invest
5th Schedule, PESA, 2006 Forest Act
There are three three steps which have prevented easy acquisition, which are the 5th Schedule, PESA, 2006 Forest Act.
Article 244 (i) of the Indian Constitution provides for a Fifth Schedule, which can be applied to any state other than those in North-East India. The Governors of the concerned states have been given extensive powers, and may prevent or amend any law enacted by Parliament or the state assembly that could harm the Adivasis’ interests. Furthermore, the Governor can inform state government’s administration of the area, by ascertaining the views of a Tribal Advisory Council (TAC). A TAC is to be constituted in each state having scheduled areas, and should consist of no more than 20 members, of whom up to 15 should be the representatives of the STs in the state’s legislative assembly. Eight states with scheduled areas, plus Tamil Nadu and West Bengal, have established TACs. The Governor is also empowered to frame new laws and make regulations in consultation with the TACs, in particular to prohibit or restrict the transfer of land by or among members of STs, and to regulate the allotment of land to STs.
However, all of these laws and regulations must be submitted to the President for agreement. This makes the procedure very circuitous and centralized. Furthermore, if the Governor chooses not to take the TAC’s advice, the TAC can do little. Many feel that the Fifth Schedule is vague and inadequate, and that it has not been used constructively. In many states, the TACs hardly meet. Governors could have brought appropriate modifications to Acts like the 1927 Indian Forest Act, the Indian Penal Code and the Criminal Procedure Code, and other mining and land acquisi-tion laws for the benefit of Adivasis, extending these to the scheduled areas; but this has not happened. Instead, all laws have been routinely extended to the scheduled areas. All Governors of states with scheduled areas are required to make an annual report to the President regarding their administration. In the case of Bihar, Gujarat, Himachal Pradesh, Maharashtra, Orissa and Rajasthan, no report have been received by the President since 1992, in Andhra Pradesh since 1986 and in Madhya Pradesh – which has the highest ST population – since 1990. Some Adivasi areas were omitted by the President while scheduling. In 1976, Parliament amended the Fifth Schedule to enable the President to increase the scheduled areas. Central government directed the state governments to send proposals for scheduling. However, Adivasi areas in Karnataka, Kerala, Tamil Nadu, Uttar Pradesh and West Bengal remain unscheduled, and the eight states with scheduled areas – Andhra Pradesh, Bihar, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa and Rajasthan – have still not been fully covered. Many believe that the Fifth Schedule has failed.
The law in point here is the Provision of Panchayat Extension to Scheduled Areas Act (PESA).
The Constitution of India, through its 73rd Amendment, paved the way for a separate and progressive legal and administrative regime for tribal areas to usher in genuine tribal self-rule. The framework was laid down by PESA, a law enacted in pursuance of the constitutional mandate in 1996. All ten states with tribal areas were to adopt this law within one year. Perhaps the most progressive law passed since Independence, the PESA, was to enable the gram sabha, ie, the collectivity of village adults, and gram panchayat to take control of their destinies. It empowered villages to protect community resources, control social sector functionaries, own minor forest produce, manage water bodies, give recommendations for mining leases, be consulted for land acquisition, enforce prohibition, identify beneficiaries for poverty alleviation and other government programmes and have a decisive say in all development projects in the villages.
What does the Forest Rights Act do?
The Act basically does two things:
• Grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the forest laws.
• Makes a beginning towards giving communities and the public a voice in forest and wildlife conservation.
Who is a forest dweller under this law, and who gets rights?
There are two stages to be eligible under this Act. First, everyone has to satisfy two conditions:
1. Primarily residing in forests or forest lands;
2. Depends on forests and forest land for a livelihood (namely "bona fide livelihood needs")
Second, you have to prove:
• That the above conditions have been true for 75 years, in which case you are an Other Traditional Forest Dweller (s. 2(o));
OR
• That you are a member of a Scheduled Tribe (s. 2(c)); and
• That you are residing in the area where they are Scheduled (s. 4(1)).
In the latter case you are a Forest Dwelling Scheduled Tribe.
What kind of rights do forest dwellers get under this Act?
The law recognises three types of rights:
Land Rights
No one gets rights to any land that they have not been cultivating prior to December 13, 2005 (see section 4(3)) and that they are not cultivating right now. Those who are cultivating land but don't have document can claim up to 4 hectares, as long as they are cultivating the land themselves for a livelihood (section 3(1) (a) and 4(6)). Those who have a patta or a government lease, but whose land has been illegally taken by the Forest Department or whose land is the subject of a dispute between Forest and Revenue Departments, can claim those lands (see section 3(1)(f) and (g)).
There is no question of granting 4 hectares of land to every family. If I am cultivating half a hectare on December 13, 2005, I receive title to that half a hectare alone; and if I am cultivating nothing, I receive nothing. If I am cultivating more than 4 hectares without documents or a dispute, I receive title to only 4 hectares.
The land cannot be sold or transferred to anyone except by inheritance (see section 4(4)).
Use Rights
The law secondly provides for rights to use and/or collect the following:
a. Minor forest produce things like tendu patta, herbs, medicinal plants etc “that has been traditionally collected (see section 3(1) (c)). This does not include timber.
b. Grazing grounds and water bodies (sections 3
c. Traditional areas of use by nomadic or pastoralist communities i.e. communities that move with their herds, as opposed to practicing settled agriculture.
Right to Protect and Conserve
though the forest is supposed to belong to all of us, till date no one except the Forest Department had a right to protect it. If the Forest Department should decide to destroy it, or to hand it over to someone who would, stopping them was a criminal offence.
For the first time, this law also gives the community the right to protect and manage the forest. Section 3(1) (i) provide a right and a power to conserve community forest resources, while section 5 gives the community a general power to protect wildlife, forests, etc. This is vital for the thousands of village communities who are protecting their forests and wildlife against threats from forest mafias, industries and land grabbers, most of whom operate in connivance with the Forest Department.
How are rights recognised?
Section 6 of the Act provides a transparent three step procedure for deciding on who gets rights. First, the gram sabha (full village assembly, NOT the gram panchayat) makes a recommendation - i.e who has been cultivating land for how long, which minor forest produce is collected, etc. The gram sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent. The gram sabha's recommendation goes through two stages of screening committees at the taluka and district levels. The district level committee makes the final decision (see section 6(6)). The Committees have six members - three government officers and three elected persons. At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees, and if they prove their case the right is denied (sections 6(2) and 6(4)). Finally, land recognised under this Act cannot be sold or transferred.
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