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Published: Fri, 02 Feb 2018
Law Forest Dwellers
FOREST DWELLERS’ RIGHTS UNDER THE FOREST LAWS: RECENT DEVELOPMENTS
Trees are friends of mankind and forests are necessary for the human existence either for the development or for providing place for habitation. In ancient times and as per some religious belief trees are worshipped and prayers are offered for up-keeps of the forests. Forests help in maintaining the ecological balance. They render the climate equable, add to the fertility, prevent soil erosion and promote perennial stream flow in rain-fed rivers. They shelter wild animals, preserve gene pools, maintain biodiversity, protect the tribal people and exhibit cultural diversity. Tribe in cultural anthropology is a type of human social organization based on small groups defined by tradition of common descent having political integration above family level and shared language, culture and ideology. In the ideal model of a tribe, members typically share a tribal name and a contiguous territory. They work together in such joint endeavor as trade, agriculture, house construction, and warfare and ceremonial activities. Tribes are usually composed of a number of smaller local communities. Modern anthropologists have replaced it with ethnic groups as they have common ancestry and language, shared cultural and historical tradition and an identifiable territory. Indian tribes constitute roughly 8% of the national population1 Central Indian states have 75% of the total tribes population. There are 573 communities recognized by the government as schedule Tribes. It has the largest population in the world but unfortunately, the most- exploited and disadvantaged community.
Besides these benefits from environmental and ecological standpoints, forests bring revenue to the state, supply raw material to industries and act as a source of fuel and fodder. But forests management always gives rise to conflicting view-points, for example, claims of development such as construction of dam or commissioning of an industry in a forests area would raise questions regarding the violation of the forests laws. The natural inhabitants are inflicted with label of encroachers. Outside intruders have, however, led in the forest areas to an issue of affecting the tribal communities and forest dwellers. In a society based on the rule of law, conflict of values is to be reconciled and priorities to be set. The problem relating to forests have been becoming an issue of major concern. Deforestation is affecting in many ways the ecological balance and life of the people depending upon forests. Government policies on forest reserves have affected tribal peoples profoundly. Wherever the state has chosen to exploit forests, it has seriously undermined the tribes’ way of life. Government efforts to reserve forests have precipitated armed resistance on the part of the tribal peoples involved. Intensive exploitation of forests has often meant allowing outsiders to cut large areas of trees while the original tribal inhabitants were restricted from cutting), and ultimately replacing mixed forests capable of sustaining tribal life with single-product plantations. Where forests are reserved, non-tribes have proved far more sophisticated than their forest counterparts at bribing the necessary local officials to secure effective though extralegal use of forestlands. The intensive cultivating and commercial interests that replaced the tribal way of life have destroyed the forests. Our failure in the implementation of the policy too has been dismal. In some studies conducted by some scholars it has been brought out very clearly. The forest department’s policy has varied from time to time from absolute protection to a callous attitude towards the tribal settlements as a necessary evil to be contained within strict limits.
India has to reconcile the apparent conflict between conservation development and the tribal rights. They continue to face acute insecurity on habitat and livelihood that tend to exclude them by default. Development is no doubt demand of the modern age but development should reconcile the eco-balance lest it should have adverse impact on the life and the existence of eco-system.
The tribes or the forest communities are the people whose existence depend on a close and ecologically sustainable relationships with the forest they inhabit and thus are the prime guardians of the forest as they have a symbiotic relationship with the forests. India has the largest population of the tribes in the world comprising about 8% of its population mostly present in the central part of the country (1991 census). At times and on there have been efforts to control and regulate the activities of the forest communities and the forest dwellers. It is, however, difficult to reconstruct the picture of these people before the British intervention. Such reconstruction has to be done from the writings of the colonial administrators themselves. There was little or no interference with the customary use of forest and forest produce. The early days of British rule were characterized by a total indifference to the needs of forest conservancy. The demands made by occupation for military purposes, teak export trade and the desire for more and more revenue by removing the forest and adding the land to the class of land paying revenue marks the change in the policy towards the forests. The history of Indian forestry is marked by building of railway network. The early years of railway expansion saw an unprecedented assault on the more accessible forests and caused considerable deforestation. The fast uncontrolled denudation of forest awoke the colonial administration to the fact that the forests are not inexhaustible. The need was felt to start an appropriate department and for its effective functioning the enactment of laws to curtail the previously exercised unlimited rights of the users. The beginning of the restricted rights affected not only the traditional practices of village and specially the tribal communities.
The first attempt by the colonial rulers at asserting the monopoly right over the forest was through the Indian Forest Act of 1865. Remaining in action for a period little over a decade the Act was replaced in 1878 by a more comprehensive piece of legislation. The provisions of this law ensured that the state could demarcate ‘valuable’ tracts of forest needed for the railway purposes and retain enough flexibility over the remaining extent of the forest land. The monopoly right of the State inculcated a new concept which sought to establish that the customary use of forest by the villagers was based not on ‘right’ but on ‘privilege’ and that the ‘privilege’ was exercised only at the mercy of the local rulers. Thus the rights of absolute ownership was held to be vested in the British rulers.
The denial of ‘right’ and the consequent loss of control over the natural resources evoked a sharp reaction from the forest communities. The legislations made a strict difference between “uncontrolled use” and “proprietary rights”. Such alienation of the forest based community from the forest appears to be analogues to what Marx talked about- that of primary producer after being separated from the means of production. Before the British intervention, the forest dwellers and more particularly, the advasis, “were freemen, owning the means of production”. The British Rule introduced notion of private property contrary to the experience of these communities. Another legislation, the Forest Act 1927 dealt with four types of forests, namely reserved forests, village forests, protected forests and private forests. The Act barred the accrual of any right other than the right vested at the time of notification under section 4. The Act placed the tribal people and other forest dwellers completely out side its ambit rendering these people devoid of any claim respecting the forests. After independence, the national forest policy of 1952 maintains the pre-colonial notion and affirms that the 1894 policy “constitutes the basis for the forest policy of India”. In the policy statement there is an explicit assertion of state monopoly right at the expense of the forest communities This exclusion is legitimised in the name of “the national interest” so as to ensure that the country as a whole is not deprived of a “national asset” by the mere accident of a village being situated close to a forest. The Forest Conservation Act, 1980 was enacted causing further a blow towards even the small benefits the dwellers were able to draw from the depleted forests became unattainable.
Although the 1952 Forest Policy on the other hand aimed at forest coverage of one-third of the total land area of the country due to various constraints this could not be attained. Rather extensive diversion of forest land has taken place for non-forest use. The natural occupants have been forcibly evicted from their natural places and surroundings. The genetic diversity has also been considerably affected by the destruction of flora and fauna. The Government has increasingly realized the great importance of forests in contributing to the ecological stability of the country. This necessitated re-examination of the Forest Policy and giving emphasis to the conservation and ecological aspects. India’s National Forest Policy declared in 1988 paid due attention to the problems of tribal people and intended to associate them in Forest Conservation and Development. But only the policy statements cannot help the tribes and forest dwellers to remain associated with their natural way of living unless formulated into the binding rules of conduct and their enforcement. The policy, however, does constitute a pathfinder in a right direction. The basic objectives that should govern the National Forest Policy 1988 – are the following:
- Maintenance of environmental stability through preservation and, where necessary, restoration of the ecological balance that has been adversely disturbed by serious depletion of the forests of the country.
- Conserving the natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, which represent the remarkable biological diversity and genetic resources of the country.
- Checking soil erosion and denudation in the catchment areas of rivers, lakes, reservoirs in the “interest of soil and water conservation, for mitigating floods and droughts and for the retardation of siltation of reservoirs.
- Checking the extension of sand-dunes in the desert areas of Rajasthan and along the coastal tracts.
- Increasing substantially the forest/tree cover in the country through massive afforestation and social forestry programmes, especially on all denuded, degraded and unproductive lands.
- Meeting the requirements of fuel-wood, fodder, minor forest produce and small timber of the rural and tribal populations.
- Increasing the productivity of forests to meet essential national needs.
- Encouraging efficient utilisation of forest produce and maximising substitution of wood.
- Creating a massive people’s movement with the involvement of women, for achieving these objectives and to minimise pressure on existing forests.
The principal aim of Forest Policy must be to ensure environmental stability and maintenance of ecological balance including atmospheric equilibrium that are vital for sustenance of all life forms, human, animal and plant. The derivation of direct economic benefit must be subordinated to this principal aim. The vesting, in individuals, particularly from the weaker sections (such as landless labour, small and marginal farmers, scheduled castes, tribals, women) of certain ownership rights over trees, could be considered, subject to appropriate regulations; beneficiaries would be entitled to usufruct and would in turn be responsible for their security and maintenance. The holders of customary rights and concessions in forest areas should be motivated to identify themselves with the protection and development of forests from which they derive benefits. The rights and concessions from forests should primarily be for the bonafide use of the communities living within and around forest areas, specially the tribals. The life of tribals and other poor living within and near forests revolves around forests. The rights and concessions enjoyed by them should be fully protected. Their domestic requirements of fuelwood, fodder, minor forest produce and construction timber should be the first charge on forest produce. These and substitute materials should be made available through conveniently located depots at reasonable prices.
Having regard to the symbiotic relationship between the tribal people and forests, a primary task of all agencies responsible for forest management, including the forest development corporations should be to associate the tribal people closely in the protection, regeneration and development of forests as well as to provide gainful employment to people living in and around the forest. While safeguarding the customary rights and interests of such people, forestry programmes the policy pays special attention to the following:
- One of the major causes for degradation of forest is illegal cutting and removal by contractors and their labour. In order to put, an end to this practice, contractors should be replaced by institutions such as tribal cooperatives, labour cooperatives, government corporations, etc. as early as possible;
- Protection, regeneration and optimum collection of minor forest produce along with institutional arrangements for the marketing of such produce;
- Development of forest villages on par with revenue villages;
- Family oriented schemes for improving the status of the tribal beneficiaries; and
Undertaking integrated are a development programmes to meet the needs of the tribal, economy in and around the forest areas, including the provision of alternative sources of domestic energy on a subsidised basis, to reduce pressure on the existing forest areas.
The Rio de Janeiro Summit 1992 also focused attention on the socio- economic conditions and significance of the involvement of the indigenous people in the process of conservation of the forests and non-legally binding authoritative Statement of Principles for a global consensus on management, conservation and sustainable development of all types of forests were adopted. One of the principles (Principle 5 ) states as;
- National forest policies should recognize and duly support the identity, culture and the rights of indigenous people, their communities and other communities and forest dwellers. Appropriate conditions should be promoted for these groups to enable them to have an economic stake in forest use, perform economic activities, and achieve and maintain cultural identity and social organization, as well as adequate levels of livelihood and well-being, through, inter alia, those land tenure arrangements which serve as incentives for the sustainable management of forests.
- The full participation of women in all aspects of the management, conservation and sustainable development of forests should be actively promoted.
Near the end of the last century another remarkable development respecting the tribes took place when Ministry of Tribal affairs was constituted in October, 1999 by bifurcation of the Social Justice and Empowerment with the objectives of more focused attention on integrated socio-economic Development of the most under privileged section of the Indian society, the scheduled tribe in a coordinated and planned manner.
The Judiciary has also taken due care in recognition of the rights of the tribes while disposing of cases respecting the forests. Fatesang Gimba v. Stateis a typical case that explains the impact that the reservation of forests has had upon tribal habitat. The tribal people were supplied bamboo at concessional rates to enable them to eke out a living by making articles for sale in the open market. The state forest officials, however, blocked the transport of articles on the ground of possible exploitation of forest in a reckless manner. The Court laid emphasis on the rights of tribals to depend on the forest, which was the only source of their livelihood. Their removal did not warrant action by forest officials. The court observed that once bamboo chips were transformed by human labour into a commercially new and distinct commodity the article ceased to be a produce of nature. Reiterating Fatesang, the Supreme Court held in Suresh Lohiya v. State of Maharashtra that confiscation, by forest officials, of bamboo mats made from tribal labour was not valid. The Court also emphasized that articles made out of bamboo, unlike bamboo, were not forest produce. The definition of ‘forest produce’ contemplates only such produce of trees having natural growth or products like flowers and fruits. Wherever the legislature wanted to include articles produced with the aid of human labour, the definition made a specific mention as in the case of ‘all products of mines or quarries.’
The forest department raised the plea that exclusion of bamboo products from the definition of forest produce, would frustrate the object of the law and give unscrupulous dealers an opportunity to denude the country of the forest wealth.
The Court observed that though bamboo as a whole was forest produce, if a product, commercially new and distinct, known to the business community as totally different is brought into existence by human labour, such an article and product would cease to be a forest produce. Bamboo mat is taken as a product distinct from bamboo in the commercial world, and therefore, it is not forest produce in the eye of the Act. The Court rejected the plea and rightly said that it could not legislate. What it can do in a matter at hand is only to iron out the creases and not to weave a new texture. One may not counter the plea, if accepted, would have done more harm than good, as it had the inherent danger of taking away the rights of tribal people to their habitat and livelihood.
The Narmada Project has become controversial. The develop mentalists claim it is going to the boon to the national development, the field irrigation and the power projects, environmentalists, however, do not agree. One thing is clear and it is the most disturbing aspect of the matter that policy of the resettlement of tribal and other ousters do not get priority causing a great hardships to the people of the area. The permanently displaced people have to fight for their survival and settlement. These people have to suffer twice without any fault, one for their displacement, and two, for the struggle for resettlement.
In Banwasi Seva Ashram v. State of U.P.thequestion before the Supreme Court related to the claim of the Adivasis living within Dudhi Robertsganj Tehsils in the District of Mirzapur in Uttar Pradesh to land and related rights. The State Government declared a part of these jungle lands in the two Tehsils as reserved forest as provided under section 20, Forest Act, 1927, and in regard to the other areas notification under section 4 of the Act was made and proceeding for final declaration of those areas also as reserved forests were undertaken. It is common knowledge that the adivasis and other backward people living within the jungle used the forest area as their habitat. They had raised several villages within these two Tehsils and for generations had been using the jungles around for collecting the requirements for their livelihood, fruits, vegetables, fodder, flower, timer, animals by way of sports and fuel wood. When a part of the jungle became reserved forest and in regard to other proceedings under the Act were taken, the forest officers started interfering with their operations in those areas. Criminal cases for encroachments as also other forest offences were registered and systematic attempt was made to obstruct them from free movement. Even steps for throwing them out under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 were undertaken.
In its order the Supreme Court directed the Record Officer and Forest Settlement Officer to relax the procedural rigour of section 4 and section 6 of the Forest Act and adopt a suitable procedure that would adequately safeguard the right, interests of the Adivasis and Banvasi’s living in Mirzapur Discrict of U.P. before constituting reserve forest there. The Supreme Court also directed the UP Legal Aid and Advice board to look into the matter and consider all legal aspects. It also issued direction to NTPC that was acquiring 1375 acres of land for their projects. The matter again came before the Supreme Court in 1991 and it noted the slow progress in the matter and issued further directions in the matter with a view of nearly implementation.
Again in 1992, the Supreme Court passed yet another order for proper rehabilitation of Banvasis and Tribals so far as NTPC was concerned in the Mirzapur project. The Court said that NTPC must ensure that the rights of the ousters were determined in their respective holding and they were properly rehabilitated and adequately compensated. We find that despite our national policy and lip-service to it, it is the Supreme Court which comes to rescue of the people in distress.
One of the major steps for ecological restoration would be to convince the higher echelons of the Forest Development that forestation should be done not merely with commercial varieties but on an ecologically sustainable basis, i.e., there should be a fair proportion of indigenous species, which care to the needs of the local community.
The cases of Pradeep Krishan v. Union of Indiaand Animal and Environment Legal Defence Fund v. Union of India, relate to tribal rights and privileges in the forest area. In Pradeep Krishan, the Supreme Court suggested:
“If one of the reasons for the shrinkage is the entry of villagers and tribals living in and around the sanctuaries and the national parks, there can be no doubt that urgent steps must be taken to prevent any destruction or damage to the environment, the flora and fauna and wildlife in there areas.”
Besides felling trees, certain other act area also prohibited in reserved forests.In, Animal and Environment Legal Defence Fund v.Union of India,the Supreme Court had to resolve a dispute between two neighbouring states on the rights of tribals. The Court observed:
“..while every attempt must be made to preserve the fragile ecology of the forest area and protect the Tiger Reserve, the right of the tribals formally living in the area to keep body and soul together must receive proper consideration. Undoubtedly, every effort should be made to ensure that the tribals, when resettled, are in a position to earn their livelihood.”
Emphasising stricter vigilance on the exercise of fishing rights and allied matters, the Court insisted on photo identity for access of permit holders, creation of check posts to bar transgress into other parts, daily record of fish catch, prohibition of tribal fishermen from lighting fires on the banks of reservoir and sanction of more monitoring facilities. 58 The Court referred to Pradeep Krishnan‘s case on the depletion of forests and noted that India had forests far less than the stipulated one third of its land.
Tribal people or other forest dwellers, obviously, do not have unrestrained right of access to all forest produce. If they are given rights over standing trees, the rights will definitely be subject to conditions imposed by the Regulations whether they are framed by an old princely state or a new state thereafter. Salehbhai Mulla Mohamadali v. State of Gujrat, illustrates this point. The Supreme Court in this case held that the contractors could have no greater rights than those of the Jagirdars. The same situation exists in the cased of forest dwellers and tribal people who may not have more or greater rights than those they had before the formal legal system became applicable.
The Constitution of India recognizes the pre-existing rights of the tribal people. It classified areas of tribal concentration into three categories, namely, Tribal Areas, Scheduled Areas and Areas not falling within these two. In Samatha v. State of A.P. Supreme Court, by a majority, held that the expression ‘person’ means a natural person, as well as an artificial person including the constitutional government. Justification for such an interpretation was found in the constitutional scheme in which the State is considered a juristic person with the responsibilities of bringing an egalitarian order in which the weaker sections including the tribals are granted the right to live with dignity. Justice Ramaswamy observed :
“The tribals have fundamental right to social and economic empowerment. As a part of right to development to enjoy full freedom, democracy offered to them through the States regulated power of good Government that the lands in scheduled areas are preserved for social economic empowerment of the tribals.”
The Court further observed that a liberal and wider interpretation would maximize allotment of government land in scheduled area to the tribals and make socio-economic justice, as assured in the Constitution, a reality.
Through the Forest Conservation (Amendment) Act, 1988 passed by the Lok Sabha in December 1988 and the decision of the Andhra Govt. to repeal Regulation I, of 1970 Plans are tools to deprive the tribals of their land. The message that comes across loud and clear is that land and other scarce resources are for the big farmers and the corporate sector – not for the tribal and other powerless groups.
To cure injustice caused by the Indian Forest Act which took away all forest rights from the forest dwellers and tribal people The Scheduled Tribe and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has been passed. The Act introduced on 13th December 2005, took two years in the process and notified only on 1st January 2008. Strange enough, the Act was opposed by the environmentalist as well as the Ministry of Environment and Forests as the human activities in the forest area would pose a great risk to the forests. Rules for the implementation of the Forest Rights Act 2006 were finally notified on January 1, 2008, thus operationalising the Act which has been mired in controversy for two years.
The Forest Rights Act gives tribals and other forest-dwellers the right to cultivate forest land already under occupation, the right to own, collect, use and dispose of minor forest produce, and rights inside forests that are traditional and customary like grazing. The Act was notified after over a year of political interventions, bureaucratic twists and hectic lobbying by activists representing tribal and wildlife interest groups. While the legislation is aimed at righting an historic injustice done to tribals and forest-dwelling communities by the Indian Forest Act of 1927, which took away all forest rights from tribals and forest-dwellers, the draft bill was opposed strenuously by the Ministry of Environment and Forests (MoEF) and by environmentalists. They argued that by allowing human activity in forest areas, already endangered forests and wildlife would be put at greater risk. Apart from the Scheduled Tribes, “other traditional forest dwellers” are also covered in the Act. They are defined as those who have for at least three generations (75 years) resided in and have depended on the forests for bonafide livelihood needs. Forest rights include occupation for self-cultivation, collection/processing etc. of minor forest produce, conversion of land pattas into titles, intellectual property and traditional knowledge rights, in-situ rehabilitation including alternative land use etc. The traditional right of hunting etc. has been excluded.
The characteristics features of the new legislation are that it works on through the democratic institution of panchayat/Gramsabha with the provision of appeal The rigour of the bureaucratic authority has been done away as existed earlier. The Gram Sabhas shall:
- identify the local community forest resources to be managed under the Act’s provisions.
- receive, consolidate and verify claims on individual and community rights, and pass appropriate resolutions on the claims.
- ensure protection and conservation of forest and biodiversity resources, and
- to check any activity which could affect the natural and cultural heritage of the forest-dwelling community
The Forest Rights Act has forced some changes on this front, because it explicitly identifies community-based conservation as a legitimate right. Not only that, the Act has also specific provisions for empowering those who hold forest rights, and for checking activities detrimental to the forest and biodiversity. These provisions have opened up new opportunities for many Community Forest Management groups to assert their right of conservation under the law. These communities have started claiming their rights of protection and conservation of forest resources and biodiversity and there is a hope among these groups that through the Act the holistic models of protection and conservation developed by them would find legal recognition. The Act further recognizes and vests the following types of rights in such individual / communities that may be summed up as the basic rights of which the people were deprived for a period staggering 150 years:
- Right to ownership / title
- Right to use the forest produce
- Right to in situ rehabilitation in cases where such persons have been illegally evicted from forest land prior to the 13th day of December, 2005.
- Right to protect, regenerate or conserve or manage the forest resource
The categories of rights mentioned above highlight the importance of the preservation of the status of the tribal people and extent of the care the government has ultimately expressed in this piece of legislation. Having regard to the symbiotic relationship between the tribal people and forests, a primary task of all agencies responsible for forest management should be to associate the tribal people closely in the protection, regeneration and development of forests as well as to provide gainful employment to people living in and around the forest with special attention to the alternative sources of domestic energy on a subsidized basis to reduce pressure on the existing forest areas. Traditionally tribal people have satisfied practically all their needs from the forests. The Act has acceded this right of tribal people. The holders of customary rights and concessions in forest should be motivated to identify themselves with the protection and development for forests from which they derive benefit. The tribal people’s customary rights and concessions and user of forests and its produce have, therefore, been recognized and protected.
Some past experiences may not be irrelevant to cite here as illustrations to place the contribution of these people towards the forests.
The Irula people of southern India have traditionally been a forest based tribe skilled at living off the land. The hunter – gatherers are the largest tribe in Chingleput District in Tamil Nadu, numbering nearly 30,000. The I.T.W.W.S. is a volunta
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