Opinion - News Analysis   

Why delay the Tribal Rights Bill?

Brinda Karat

Each day that the Government delays the passage of the Bill is another day of uncertainty and insecurity for lakhs of tribls who face the terror of eviction.

— FILE Photo: V. Sudershan

NEEDED, JUSTICE: Tribals at a demonstration in New Delhi in connection with the Scheduled Tribes (Recognition of Forest Rights) Bill.

WHY HAS the Government not listed the Scheduled Tribes (Recognition of Forest Rights) Bill for discussion in the current Parliament session? The Group of Ministers formed to study the unanimous recommendations of the all-party Joint Parliamentary Committee (JPC) is reportedly not in favour of four of the major amendments suggested. These are: the cut-off year for regularisation of tribal rights to forest land; the recommendation of the JPC to remove the ceiling of 2.5 hectares for a nuclear family; the inclusion of non-tribal traditional forest dwellers in the proposed law; and, the rights of gram sabhas to identify beneficiaries under the proposed law. The Government's view is that these recommendations will destroy India's forests and render impossible the protection of wildlife. Is this view justified?

It may surprise the layperson to know that according to the legal usage of the word forest in our country, at any given point of time a part or the whole of an area designated as forest may not have any trees on it. In an answer to an unstarred question in Parliament (December 23, 2005), the Ministry of Environment and Forests (MoEF) stated that within two years — from 2001 to 2003 — the extent of "forestland" increased by as much as 6.30 lakh hectares. Asked further what the criteria for notifying such land as forestland was, the answer simply was that the land could be so notified under various provisions of the law. But there was no answer to the actual question: what is the "criteria" for notification? So, at present, a government can notify land arbitrarily as forestland and once so notified its custody rests with the Government. How many families live on land notified as "forest"? The Government has no answer. But all these families then turn up in government statistics as "encroachers" on forestland.

A similar situation exists as far as notification of wildlife sanctuaries and national parks is concerned. Tribals who have lived on such land for generations are suddenly informed one day that it has been notified as a park or a sanctuary. They are then harassed, refused recognition of rights, denied access even to minor forest produce, and often forcefully evicted.

The proclaimed aim of the Bill is to undo these "historical injustices" by recognising and regularising the rights of tribals on the land they occupy. However, this noble intention is defeated by the restriction of the eligibility clause to only those who can prove occupation before the cut-off year of 1980. Further, only land below 2.5 hectares per nuclear family will be regularised; the rest will be taken over by the Government.

The JPC has differed on both counts and has proposed that the cut-off year be the same as the date of introduction of the Bill, that is, December 13, 2005, and that there should be no ceiling.

Realistic appraisal

The JPC recommendation is based on a realistic appraisal that with 1980 designated the cut-off year the Bill will become an instrument for eviction of tribals. According to the Government's calculations given in Parliament, the post-1980 "encroachment" was 13.43 lakh hectares as on March 31, 2004. The MoEF has not been able to provide a break-up of how many of these "encroachers" are tribals and how many non-tribals. Following the Supreme Court order of May 3, 2002 to evict post-1980 encroachers, 1.52 lakh hectares of forestland was cleared of "encroachers" in a single year. According to the MoEF, genuine forest dwellers and tribal communities suffered in this eviction drive and so the evictions were stopped vide an Ministry circular of December 21, 2004. The Supreme Court order still stands. The JPC recommendations offer a solution to this problem. Firstly, the JPC differentiates between tribals and non-tribals keeping the cut-off year for non-tribal forest dwellers as 1980 as proposed by the Government. This is through its recommendation that "all other traditional forest dwellers have to prove that they have been in the forests for three generations." It can be further assumed that tribals hold only some portion of the 13.43 lakh hectares to be cleared of "encroachments." Thus only an insignificant portion of "encroached" forestland will need to be regularised post-1980. The Government's adamant position on this date is therefore puzzling.

Large areas of forestland are being handed over to mining companies for industries and other projects. Over 100 MoUs have been signed by various State Governments and approved by the Centre to grant leases to companies on forestland. From January 2001 to April 2006, as much as 5.73 lakh hectares of such land were converted for non-forest purposes by the Government, according to a report of the Expert Committee constituted by the Supreme Court. Therefore, to deprive tribals of an insignificant portion of hardly one per cent of forestland, in the name of conservation, is clearly unjust. It is equally true that given the lack of records it is extremely difficult for tribal communities to prove the year of occupation. A blanket cut-off year dating back over two-and-a-half decades could become a licence for evicting tribals who do not have the required documentation.

The JPC has rightly recommended deletion of the Government proposal for a ceiling of 2.5 hectares of land per nuclear family. The recommendation is that rights should be recognised on an "as is where is" basis. In fact, this is precisely what the MoEF recommended in September 1990 in a circular to all State Governments to "regularise pre-1980 eligible encroachments on a one-time dispensation." No ceiling was fixed. The States, however, failed to properly implement the guidelines. Only 3.6 lakh hectares were settled and rights given to tribals and other forest dwellers. But the point is that there was no ceiling. To introduce a ceiling now is clearly discriminatory since one section of forest-dwellers will be able to hold land with no ceiling while another section will be subjected to a ceiling. In any case, why should tribals suffer because of the failure of State Governments to regularise their rights?

It is well known that tribal-held forestland in the main is dependent on rain, has low productivity, and is often dry, hilly, stony land. The average ceiling for dry land in different States is 21 acres. To put a ceiling of 2.5 hectares for tribals is unjust.

Problematic concept

Thirdly, the concept of a "nuclear family" for tribals is problematic. Property rights, customary laws, and inheritance rights differ across the country for different tribes. In many communities, daughters have equal rights and therefore the term "nuclear" would have to be defined in terms of any "adult" son or daughter. Also, instead of the Bill being one aimed at regularisation of existing occupation, it could turn out to be a forestland distribution programme that is certainly not its intention.

As far as inclusion of traditional non-tribal forest dwellers is concerned, the Centre and the States have already recognised them in the various circulars and guidelines of the MoEF. The Supreme Court has also accorded them recognition. As far as this category is concerned, the JPC recommendation of a three-generation proof of occupation is more stringent in the conditions it imposes for recognition of their rights. Many of these sections are Scheduled Castes who have traditionally lived in the forests. In some States, some of them may be recognised as tribals and as Scheduled Castes in others. Excluding them totally from the proposed law as suggested by the Government will have serious repercussions.

At the same time, the JPC recommendations make it incumbent on governments to clear the forests of all those non-tribal encroachers who are not traditional forest dwellers as defined by it.

Much of the forestland comes under the Fifth and Sixth Schedule areas. Laws governing these areas have accorded substantial rights to tribal communities, autonomous district councils, and gram sabhas concerning a range of issues such as under the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA). Representatives from the northeast have asked that the rights they already enjoy over their land should not be circumscribed by the Bill. The JPC has suggested an amendment to ensure the primacy of gram sabhas and equivalent bodies to finalise the list of beneficiaries. The Government, on the other hand, holds that gram sabhas could connive with non-eligible claimants to get forestland and that the Forest Department and officials of other Departments should take the final decision. Thus a law to enhance rights could become one to undo rights apart from being in violation of the Constitution.

Each day that the Government delays the passage of the Bill is another day of uncertainty and insecurity for lakhs of tribls who face the terror of eviction. The Government should act democratically and accept the unanimous all-party recommendations of the JPC. The Government's opposition to the proposals is clearly unjustified.

[The writer, an MP, is a Polit Bureau member of the Communist Party of India (Marxist).]

Printer friendly page  
Send this article to Friends by E-Mail

Stories in this Section

The magic shehnai
AIDS control priorities
Little chance of nuclear compromise
Why delay the Tribal Rights Bill?
A gold mine waiting to be tapped
Corrections and Clarifications
The moralists have already lost their case
Bind over RTI Act
Office of profit issue
Unrivalled legend

Copyright © 2006, The Hindu. Republication or redissemination of the contents of this screen are expressly prohibited without the written consent of The Hindu