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Dr.P .Sailaja

B.Sc., LL.M., Ph.D.(Law) Lecturer in Law, MRVRGR Law College,Vizianagaram

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The Rights of the Schedule Tribes vis-a-vis Forest Laws

Dr.Petikam.Sailaja

Tribe is a social gathering of a typical type of people having vast differentiations with the rural and urban people. Tribes in the traditional sense are backward people who live aloof from the rest of people. Lewies Gillin and Phillip Gillin have said “Tribe is a group of local communities living in a common area, speaking a common dialect and having a common culture. There is a distinction between Tribe and Caste.[1] The whole tribal groups in India can be divided into four major divisions based on language, territory, occupation and physical features.[2]

The Indian Constitution accords a special status for STs, particularly advocating positive discrimination in favour of the ST communities in matter of education and employment. Notwithstanding this, and many other affirmative efforts made in the social and economic dimensions between STs and general population. Therefore, the Scheduled Tribes deserve an exclusive niche in development efforts to achieve the goal of inclusive growth. For instance if you take their rights in forests are concerned number of rights are available for their empowerment in forests irrespective of the aim of conservation of forest.

Actually forests[3] are major natural resources and also recognized as a colourful expression of nature. They are also recognized as guardians and protectors of the wildlife of the country. Forests are valued not only for various kinds of flora and fauna but also for minerals, water sheds, crudes of rivers, check on desertification, and as important recreational resources and for their scenic beauty. The forests have been vital to the human life, since the time immemorial. There, management of forests is an essential aspect of the protection of the environment. It also becomes more important as the trees are known as pools or banks of carbon dioxide. Cutting of trees releases carbon dioxide into the atmosphere which has largely contributed to the green-house effect or global warming. This global warming, in turn, has resulted in the melting of ice-caps and rise in the sea-level; a change in a climate patterns has also been experienced all over the world. The UNEP[4] has recently declared that because of the effect of green-house gases, the year 2003 has been found to be the hottest in the last fifty years.

Until the 42nd Amendment to the Constitution in 1976, the subject “forest” was in the State List, in VII Schedule of the Constitution. However, the numerous state laws on the subject could not effectively save the forest land. Therefore, the Parliament and the States amended VII Schedule and placed the subject “forest” in the Concurrent List as item 17-A, by taking it out of the State List. Consequently, after 1946, both the Parliament and the State Legislatures can make laws on the subject “forest” of course subject to the prevailing power of the Central Law over the State Laws, in the event of any conflict. Infact, the Central Act namely the Indian Forests Act, 1927[5] has been in the statute book even before the commencement of the Constitution.

The following are the important enactments which provide measures for the protection of forests, forest products and forest land including penalties for contravention of the provisions thereof in Central and A.P. State wise-

  1. The Indian Forest Act, 1927,
  2. The Forest (Conservation) Act, 1980 and
  3. The Andhra Pradesh Forest Act, 1967

Besides the above enactments Government of India has also adopted the National Forest Policy in 1988. As the Tiger Task Force of the Government of India put it, “in the name of conservation, what has been carried out is a completely illegal and unconstitutional act is committed in a land acquisition programme.” Hence in the year 2006, the Government of India adopted one more enactment for the protection of rights of the tribes and other traditional forest dwellers by the name The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.[6]

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, they have to prove:
  • That the above conditions have been true for 75 years, in which case they are an Other Traditional Forest Dweller (s. 2(o))[7];

OR

  • They are a member of a Scheduled Tribe (s. 2(c))[8]; and
  • They are residing in the area where they are Scheduled (s. 4(1)).

In the latter case they 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[9] 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[10]. 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[11]. There is no question of granting 4 hectares of land to every family. If a person is cultivating half a hectare on December 13, 2005, he receives title to that half a hectare alone; and if he is cultivating nothing, he receives nothing. If he is cultivating more than 4 hectares without documents or a dispute, he receives title to only 4 hectares. The land cannot be sold or transferred to anyone except by inheritance[12].

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 [13]. This does not include timber.

b. Grazing grounds and water bodies[14]

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,[15] while section 5 gives the community a general power to protect wildlife, forests, etc[16]. 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 recognized?

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[17]. 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.[18] Finally, land recognized under this Act cannot be sold or transferred.

Conclusion:

Millions of people live in and near India’s forest lands, but have no legal right to their homes, lands or livelihoods.  A few government officials have all power over forests and forest dwellers. The result is both forests and people die.  This Act recognizes forest dwellers’ rights very aptly and makes conservation more accountable.

[1] Distinction between Tribe and Caste are-

  1. A tribe is a local or territorial group but a caste is a social group.
  2. The tribes have their own common dialect whereas there is no common language with a caste.
  3. Tribe becomes caste with the loss of its territorial attachment but castes cannot become tribes.
  4. Tribe is a political association, whereas caste is a social association.

 

[2] Myneni S.R., “sociology”, First Edition 2008, Allahabad Law Agency

[3] The term “forest” is derived from a Latin word “foris” which mean “outside” probably indicating outside the dwelling house.

[4] UNEP-United Nations Environment Programme

[5] Act No.16 of 1927

[6] Act No. 2 of 2007

[7] Section 2 (o) “ Other Traditional Forest Dwellers” means any member or community who has for at least three generations prior to the 13th day of Dec, 2005 primarily resided in and who depend on the forest or forests land for bonafide livelihood needs.

Explanation: For the purpose of this clause, “generation” means a period comprising of twenty five years.

[8] Section 2(c) “Forest Dwelling Schedule Tribes” means the member or community of the Schedule Tribes who primarily reside in and who depend on the forest and forest land for bonafide livelihood needs and include, the Schedule Tribe pastoralist communities.

[9] Section 4 (3) of The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[10] section 3(1) (a) and 4(6) Ibid

[11] section 3(1)(f) and (g) of The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[12] section 4(4), Ibid

[13] section 3(1) (c), Ibid

[14] sections 3, Ibid

[15] Section 3 of the Act provides the forest rights of the forest dwelling Schedule Tribes and other Traditional Forest dwellers on all forest lands.

[16] Section 5 of the Act  provides Duties of Holders forest rights

[17] Section 6(6) of The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

[18] Sections 6(2) and 6(4) Ibid


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