The right to live with dignity

PRADIP PRABHU

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AN acrimonious exchange of words over the Scheduled Tribes (Recognition of Forest Rights) Bill, has appeared in the national press during the past couple of months. The first salvo was fired by environmentalists, mislead by a calculated misinformation campaign that the bill will distribute 2.5 hectares of forest land to all tribal families and result in the destruction of scarce forest cover of the nation. The raging battle between those supporting the bill and arguing on its merits and those opposing it by using the tiger crisis has polarized many environmentalists and tribal rights activists in adversarial positions that appear irreconcilable.

This author believes that the battle is not lost and that the historic bill with some clarifications and improvements will serve to reconcile the two adversarial positions. It will integrate conservation with sustainable livelihoods, restore dignity into the lives of millions of the tribal people and forest dwellers and put in place a new governance system in the forest, where the ‘legitimate citizens’ of the forest will themselves take on the duty to protect the forest wealth of the nation.

In large measure the concept and frame of the present bill were laid down in an affidavit filed by MoEF in the Supreme Court on 21 July 2004 through Anurag Bajpai, the Assistant Inspector General of Forests. The relevant paragraphs of the affidavit are quoted below, the emphasis is mine.

‘6. ….according to the Indian Forest Act, 1927, the Government could proclaim any piece of land to be ‘forest’ by issuing a notification to this effect and declare it to be government land.

7. …for most areas in India, especially tribal areas, record of rights did not exist hence rights… could not be settled during… consolidation of forests… therefore, the rural people, especially tribals, living in the forests since time immemorial, were deprived of their traditional rights and livelihood and consequently, have become encroachers in the eyes of law.

8. …after independence… during… amalgamation of princely states… lands of ex-princely states… zamindari lands were proclaimed as reserved forests… without settlement of tribal rights as the records of rights never existed for tribals

10. …prior to 1980, there was indiscriminate diversion of pristine forest land for non-forestry purposes…. out of which most of the forest land was diverted for agricultural practices.

12. …even this benefit of indiscriminate diversion remained in the hands of a few powerful lobbies. Tribals again were at loss… as their rights were not recorded and… never… recognized.

13. ….Central government took note of unabated diversion… an Ordinance… for judicious regulation of diversion/de-reservation… later converted into Forest (Conservation) Act 1980.

15. …the Forest (Conservation) Act, 1980 paved a way for legal solutions to long pending settlement of rights of the tribals living on the forest lands since time immemorial.

16. …to achieve… maximum advantage of… the application of the Forest (Conservation) Act, 1980 and strengthen the concept of sustainable forest management through participatory approach… National Forest Policy, 1988 was formulated. Its salient features in respect of tribal rights are:

a. …due regard to traditional rights of tribal people on forest land… recognizes symbiotic relationship between tribals and forests… envisages agencies responsible for forest management… associate tribal people closely in protection, regeneration and development of forests… provide gainful employment to the people living in and around forests.

b. …safeguard customary rights and interests of the tribal people on forest lands.

c. …emphasizes need for undertaking integrated area development programmes to strengthen tribal economy in and around forest areas… provisions for alternative sources of domestic energy on subsidized basis, to reduce pressure on the existing forest areas.

17. …to fulfil the commitments …in Forest Policy… settlement of people’s…especially tribals’ rights, over forest lands in a regulated manner, the central government issued guidelines on 18/9/1990 after obtaining approval of the Union cabinet.

18. …the central government requested the state governments/UT administrations to follow these guidelines… But, the state/UT governments have failed to give any response.

19. ….the state/UT governments could not maintain a distinction between the guidelines… Rather, the state/UT governments have mixed up the whole issue.

20. …proposals received only for regularization of eligible encroachments… deprived the tribals of natural justice

21. …Central government is committed to the recognition of the tribal rights in forest areas.

22. …the central government reiterated the guidelines on 30-10-2002 and reminded the state governments/UT administrations to consider the settlement of disputed claims of tribals over forest land… and requested to submit the proposals in this regard…

23. ...the state government/UT administration have shown no progress in this regard...

26. …the Guidelines of 5-2-2004 are based on the recognition that the historical injustice done to the tribal forest dwellers through non-recognition of their traditional rights must be finally rectified... It should be understood clearly that lands occupied by the tribals in forest areas do not have any forest vegetation the absence of legal recognition of traditional rights, adjoining forests have become ‘open access’ resource as such for the dispossessed tribals, leading to forest degradation in a classic manifestation of the tragedy of commons.

27. …the fresh Guidelines do not relate to encroachers; thus remedy a serious historical injustice. They will also significantly lead to better forest conservation…

30. …the Central government wishes to consolidate the forest lands keeping the requirements of the people in mind so that the principle of sustainable forest management could be followed in its real spirit… to achieve the tenets envisaged in forest-tribal interface and to ensure that efforts put in towards forest conservation are not relegated to the background, the rehabilitation schemes are to be implemented by a tribal wing under the forest department.’

 

In its affidavit, while praying for permission to verify and vest the rights provided for in the 1990 guidelines, the forest department laid the grounds and created the frame of the Tribal Forest Rights Bill by highlighting seven critical issues.

1. At the outset MoEF admitted for the first time that rights of forest dwellers, particularly tribals, were not legally recognized in forest consolidation, during both the colonial and post independence period, in clear violation of requirements of law.

2. This violation and failure of the competent authorities to perform their duty enjoined on them by law to settle rights deprived the forest dwellers, particularly tribals, of their traditional rights and this constitutes a historical injustice which must be rectified.

3. Failure to recognize rights further penalizes forest dwellers, particularly tribals, by denying them legitimate rights. Additionally it deprives them of a legitimate livelihood, renders de facto legitimate right holders into encroachers and continually threatens them with eviction.

4. The Union government made efforts to redress the injustice through the Guidelines of 1990, but state governments/UT administrations misunderstood them, failed to implement the guidelines and denied the forest dwellers natural justice.

5. The adjoining forests have been reduced to ‘an open access’ resource for dispossessed tribals, leading to forest degradation in a classic manifestation of the tragedy of commons as a result of the absence of legal recognition of traditional rights.

6. The lands are occupied and cultivated by tribals in forest areas for generations together and in many cases for more than two centuries; they do not have any forest vegetation. Hence there is no question of any further deforestation following vesting of rights.

7. The recognition of rights will significantly lead to better conservation.

 

The bill was drafted by the Technical Resource Group, constituted by representatives of the Ministries of Environment and Forests, Law and Legislative Affairs, Social Justice and Empowerment, Panchayati Raj, Rural Development and Tribal Affairs and representatives of civil society consisting of two environmental activists, two tribal rights activists and two legal specialists. The bill was given final shape with the assent of all the members of the TSG, but subsequently ‘forest dwellers other than Scheduled Tribes in the areas scheduled for them’ were excluded from the ambit of the bill. A closer look shows that the bill intends to respond to exactly the same issues that the Ministry of Environment and Forests raised in the Supreme Court. These are manifested in the Objects and Reasons and the bill itself.1

‘Forest dwelling Tribal People and forests are inseparable. One cannot survive without the other… conservation of ecological resources by forest dwelling tribal communities have been referred to in ancient manuscripts and scriptures… colonial rule somehow ignored this reality for greater economic gains… After independence, we continued with colonial legislations… the reservation processes for creating wilderness and forest areas for production forestry ignored the bona fide interests of the tribal community from the legislative frame… The simplicity of tribals and their general ignorance of modern regulatory frameworks precluded them from asserting genuine claims… Modern conservation approaches also advocate exclusion rather than integration.

‘It is only recently that forest management regimes have realised that tribal communities, who depend primarily on the forest resources cannot but be integrated in their designed management processes… forests have the best chance to survive if communities participate in its conservation… Insecurity of tenure and fear of eviction are perhaps the biggest reasons why tribal communities feel emotionally as well as physically alienated from forests and forest lands. This historical injustice now needs correction before it is too late to save our forests from becoming the abode of undesirable elements… recognition of forest rights enjoyed by the forest dwelling Scheduled Tribes on all kinds of forest lands for generations and which includes both bona fide needs of forest land for sustenance and usufruct from forest are the fundamental bases on which the proposed legislation stands.

‘The Bill… reinforces and utilises the rich conservation ethos and cautions against any form of unsustainable or destructive practices; lays down a simple procedure for recognition and vesting of forest rights… so that rights vested in forest dwelling tribal communities become legally enforceable… provides for adequate safeguards to avoid any further encroachment of forests and thereby strengthens the conservation regime by giving a permanent stake to STs dwelling in forests… in a symbiotic relationship with the entire ecosystem.’

 

Notwithstanding some limitations of the bill, a careful reading indicates the intentions of its drafters to go beyond traditional thinking on property rights, particularly the absoluteness of a property right, the objectification of owned property and exclusivity of ownership. Forests are not property; they are life and hence are also a rights holder. The exercise of the forest right as visualized in the bill, therefore, is to give legal frame to an unstated contract between two living parties, each with their own right to life; the enjoyment of a right by a forest right holder for livelihood is an exercise of the contractual relationship with the forest environment and non-performance of her/his duty by the human person would imply the rescinding of the contract and loss of the forest right.2 Hence the bill is framed within seven parameters.

a) Conservation is a sine qua non for the enjoyment of forest rights. Failure to respect the integrity and rights of nature debars the enjoyment of the forest right.

b) Sustainability is the qualifying principle in the exercise of forest rights, which are not absolute, unlike other property rights. Unsustainable use invites a ban on the enjoyment of the right itself not merely a curtailment of the right.

c) A citizen’s rights-based frame of democratic forest governance, built on integral relationship between rights and duties. By making conservation of the natural environment not merely a duty of the forest right holder, but also a right of communities protecting their forest resources according to their traditions, the bill seeks to transform the current state of alienation of the forest communities from ‘state forests’ appropriated from rightless subjects to ‘people’s forests’ preserved and protected by the right holding individuals and communities themselves through their democratic institutions as citizens of the forest.3

d) Coverage of all forest rights traditionally enjoyed by forest dwelling communities, whether recorded in law or agreement or recognized through long usage by the relevant authorities, is the rationale behind making the bill comprehensive in its coverage. This approach, which was also the terms of the TSG, was motivated by the view that no grounds for disaffection remain between forest dwellers and the forest authorities, thereby creating the grounds for an amicable, egalitarian and equitable relationship.

e) Vesting of forest rights covers all forest regimes and forest lands, including unclassified, existing or deemed, protected or reserved forests and protected areas, with the rationale that a large number of presently categorized reserved/protected forests and protected areas were created without settlement of rights. The vesting of rights will ensure that other rights, which flow from vesting, including the right to rehabilitation, are also available in law to the rights holder.

f) Forest rights are not absolute in themselves as they flow from an unstated contract of humans and nature4 and, therefore, are exercised within the frame of the rights of nature and are meant only to satisfy bona fide livelihood needs of the rights holder and not commerce. Forest rights are, therefore, circumscribed by the rights of the forest. Hence protection of nature is also the subject of rights, duties and responsibilities. The right to a livelihood besides is only inheritable and cannot be alienated or transferred, as a ‘livelihood’ can only be surrendered and cannot be sold or alienated.

g) The recognition and vesting of rights cannot be bureaucracy driven, already disqualified by more than a century and a half of failure in law to recognize or settle rights. The process of recognition and vesting of rights hence should be part of a democratic, participatory and transparent process, based on assertion of the right by the holder, verification and affirmation of the right by the community (gram sabha) and confirmation through the involvement of all stake holders.

 

One could then ask: Why the opposition to the bill? The roots of the opposition to the bill go beyond what is immediately read in the press and said in the corridors of power, beyond the disinformation campaign launched by vested interests opposing the bill, declaring that it would result in distribution of prime forest land to the tribal families and a loss of 60 to 75% of India’s forests. The scenario of ecological crisis that was painted led to an unwarranted polarization and hardened positions on both sides of the bill. Polarization between the traditional conservationists, the official conservationists and the enlightened conservationists would, in the long run, be counter-productive, whether in meeting the challenge of conservation or the livelihood issues of tribal communities, whose conscious, deliberate and free involvement is a sine qua non for the survival of the forests.

 

But the overt posturing hides an elitist ideology, which lends itself to justifying the legal construct of colonialism and internal colonialism, including the dictum of res nullius, arbitrary takeover of resources without the rule of law, state monopoly over resources and an inherent mistrust by the colonial state of its subjects. The dictum of res nullius was precisely the principle by which large forested tracts were taken over by the colonial state.5 Take the case of Thane district where 470790 acres designated as Reserved or Protected Forests by one stroke of the imperial pen consisted of a whopping 85% (401566 acres) of free grazing lands of tribal communities.6

History repeats itself with unfailing regularity. In MP in 1956, just nine years after independence, 94.78 lakh hectares of common lands were declared Protected Forests with just a notification.7 The rights of the people living and cultivating those lands were, of course, never recorded. Such instances can be repeated ad nauseam. Independence neither changed the character of the colonial Indian Forest Act 1927 or of the forest department which administered it. Who then are the real encroachers?

The second facet of the colonial construct is the arbitrary takeover of lands and declaring them as forests without subscribing to the tenets of law. Amendment to the Forest Act to create a new category of deemed Reserved Forests without settling rights is yet another colonial tool that independent India adopted without a second’s reflection. The MP Forest Department Survey Report in 2003 is telling. Rights of tribals and forest communities in 83% of lands declared as forests remain unsettled to date, even after five decades.8 The same is the case in Orissa, Andhra, Rajasthan, Gujarat, Maharashtra, Karnataka and Kerala.

 

To compound the injustice, a large portion of the unsettled forests has been declared wildlife sanctuaries and national parks, leaving de facto but unsettled rights holders at the mercy of the forest department, an arbitrary process which unfortunately has heightened after the Godavarman case.

The third facet of the colonial construct is the crown’s monopoly over resources, howsoever appropriated with the force of law and arms. The forests became a state monopoly to do with them as they desired. Initially they provided revenue, timber and raw material for industry. The states coffers filled even as hills were laid bare and the local people starved. Next came the plantation phase, which destroyed miscellaneous crop, natural forests and degraded forest lands. Once again the forest dwellers paid with loss of food security.

After the alarming loss of forest cover and the Conservation Act came the third, the conservation phase. National parks, game sanctuaries and biosphere reserves were established in the best natural forests to protect them from felling and plantations in the name of scientific forestry. Protected areas were created but the protection of law was not extended to tribal communities. Those whose rights were not settled during the initial consolidation of forests were doubly punished. Basing itself on the Forest Conservation Act, the Supreme Court banned collection of minor forest produce (MFP) in protected areas. The result – starvation deaths, child bondage and distress migration of tribals.

 

The fourth facet of the colonial forest regime was the patent mistrust of its subjects concomitant with absolute trust in its own agencies like the forest department. In such a construct, the colonial subject has no rights, is the object of this mistrust, and can never be believed to protect a state monopoly. An analysis of the responses reflects that all these four constructs of colonialism still marks the discourse, negating thereby the reality of the tens of thousands of communities who are protecting the forests as their community resource at great cost and personal risk. Of course, as no provision in the law recognizes voluntary community conservation, no record is maintained.

Data Settlement of Rights of Forest Dwellers in MP and Chhattisgarh till 2/12/2003

Number of Forest Blocks in Undivided MP

14170

100%

Forest Blocks (settlement of rights completed by FD till 1987)

2411

17.1%

Forest Blocks (settlement of rights not complete till 2/12/2003)

11759

82.9%

Forest Blocks in MP (settlement of rights not complete)

6048

 

Forest Blocks in Chhattisgarh (settlement of rights not complete)

5711

 

In the recent past, true to the state’s belief that only its functionaries can conserve the forest, a large number of these conservationist communities have been coopted into the JFM scheme without informed consent. Collective conservation is replaced by JFM committees of local elites, community surveillance by paid watchmen. Illegal felling continues unhindered, as the community is alienated from what was their conservation initiative in the first place.

 

The second problematic that underlies the opposition is perhaps an unintentional position: ‘Punish the Victim, Reward the Felon.’ As admitted by the MoEF, forest dwellers are the victims of multiple injustice repeatedly perpetrated by the colonial state and by independent India.9 Not a moment’s thought is being given to the fact that under the stewardship of the forest department, we have lost 60% of its forest cover.10

No thought is given to the fact that by the admission of the forest department itself, in the regularization of encroachments, the benefit of indiscriminate diversion made by state/UT governments remained in the hands of few powerful lobbies. Tribals again were at a loss; they could not harness this benefit also as their rights were not recorded and have never been recognized.11 It would be an act of supreme self-deception to believe that forest officials were not responsible for the diversion to the powerful lobbies or that the forest functionaries are not aware about illegal felling.

It would be an illusion to believe that any forest offence – be it illegal felling, poaching or encroachment – can take place without the active collusion or passive connivance of the forest functionaries. So when the opponents to the bill close their eyes to reality and say that vesting rights with responsibilities on the forest dwelling scheduled tribes will result in a loss of forest cover, which view is totally at variance with what MoEF has claimed in its affidavit, is not the opposition punishing the victim and rewarding the felon?

 

A third conclusion that can be drawn is that the opposition believes that only by strengthening the colonial practice of forest governance, and continuing with a discredited system of guards and guns, can conservation of natural resources of this country be ensured. But all instances of successful conservation point to the need for democratic community involvement. The opposition has failed to record that 60% of the forest lands in the department’s charge have been reduced to degraded lands while 59% of the nation’s best forests are in tribal homelands.12

A case in point is the of Dahanu division in Maharashtra where the Draft Revision of Forestry Working Plans/Schemes of 1988 submit that in 10 of the 11 circles, 75% of the forested area of the division was destroyed in less than a decade,13 when miscellaneous tree crop was clear felled and planted with commercial timber varieties, the forest was destroyed. As against it forest revival is only observable where local communities have taken charge.

Details of Forest Areas

Recorded Forest Area

76.5 million hectares

 

Actual Forest Area

63.72 million hectares

 

Dense Forest Area

24.93 million hectares

40%

Degraded Forest Area

38.79 million hectares

60%

Encroached Forest Area

1.25 million hectares (as per forest department estimates)

1.9%

Encroached Forest Area

1.34 million hectares (as per forest ministers statement)

1.91%

The fourth problem with the opposition to the bill is the failure to accept that citizens of the forest with livelihood rights can be the only goal for a nation wedded to democracy. When we broke free from the shackles of colonialism, as a free nation we gave ourselves a constitution built around the fundamental rights and duties of citizens and decreed that it will be the endeavour of the state to ensure that these rights be upheld and duties enforced. The forest communities of this nation are still governed by a colonial law, which created rights for the state at the cost of its subjects. The bill of forest rights and duties could serve as the new constitution of free citizens of the forest, whose duty it will be to conserve the foundation of the freedom from hunger and want as well freedom of the forest to flourish under the careful attention of caring communities. The forest department of the colonial vintage has been a failure, a forest department learning to be the precursor of democratic governance of the environment is the challenge of the future.

 

Notwithstanding the vehement attack on the bill based on a deliberate and malicious misinformation campaign that the bill intends to distribute 2.5 hectares of forest land to all tribal families, when Sec 5 (i) states that recognition of occupation of forest land under 3(a) prior to 1980 will be limited to a maximum of 2.5 hectares per nuclear family of a forest dwelling Scheduled Tribe; the battle for redressing two centuries of ‘historical injustice’ has not been lost. The majority of friends in the environment movement strongly believe that rights must be recognized and the insecurity, distress and disaffection in their homelands in the absence of legal recognition of their rights, which grows day by day must end.

 

Activists of the environmental and tribal movements strongly believe that sitting across the table to clarify grey areas, ensure the bill effectively weeds out abuse by vested interests, powerful lobbies and unscrupulous elements and puts an end to further encroachment and loss of forest cover, is absolutely necessary. Conservation of nature is majorly in the interest of the tribal people and forest dwellers. The tribals invite all friends to sit down together to find new solutions in the firm belief that a nation committed to democratic values, as enshrined in its constitution, calls for a new frame of forest governance rooted in rights and leadership of the citizen community, with responsibility and authority for conservation and a fundamental departure from colonial practices of appropriation, policing and alienation of forest dwelling communities.

Denying adivasis, who have preserved the forest for generations, their forest rights has reduced them to India’s poorest, marginalized communities, condemned to starvation, malnutrition and death. We also believe that integrating conservation of nature with livelihood and food security is the only effective alternative before the nation.

 

______________

* The author was a member of the group involved with the drafting of the Scheduled Tribes (Recognition of Forest Rights) Bill 2005.

 

Footnotes:

1. The Scheduled Tribes (Recognition of Forest Rights) Bill 2005 is available from the website of the Ministry of Tribal Affairs.

2. In most tribal communities, nature is recognized as Dhartari (Earth Mother) with humans being one of her many children. In many tribal traditions, a human being enjoys the right to be sustained by her/his mother (livelihood) while at the same time, nature has the right to be preserved. The Warlis of Maharashtra have a legend in which death is believed to have entered the earth when Pandu (humans) insulted and kicked Dhartari.

3. Parth J. Shah, ‘Missing the Woods’, in The Indian Express, Mumbai, 20 June 2005.

4. The unstated contract between two living beings is a recurring theme in the tribal ethos. This aspect has been dealt in detail in Chapter V of the Report of the Expert Group on Prevention of Alienation of Tribal Land and Its Restoration, Ministry of Rural Development, GOI, New Delhi, 2004.

5. I. Munshi, ‘Customary Rights and Colonial Regulations: Thane Forests in XIX Century’, in M. Miri (eds) Continuity and Change in Tribal Society, Indian Institute of Advanced Studies, Shimla, 1993, quoting the Report of the Bombay Forest Commission 1878 which is replete with examples of where the colonial regime took over community lands without a moment’s compunction.

6. Report of the Bombay Forest Commission 1878, Vol. 4, Government Printing Press, Mumbai.

7. M. Sarin, ‘Why the ST (Recognition of Forest Rights) Bill 2005?’ Economic and Political Weekly XL(21), 21-27 May 2005, p. 2131.

8. MP Forest Department Survey – Data Settlement of Rights of Forest Dwellers till 2/12/2003.

9. Affidavit filed by MoEF on 21/7/2004 in I.A. No. 703 of 2000 in Writ Petition (Civil) No. 202 of 1995 (T.N. Godavarman Thirumalpad Versus Union of India and Others).

10. Forest Survey of India, Government of India, New Delhi, 1999.

11. Affidavit filed by MoEF, op cit., paras 10 to 12.

12. Ibid., para 27.

13. M. Savur and I. Munshi (eds) Contradictions in Indian Society, Rawat Publications, Jaipur, p. 88.

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