CHANGING a well entrenched status quo leads to criticism. The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, which is an attempt to settle tribal claims to forest lands by laying down a procedure for recognition and vesting of certain forest rights in forest-dwelling tribals, has not been spared. The political will for such a move is evidenced by the Common Minimum Programme adopted on 27 May 2004 by the UPA coalition.¹ While the announcement of the bill has been met with muted scepticism by the tribal community, whose expectations it has belied, and with complete cynicism by wildlife conservationists who believe that it will signal the extinction of the already dying tiger, it is likely that the bill will be introduced in Parliament’s upcoming monsoon session.²

The bill recognises and confers several traditional ‘forest rights’ of tribal communities including the right to hold forest land, but excludes the right to hunt. It also casts concomitant duties upon the beneficiaries to ensure the protection of forest resources. It should be reasonable to assume that such provisions would allay the fears of conservationists regarding the destruction of wildlife, especially tigers. Conservation critics, on the other hand, ignore the millennia of peaceful tribal-forest coexistence, choosing to maintain that their very presence will automatically degrade the habitat of the tiger and other wildlife leading to their extinction.³

No legislative effort can be flawless; the tribal bill is no different. However, it does signify a changed approach to conservation and is a step in the right direction. If implemented strictly, true to its legislative intention, there is no reason to assume that it will not ensure the protection of India’s forest resources. More importantly, India’s tribal communities whose livelihood is linked to the forest will no longer be alienated from their homelands, but allowed to assist in its conservation.

 

The modern protection of forests and conservation in India has turned on the principle of exclusion. This means that communities who have historically been a part of the forest and who are dependent upon it for their survival and livelihood have been evicted to make it pristine for flora and fauna. The enactment of laws to regulate forests, instead of managing their conservation, is a continuing legacy of India’s colonial past. The colonial state saw in the exploitation of forests the opportunity for wealth and thus created laws, not to preserve ecological integrity but to protect the state’s monopolistic access to forest resources. Forest-dwelling communities were evicted from their homes and livelihoods leading to unrest and agitation.

Independent India’s conception of development and national good has been no different, and has resulted in widespread environmental degradation and violent marginalisation of forest-dwelling communities. In the last twenty years however, a number of laws purporting to protect India’s ecological and environmental integrity have been enacted. This conception of the environment continues to see forests as preserves of nature necessarily devoid of human habitation and reiterates the state’s role as the monopolistic guardian. Thus, the Indian Forest Act, 1927 (‘IFA’), the Wild Life Protection Act, 1972 (‘WLPA’), and the Forest Conservation Act, 1980 (‘FCA’), have been premised on the misconception that any human interference in a forest ecosystem would lead to its destruction, failing to realise that tribal groups also form an integral and natural part of this ecosystem, living off the forest and preserving it.

 

The National Forest Policy, 1988, which outlined a policy statement on national conservation strategies, challenged this traditional view. Instead, it preferred to recognise forest-dwelling communities as primary stake holders in forests and involve them in the conservation process.⁴ At clause 4.3.4.2 the Forest Policy reads:

‘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 bona fide use of the communities living within and around forest areas, specially the tribals’ (emphasis added).

The policy statements, notifications and judicial affidavits of the Government of India after 1988 have consistently pushed this agenda forward.⁵ On 1 June 1990, the Ministry of Environment and Forests (MoEF) notified that the state was encouraged to take full advantage of the expertise of village communities and voluntary agencies for regeneration of degraded forest lands. Of crucial significance are the circulars of 18 September 1990 issued by the MoEF. These circulars suggest guidelines for state governments to contain encroachment, review disputed claims on forest lands, review pattas, leases and grants involving forest lands, convert forest villages into revenue villages and settle other old habitations.

In the 1997 World Wildlife Fund for Nature case, the Supreme Court mandated the completion of the rights settlement process within a one-year period. Two years earlier, the Supreme Court in Pradip Prabhu’s case had injuncted the eviction of people from forest areas pending the government’s completion of the settlement process. However, the Supreme Court’s involvement and obvious interest in forest conservation is evidenced by the T. N. Godavarman case, where a bench of the court meets every Friday to look into matters involving forests and has taken serious exception to moves to alienate forest land. It is in this context that the bill has been drafted.

 

Since its announcement, the bill has raised fears that India’s depleted and fragile forests would be subject to further destruction by the large-scale influx of tribal people. It is important to dispel this notion by emphasising two points. First, the bill only targets Scheduled Tribes who lived in forests located within Scheduled Areas before the Forest Conservation Act, 1980 entered into force. Therefore, only those tribal communities who lived in forests and were affected or evicted by the FCA can claim forest rights under the bill.

 

Not only is this an insubstantial figure, many of these people have continued to live in the forests pending the actual settlement of their claims. Those people, whether tribal or not, who have moved into forests after the cut-off date of 24.10.1980 will not benefit from the bill and may be evicted. In this regard, the bill merely recognises the de facto living conditions of a portion of the tribal population; it does not allow any influx and, on the contrary, will result in the removal of post-1980 settlers from forest lands. Moreover, the WLPA requires that, before notifying an area as a national park, all rights and claims to that land must be settled. However, final notifications under sections 18 and 24 of the WLPA have not been issued for many sanctuaries and national parks; and, a majority of tribal claims were neither examined nor settled. This bill corrects that injustice. Second, the long-peddled notion that tribal communities are intrinsically destructive to forests is wrong. On a list of detrimental pressures that India’s forests face today, tribal peoples would figure last; paling in comparison to the destruction that ‘modern’ development – mines, power plants, resorts and their ilk – has unleashed. On the controversy between forest, wildlife and tribals, Ramachandra Guha has written:

‘…[T]ribals and tigers have coexisted for centuries; it is the demands of cities and factories that have of late put unbearable pressures on the forest, with species after species being put on the endangered list. Tribals are being made the scapegoats, while the real agents of forest destruction – poachers, planters, politicians, profiteers – escape notice.’⁶

 

The bill dedicates an exclusive chapter to the enumeration of twelve main forest rights that the government proposes to vest with ‘forest-dwelling scheduled tribes.’ Section 2(c) defines this target community as those who ‘primarily reside in and around forests and includes… pastoralist communities.’ These include: the right to individually or collectively hold forest land for cultivation or habitation; usufructuary rights; the right to access minor forest produce; the right to graze livestock; rights over forest lands where claims are disputed; the right to convert informal pattas into legal titles; and, the right to access, protect and maintain traditional knowledge systems and intellectual property.

Wildlife conservationists who oppose this bill argue that it will result in the depletion of endangered species of wildlife, especially the tiger, due to hunting and destruction of habitat. These concerns have to be examined. The hunting of wild animals is expressly prohibited by section 9 of the Wild Life (Protection) Act, 1972 (WLPA). Section 11 of the WLPA allows hunting in only two situations: (a) with the written permission of the Chief Wild Life Warden, if the animal has become ‘dangerous to human life’ and property; and (b) in self defence.

The tribal bill, on the other hand, explicitly bars the traditional tribal practice of subsistence hunting on pain of de-recognition of land rights. On the question of destruction of habitats, it must be reiterated that the bill does not usher in an influx of tribals into forest areas, but simply recognises the land rights of those already living there before the cut-off date. Therefore, there can be no new pressures on habitat created by the bill; in fact, it will result in the eviction of people from forests who settled after the cut-off date.

 

Section 4(1) of the bill vests the above mentioned forest rights with forest-dwelling Scheduled Tribes ‘notwithstanding anything contained in any other law for the time being in force.’ This non obstante clause protects the act of vesting forest rights by overriding other laws, including the WLPA, FCA and the Indian Forest Act, 1927. The vesting of forest rights is thereby sealed from the prohibitions of other laws. This is reinforced by section 15, which states: ‘[s]ave as otherwise provided in this Act, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law…’. Therefore, the vesting of forest rights is protected by the first parts of both sections 4(1) and 15.

The other provisions of the bill, however, cannot derogate from, and are hence subordinate to, other laws in force, including the WLPA, FCA and IFA. Unless these statutes are dealt with and specifically nullified to the extent of this bill, the remaining provisions of the bill will be deemed to create non-forest activity and be prohibited. Furthermore, considering the strictures of the Supreme Court that prevent any further non-forest activity without permission, the bill should expand its non obstante clause in respect of any judgement, order or decree of a court.

The most important right that this bill recognises for certain tribal communities is that of land, for which every nuclear tribal family covered by the bill is given up to two and a half hectares in a forest area to hold, settle and cultivate. The right to have this land is subject to certain restrictions discussed, but complemented by the rights vested by section 3. Thus in order to enjoy these forest rights, forest dwelling tribal communities must ‘depend on the forests or forest lands for their bona fide livelihood means.’ Such needs are restricted only to the use of forest products for subsistence and self consumption, including barter and sale for household needs.

‘Bona fide livelihood needs’ are distinguished from ‘commercial purposes’, which result in profit or involve large scale trade. While the bill empowers tribal communities to the extent of their localised livelihood needs, it expressly forbids the exploitation of the forest or its products for commercial purposes. The fear in many quarters that the bill will open up forests for commercial exploitation through tribal landholdings is unfounded. To further protect both the tribals and forests from commercial exploitation and development-induced destruction, the bill, in section 4(3), makes forest rights heritable within tribal families but inalienable and non-transferable. Therefore, the land and other forest rights that tribal people gain from this bill cannot simply be taken away, not even by any coercive or fraudulent means.

 

The bill also prescribes certain duties that beneficiaries of forest rights have to comply with. These include the responsibility to protect, conserve and regenerate forests; prevent the destruction of wildlife, forests and bio-diversity; protect water sources; and, the duty to inform the gram sabha of any destruction or harmful practice. Section 8 goes a step further to penalise the violation of these conditions; and specifically, the unsustainable use of forests, destruction of wildlife or forests and the felling of trees for commercial purposes. The bill vests forest rights to tribal communities upon certain conditions. In doing so, the bill both describes these conditions in detail and lays out civil consequences for their infringement, such as de-recognition of rights, and criminal punishment, including fines.

 

The procedure for vesting rights in tribals through section 6 suffers from serious infirmities. While the gram sabha has been identified as the authority to settle claims, the evidence that may be produced has not been detailed. It is not clear whether the bill seeks to implement claims based only on deeds, documents and pattas, or even on clear oral evidence on possession of such land from before the cut-off date. There is no finality to the decisions of the gram sabha as they will be examined by a sub-divisional level committee. A tribal person can appeal the decision of the gram sabha to the sub-divisional level committee with provision for a further appeal to the district level committee.

However, there is nothing in the bill to clarify that the decision of the gram sabha and appellate authorities will be implemented by the state government. More seriously, the bill then prescribes a different procedure for the state government, which may appeal the decision of the gram sabha to a ‘competent authority’ appointed by the central government. The possibility of two appeals from the same dispute lying in different forums deciding the same issue is imminent. This confusion would be deepened if the two parallel authorities reach contradictory decisions. This dual mechanism, therefore, must be done away with to provide a single appeal process for all parties.

 

The scheme of the bill outlined above clearly shows that most of the fears of wildlife and forest conservationists are unfounded and ill-informed. The bill simply ensures that legitimate tribal claims to forests are recognised and accommodated while emphasising the need for participatory mechanisms for forest preservation. If the bill were to be accompanied with a more benign joint forest management approach, limiting the role of the forest department to mere supervision, and increasing the stakes of local communities in the formulation of policy, forest resources would be conserved better. Nevertheless, a compromise with wildlife conservationists may be worked out whereby the definition of ‘forest’ can be reworked to exclude national parks, thus preventing the application of the bill in such areas.

In sum, tribal communities ought not to be blamed for the degradation of the forest. They are a poor and often violently oppressed community fighting for the recognition of rights that are historically and essentially theirs. There are far more powerful actors with vested commercial interests who threaten forests but do not evoke the suspicion they deserve. Poachers and celebrity hunters are no less detrimental. Along with a corrupt and clueless forest department, these people pose a far greater danger to India’s forests. It has taken courage to recognise the historical injustice and deforestation that modern development and unbalanced conservation have created. This bill’s correction of the prejudice should not be confused with the very destruction that such narrow-mindedness has brought about.

 

Footnotes:

1. Pages 9 and 10 of the National Common Minimum Programme (27 May 2004), state:

‘The UPA will urge the states to make legislation for conferring ownership rights in respect of minor forest produce, including tendu patta, on all those people from the weaker sections who work in the forests.’

‘The UPA administration will take all measures to reconcile the objectives of economic growth and environmental conservation, particularly as far as tribal communities dependent on forests are concerned.’

2. See ‘Tribal Bill likely in Monsoon Session’, Indian Express, (7 July 2005). There are indications that the entire bill was scuttled from being introduced by the Ministry of Environment and Forests even though the Law Ministry had cleared it.

3. Malvika Singh, ‘May I Dwell in the Forest’, Indian Express, (7 May 2005). See also Prerna Singh Bindra, ‘Tribal Bill is Death Warrant for Tigers, Forests’, The Pioneer, (April 2005) which attributes comments to Valmik Thapar (a respected conservationist and a member of the Supreme Court appointed Centrally Empowered Committee to look into forest related issues) suggesting that the next generation of tribals have scant regard for forests and are disinterested in its protection.

4. See Clause 4.3.4.2 of the National Forest Policy 1988 – National Conservation Strategy and Policy Statement on Environment and Development (7 December 1988).

5. Sanjay Upadhyay, ‘Status Quo: How Long?’ Down to Earth (30 June 2005). Sanjay Upadhyay was a member of the Technical Support Group to draft the Bill and had access to the various statements made.

6. Ramachandra Guha, ‘The Authoritarian Biologist and the Arrogance of Anti-Humanism: Wildlife Conservation in the Third World’ in Vasant Saberwal and Mahesh Rangarajan (eds.) Battles Over Nature: Science and the Politics of Conservation (New Delhi: Permanent Black, 2003) at 146-147.