Key issues for analysis in the Bill

The evolution of Indian forest policy

Godavarman and the eviction drive

The Cabinet recently extended the cut- off date for vesting and recognizing forest land rights of the tribal community from 1980 to December, 2005 following the recommendations of the Joint Parliamentary Committee. This was because the bill in its original form did not specify the kind of evidence that FDSTs would require to prove their occupancy of forest land before 1980. Although states such as Maharashtra have adopted more effective procedures than just documentary evidences (oral testimonies, evidence of elders of the village etc.) for verifying claims, it is not mandatory for every state to adopt such practices. Therefore, there might be a case for specifying a set of admissible evidences in the Bill itself. Also, it was unlikely that FDSTs would have the required documentary evidence to prove their occupancy over forest land before 1980. Thus, in order to minimize evictions, a case could be made for settling the claims of FDSTs on the basis of current occupancy of forest land.

Will the Bill further deplete Indian forests and wildlife?

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. The main challenge of the Bill is to harmonize the potentially conflicting interest of recognizing forest rights of FDSTs while protecting forests and wildlife resources. There are three main streams of thought regarding this issue. Some experts say that tribal communities have lived in forests for centuries, and granting them the formal right over forest land is just undoing a historical injustice. On the other extreme, some conservationists say that certain species of animals (such as the tiger) cannot co-exist with humans, and there is a need to reserve at least some parts of forests to conserve these species. They also say that increased human habitation in forests will cause depletion of forest cover, resulting in significant ecological costs. A third view is that traditional forest dwellers help in preserving forests, and giving them land rights would actually help in ecological conservation. However, there does not appear to be any clear evidence to conclusively support any of these views.

In essence, the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, is merely 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. The bill, as introduced in Parliament, only targeted those Scheduled Tribes who lived in forests located within Scheduled Areas before the Forest Conservation Act, 1980 (FCA) entered into force. Now, however, after the recommendations of the Joint Parliamentary Committee, the cut-off date has been extended to December 2005. It is apt to conclude that the bill does not sanction any influx of tribal population into forests. It will result in the removal of post-2005 settlers from forest lands.

Moreover, the Wild Life Protection Act (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 have not been issued for many sanctuaries and national parks; and, a majority of tribal claims were neither examined nor settled. Moreover, many of these people have continued to live in the forests pending the actual settlement of their claims. This bill corrects that injustice. The bill also finally signals the rejection of the policy of excluding tribals from forest lands. 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.

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. But for the rights vested under section 4(1) of the Bill, the rest of it will be subordinate to the operation of the WLPA.

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, as mentioned earlier, it will result in the eviction of people from forests who settled after the cut-off date.

Rights and duties under the bill

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.

However, other communities who depend on the forest for survival and livelihood reasons, but are not forest dwellers or Scheduled Tribes, for instance in large sections of Chattisgarh and forest tracts of Uttaranchal, are excluded from the purview of the Bill. This could lead to large-scale eviction of such people and increase social tension among the various forest communities. The Bill also specifies that FDSTs would be granted forest rights only in places where they are scheduled. However, such a clause could lead to denial of rights to tribal communities on the ground that they do not reside in the area where they are scheduled even though many tribal people have been displaced due to development projects and creation of protected areas.

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.

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 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. However, the lack of clarity with respect to terms likes ‘livelihood needs’ might lead to protracted litigation and delays in implementation.

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.