People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
September 03, 2006
CPI(M) Concerned About Delay In
Enacting Tribal Forest Rights Bill
The following is the text of the letter written to prime minister Dr Manmohan Singh by CPI(M) Polit Bureau member and MP Brinda Karat on August 29, 2006.
I WRITE to express our deep disappointment and concern at the failure of the government to bring the Scheduled Tribes (Recognition of Forest Tribes) Bill 2005 in the just concluded session of Parliament. The Joint Parliamentary Committee (JPC) had submitted its unanimous recommendations over three months ago. I along with other colleagues had raised the matter in parliament requesting for an explanation for the delay. The chairman of the Rajya Sabha taking serious note of the issue had allotted time for a discussion for the following day. If this had been held, more light could have been shed on the government’s position but as it happened the House was disrupted by the opposition.
It had been decided in the UPA-Left coordination committee meeting of July 22 that the government would hold talks on the Bill with the Left parties. In the absence of any such discussions I would like to reiterate the understanding of the CPI(M) on the four JPC recommendations on which the government has expressed its reservations in the July meeting, namely (1) extension of the cut-off year from 1980 to 2005 (2) the inclusion of non-tribal traditional forest dwellers in the ambit of the Bill (3) removal of the ceiling of 2.5 hectares and (4) extension of rights of gram sabhas in deciding the beneficiaries. You will kindly appreciate that these taken together are crucial to the JPC recommendations without which the Bill will not undo but add to the injustices suffered by tribal communities. In fact these recommendations are in tune with the assurance given in the UPA government’s Common Minimum Programme namely “Eviction of tribal and other forest dwelling communities from forest areas to be discontinued.” (section on Scheduled castes and Scheduled tribes).
Apart from the moral and justice-based premises of the JPC recommendations, which I need not repeat here, I would request you to kindly refer to the government’s and specifically the Ministry of Environment and Forests (MOEF) guidelines and circulars from time to time which reflect positions already accepted and implemented by the government which are similar to the recommendations of the JPC. I enclose a note on these.
I would also like to draw your kind attention to the recently passed Wildlife Protection Amendment Bill. The JPC recommendations on settlement of rights of tribals and traditional forest dwellers in protected areas and the process of identification of “core” and “buffer” areas have been to a certain extent incorporated in the official amendments moved by the MOEF which had been suggested by us. The amendments strike a balance between the needs of conservation and the rights of local communities. This is welcome and should strengthen the process of resolving the reservations that the government has on the JPC recommendations.
There is a misinformed view that the JPC recommendations are against conservation and protection of India’s wildlife. A careful study of the recommendations make it clear that the JPC sets out a regime which while protecting the rights of tribals and traditional forest dwellers differentiates between the two, keeping the focus on tribal rights. It holds no quarter for encroachers who have exploited the wealth of the forests for private commercial gain. Any delay in the passage of the Bill with the inclusion of the JPC recommendations will not only be an injustice to tribals but will also help the real encroachers who continue to enjoy benefits they have no right to.
I request you to reconsider the issues at hand and ensure that the all party recommendations of the JPC are accepted and implemented by the government which will be to its credit. (End)
NOTE ON ACCEPTED POSITIONS OF GOVT ON TRIBAL AND FOREST DWELLERS RIGHTS
THE year 1980 as cut-off year was first suggested by the Ministry of Environment and Forests (MOEF) in a circular on 18-9-1990 which directed State Government to “ settle disputed areas, convert forest villages into revenue villages and regularize pre-1980 eligible encroachments as a one time dispensation.” This regularisation extended to all forest dwellers tribal and non-tribal. Moreover no ceiling was put on regularisation of land. However in eleven years only 3. 74 lakh hectares of land was regularised in eight states. The Supreme Court on November 23 2001 banned further regularisation of encroachments. The court made no differentiation between tribals and non-tribals. The MOEF through its circular dated 30-10-2002 reiterated that the 1990 guidelines for regularisation of pre-1980 encroachments still stands. On 3-2-2004 and 5-2-2004 the MOEF issued further circulars shifting the cut-off year from 1980 to 1993. In extending the cut-off again no differentiation was made between tribals and traditional forest dwellers and no ceiling was put. However once again the Supreme Court intervened and stayed the said circular on 23-2-2004. The Court also directed governments to clear all post-1980 encroachments which was calculated at around 14. 85 lakh hectares. Within a year 1.52 lakh hectares of land was cleared. This led to great hardship as genuine forest dwellers including tribals were also evicted. After the UPA government came to power MOEF issued another circular on December 21, 2004 which stayed all evictions on the grounds that genuine rights holders were also affected.
From these facts the following points emerge:
The rights of non- tribal traditional forest dwellers have already been recognised by government at least until 1993.
3.75 lakh hectares has already been regularised for pre-1980 forest dwellers tribal and non-tribal.
The land so regularised has no ceiling but was done on an “as is where is” basis.
The cut-off year of 1980 has itself been shifted by government to at least 1993 which means that 1980 is not a sacrosanct date for the government.
Government has acknowledged difficulties in distinguishing between the different sections occupying land.
Government’s position differs from that of the Supreme Court.
As can be seen from the above, the JPC recommendations on which the government now has reservations actually emanate from the positions taken earlier by the government itself. Moreover to use the Supreme Court orders as reason to keep 1980 as cut-off year is also untenable since Government has in practice already moved beyond that. But it is significant that the JPC has upheld 1980 as the cut-off year for all non-tribal traditional forest dwellers as suggested by the earlier government circular as well as the Supreme Court. In fact the JPC recommendations are even more stringent as it mentions that all “traditional forest dwellers” to become beneficiaries under the proposed law have to prove they have lived in the forests for three generations. It was reported to the JPC that in some States as much as 36 per cent of the forest dwelling communities comprise scheduled castes and other most backward castes. It was also pointed out that in some cases whereas the community was recognised as tribal in one state it was termed as Scheduled caste in another. The JPC for the first time has defined traditional forest dweller which will also help to evict the real encroachers. If the government now wants to evict all non-tribal traditional forest dwellers pre-1980, going back on its own positions by not including them in the Bill at all, the consequences will be disastrous if not dangerous and will lead to widespread upheavals all over the country.
The JPC recommendation to extend 1980 cut-off year till December 2005 is not a blanket extension but limited only to tribals. What is the calculation of the amount of land involved? According to statistics given to parliament as present 13.43 lakh hectares of land is identified as “encroached” post-1980. It could be reasonably assumed that of this land tribal held land would not be more than half of this which is an infinitesimal amount, lower even than one per cent of the total forest land and a very small token to meet the grand aim of redressing historical injustice to tribals that the Bill sets out to do. In other words the JPC recommendation will enable government to implement the Supreme Court orders for post-1980 evictions for about half of the land encroached by non-tribals, which the government has not yet been able to do. But even assuming that the amount of land held by tribals could be more than the estimate, a Bill to enhance tribal rights can not and should not become an instrument to evict tribals which is what is going to happen, as past experience shows, if 1980 is kept as the cut-off year. There is little documentation with tribals to prove occupation. Lakhs of tribals are being displaced from forest land due to various projects. Considering that in just five years from 2001 to 2006 as much as 5.73 lakh hectares of land has been converted for “non-forestry” purposes by government (Expert Committee report to the Supreme Court) it would be extremely unjust and unfair not to regularise tribal held forest land.
As mentioned earlier there has been no ceiling put on 3.75 lakh hectares of land already regularised either by the Supreme Court or by the government. To introduce a ceiling now would therefore clearly be discriminatory. Secondly it is well known that tribal held land in the main is dependent on rain, has low productivity and is usually 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 would be unjust. Thirdly the concept of “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 in property therefore the term “nuclear” would have to be defined in terms of any “adult” son or daughter. With this proviso instead of the Bill being one aimed at regularisation of existing occupation, it would turn out to be a forest land distribution programme which is certainly not the intention of the Bill. Fourthly, to take away land in the name of ceiling implementation that tribals have traditionally owned would lead to widespread protest that would defeat the very purpose of the Bill. Since again, not much land is involved there is no reason to insist on a ceiling. No fresh land is to be distributed only existing occupation is to be regularised on an “as is “basis as was done earlier.
As far as gram sabha issues are concerned much of the forest land comes under the fifth and sixth schedule areas. Laws governing these areas have given substantial rights to tribal communities and gram sabhas concerning a range of issues. Indeed representatives from the north east have expressed concern that rights that they already enjoy over their land should not be circumscribed by this Bill. Among the powers given to gram sabhas under the Panchayat Extension to Scheduled Areas Act 1996 (PESA) is that of identification of beneficiaries for Government programmes The JPC recommendation to uphold the right to identify beneficiaries is in tune with this right. However there is a clause included in the JPC recommendation which provides a role at the district level for a committee comprising of various government department representatives as well as tribal representatives etc to examine any disputed claims. The JPC recommendation on rights of gram sabhas give no new decision making rights but only reiterate rights already legally recognised though perhaps not enjoyed. The UPA government has expressed its commitment to the processes of decentralisation and should not take away the rights of gram sabhas.