People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
December 24, 2006
A Big Step Forward For Tribal Rights
THE passage of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, 2006 constitutes a significant victory for tribal and forest dwelling communities and a big step forward in the struggle for tribal rights. There are crucial differences between the original bill moved by the UPA government and the final bill adopted by parliament. These differences reflect the often bitter struggle to ensure that the bill’s declared intention to undo the “historical injustices” that tribals faced, was not subverted. The Left and particularly the CPI(M) has played a crucial role in the struggle.
The original Bill in many respects would have become an instrument to add to that injustice. After discussions at different levels in the party and in meetings with party tribal activists, a critique of the bill was made and changes suggested. The party decided to utilise every fora to take the movement forward for acceptance of the changes required. Several campaigns, demonstrations, public meetings were held to popularise the issues. Meanwhile parliament had set up a Joint Parliamentary Committee (JPC) to study the Bill and make recommendations. The JPC played an important role particularly the chairman. Almost all the amendments moved by different MPs to strengthen the Bill including those by the three CPI(M) members in the committee Comrades Babu Rao, Bajubang Reang and myself were accepted and sent to the government. Once the JPC report had been tabled another big struggle had to be waged to ensure that the JPC recommendations were not sabotaged since it was reported that important sections of the Government were not in favour of the JPC report. The large mobilisations by the Party and tribal organisations, NGOs and other organisations who supported the JPC recommendations as well as the sympathetic approach of some members of the government towards the demands and issues raised by the sustained intervention of the CPI(M) persuaded the government to change its mind. In taking this most welcome step, the UPA government has ensured that the cruel evictions initiated by the NDA government through its notorious 2002 circular will be ended although there are many omissions the government has made from the JPC recommendations.
What are the major achievements as compared to the original Bill?
The cut-off year which was put at 1980 has been shifted to December 2005; all non-tribal traditional forest dwellers have been included in the Bill; the rights of tribal and traditional forest dwellers in areas declared as protected areas have been recognised; the process for identification of such protected areas has also been revised to ensure a more transparent process rather than the present fatwa regime of the Forest department; the ceiling of 2.5 hectares on land has been increased to 4 hectares; the rights to minor forest produce have been recognised; the role of gram sabhas in the process of identification of beneficiaries has been strengthened; the representation of representatives of the panchayati raj institutions has been included in all committees set up as authorities in the legislation; the important requirements of development in forest areas inhabited by tribals and forest dwellers has been specifically included in the Bill; all the penal provisions for punishment to tribals have been removed.
What are the major problems?
The one major problem in the final Bill is the definition of the term “traditional forest dweller.” The JPC it will be recalled had suggested that the traditional forest dweller should be defined as those who have been in the forest for three generations. No time frame had been specified. The understanding was that the adult claimant, his/her parents and at least one set of grandparents should have lived in the forest. This was necessary to ensure that the real encroachers could be removed. The government however has quantified the term three generations to mean twenty five years for one generation which for three generations would take it back to 1930. This is clearly wrong and unacceptable for which reason there were strong protests from the CPI(M) and some Congress MPs when the Bill was moved. The government has now agreed to bring an amendment to this date in the next session. The suggestion from the government side is 21 years per generation but it will require further discussion before the amendment is finalised. Only one thing has been assured that it will not continue as twenty five years but will be reduced.
Following the JPC report the government let it be known in the Left-UPA Coordination Committee that there were serious differences on the four major issues, namely, the cut-off date, inclusion of non-tribals, rights of gram sabhas and the ceiling issue. There were objections from two sides --- the Tribal Affairs Ministry which did not want inclusion of non-tribals in the Bill, and at the same time there were important sections in the government which did not want any change in the cut-off year on the grounds that it would lead to destruction of the forests.
In the discussions with the government, an official proposal was made that there should be two Bills, one for the tribals and one for the non-tribal forest dwellers. This would have been disastrous as it would have divided communities who have been living together amicably for generations; it would have led to a multiplicity of authorities; it would have given a handle for eviction of genuine forest dwellers. The CPI(M) strongly opposed this proposal. The Party also let it be known that unless the cut-off date was changed it would lead to mass evictions of tribals which the Party could never accept. It was conveyed to the government that it would be better to have no Bill at all rather than one which would provide the legal sanction for evictions of tribals. The Party also had discussions with the group of Ministers. Ultimately after discussions the major issues as enumerated above were agreed on.
The Parliament session was to end on Tuesday, December 19. The Bill was brought to Parliament only on the 15th afternoon and with the weekend coming up, it was clear that the Bill had to be passed on that day itself. It could then be sent to the Rajya Sabha and adopted before the session adjourned sine die on the 19th. However, the official amendments to the Bill incorporating the major changes were given to Lok Sabha MPs only fifteen minutes before the discussion started.
Clearly this was undemocratic and did not give MPs enough time to study the changes. The choice at that time was either to pass the Bill or to take the risk of not having it adopted and waiting for the next session.
In the meanwhile a move was made by some MPs from the north-east who signed a memorandum to the Prime Minister opposing the inclusion of non-tribal forest dwellers on the grounds that this would lead to inclusion of all illegal immigrants who were in occupation of forest land in the north-east. On the day the amendments were moved there were hectic efforts by this group to postpone the Bill. At one stage it was reported that the Tribal Affairs Ministry was also agreeable for postponement till the next session.
Then a meeting was held between us and the JPC Chairperson and we identified five areas where the Bill in its present form would have done injustice to the intended beneficiaries. These were (1) the definition of three generations as twenty five years per generation (2) the exclusion of the right of tribals and forest dwellers to fuel wood, stones, fish, weeds (3) the exclusion of the right to transport these outside the forest (4) the exclusion of the right of gram sabhas to list the beneficiaries under the Act (5) the inadequate number of representatives of panchayati raj institutions in the committees (6) the exclusion of protection of rights of those non-tribals who had been settled or given rights in the forest areas through government policy.
An urgent meeting was held even while the discussion on the Bill was going on in Parliament, with senior ministers involved in the earlier negotiations and all these concerns were accepted as amendments. The last mentioned point was to be addressed through a statement by the minister which would constitute a policy statement that rights already accepted would not be disturbed.
Shockingly, at the last minute in spite of this understanding, although the amendments were moved by the CPI(M) MP, Baburao, the Bill was rushed through by voice vote in the Lok Sabha, without the amendments. Later, some specious excuses were made to justify this.
INCLUSION IN RULES
Further discussions were held with the ministry. In the Rajya Sabha all the amendments were moved again by me. This time the Minster accepted them and all the accepted amendments would form part of the rules. Only the three generation definition would require a separate amendment to be brought in the next session.
In his response in the Rajya Sabha, this is what the minister said on some of these points: About shifting cultivation: “One of the key objects of the Bill is to recognise the culture of the tribal people. That (jhum) is part of their culture. We are not going to interfere in that..”
-- In respect of those who are already settled by government: “I want to make it crystal clear that those who are already settled through Government will not be disturbed. “
-- Fuel wood, stones and fish, weeds from water bodies: “I will put in the rules and it can be taken out through cycles and handcarts”
-- On the question of relocation of people from protected areas the requirement will be decided “only in consultation with ecological and social scientists familiar with the area.” Will be put in the rules
-- “I have agreed that the Panchayat will prepare the list of beneficiaries and will be included in the rules. Also I have said that the committee for final decision will be of six members of which three will be from PRIs.”
-- About the rights of those living in close proximity to the forests but not within forests: “If they have land outside they can come and claim it” (reference is to their right to minor forest produce).
BIG ACHIEVEMENT BUT STRUGGLE AHEAD
The big achievements and rights guaranteed by the legislation must be propagated in a most widespread campaign among tribals all over the country so that they need no longer fear eviction from the forest department. However, as has been stated, there are many areas where the struggle will have to continue to ensure that the loopholes and weaknesses in the legislation, are not utilised against tribals and forest dwelling communities.
Those who have been opposing the recognition of tribal rights in the forests have already threatened to go to the Supreme Court against the Act as it has changed the cut-off year from 1980 as decided by the Supreme Court to 2005. No doubt every effort will be made by these lobbies to sabotage the implementation of the Act. The JPC had recommended that this Act should be included in the ninth schedule of the constitution so as to protect it from litigation. However, this discussion is yet to take place. The CPI(M) and tribal organisations where our comrades work have a great responsibility to take forward the agitation to ensure protection of the rights of tribals and forest dwellers and the gains they have achieved through this legislation made possible due to united efforts of all concerned organisations, NGOs and individuals.