People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
December 02, 2007
Notifiy Rules For Forest Rights Act Without Delay
IN an unprecedented action which could constitute contempt of parliament, the government has deliberately delayed notification of Rules for the “Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act while at the same time implementing one section of the Act without notification of the Rules. This has led to a change in the sequencing of the Act thus subverting the Act itself.
The Bill was passed unanimously by parliament in December 2006 and after receiving presidential assent was gazetted in January 2007. According to parliamentary procedure the Rules to enable implementation of the Act must be framed within six months. In spite of the recommendations of the Committee for Drafting of Rules submitted in May 2007 the Rules have not been notified. Information from the concerned ministry is that the Rules have been prepared but await the political sanction. This is extremely unusual because the Rules are just a matter of procedure and do not require political sanction since the Act has been approved by parliament. The delay in the Rules in this case is itself against the will of parliament to accord tribals their rights in forests.
Unfortunately the attempts of self-proclaimed guardians of the forests to dislodge the original inhabitants of forests, instead of being rejected outright, have found a sympathetic ear in high political circles. As is well known even at the time of the formulation of the Act there was a strong lobby that argued that passage of the Act recognising traditional tribal rights in the forest would destroy forests, wild life and bio-diversity. A totally false campaign was launched that the Act is a land distribution Act and three –fourths of forest land would be distributed for cultivation. The fact is that the Act is not a land distribution Act but only seeks to legally recognise through grant of pattas, land already held by tribals and non-tribal traditional forest dwellers, subject to an upper limit of 4 hectares. This involves less than two per cent of forest land. In contrast to the objections to even this small amount of land being recognised as belonging to tribals, over five lakh hectares of forest land were given to mining companies as also used for non-conservation purposes between 2001 and 2004 alone, but attracted no protest from the “guardians.” All these issues were discussed at the time of the formulation of the Act. Parliament rejected the argument that conservation required “cleansing” of the forests of all tribals in the Protected Areas. The Act was passed unanimously.
At present there are around 600 Protected Areas including tiger reserves, sanctuaries, national parks. Before the Act was enacted the Forest department under the Ministry of Environment and Forests (MOEF) had the right to declare any area a Protected area without assigning any reasons. Inhabitants in such an identified area who may have lived there for decades were suddenly informed that they had no rights in their land and were evicted. Since most of the inhabitants had no proof of stay they were also deprived even of the meager compensation package offered. The Forest Rights Act put an end to such arbitrary and authoritarian actions. It recognizes that within the Protected Areas in the country at present there may be some areas that are required to be kept inviolate for conservation purposes. To ensure this, while at the same time protecting tribals from the arbitrary evictions, the Act through Clause 2 (b) introduces the concept of “critical wild life habitat”. As the Act says “this means such areas in National Parks and Sanctuaries where it has been specifically and clearly established, case by case, on the basis of scientific and objective criteria, that such areas are required to be kept inviolate for the purposes of wild life conservation”. For this purpose the ministry of Environment and Forests must set up an Expert Committee “which includes experts from the locality which must have an open process of consultation…” Although the nodal ministry for implementation of the Act is the Tribal Affairs ministry, as far as identification of critical wild life habitat is concerned the responsibility is that of the MOEF. State governments have a crucial role in this identification exercise.
What happens to those who inhabit the areas which get identified as “critical wild life habitat’? The Act is very clear in its sequence of first, recognition of rights and then if required modification of the rights. The sequence is spelt out clearly in Sec 4 (1). The first step is that the central government must recognise and vest all forest rights in all forest dwelling scheduled tribes and all other traditional forest dwellers. In Sec 4.2 this is further clarified that “forest rights recognised under this Act in critical wild life habitats may subsequently be modified or resettled, provided that no forest rights holders shall be resettled or have their rights in any way affected for the purposes of creating inviolate areas for wild life conservation except in case all the following conditions are satisfied. Thereafter the Act lists conditions for resettlement so as to protect tribals from forcible eviction with no guaranteed compensation to which they have been subjected for decades. Through these clauses the Act successfully balances the needs of conservation with the fulfillment of the rights of tribals and other forest dwellers. It should also be noted here that as far as the other (non-tribal) forest dwellers are concerned, the conditions for their identification are very stringent as they have to prove residence in the forest of their families for three generations. Thus misuse by forest mafia to grab forest land in the name of other forest dwellers has been prevented by the definition itself.
The government has taken three actions which subvert
the Act. Firstly it has violated the procedure that Rules should be notified
within six months. This has enabled the Forest department to evict tribals from
land they have been cultivating for ages and which they are entitled to under
the Act. The Tribal Affairs minister in a reply to a question in the Lok Sabha
on November 23 said that he had received complaints of (1) eviction of the
tribals and forest dwellers from the land being
cultivated by them prior to 13.12.2005, by the Forest department of the states of Gujarat, Rajasthan and Madhya Pradesh, (ii) surveys of land in occupation of tribals by the Forest department in certain districts of Jharkhand with a view to prevent the process of giving pattas on the land to tribals, (iii) removal of tribal people from their dwelling places in the forest areas by the government of Madhya Pradesh despite enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and (iv) diversion of forest land in Dhule District for wind power projects by the government of Maharashtra. These are only reported cases. There are scores of cases where complaints made by tribals are not even accepted by the authorities. The delay in Rules has thus had a direct and adverse effect on tribals.
Secondly the non-notification of Rules is not due to any technical problems or delays. It is a result of political intervention. The leadership of the government and the UPA have been convinced by those who did not want the Act in the first place that to save the forests it is essential to identify the critical wild life habitats before the Rules are notified presumably to evict tribals. Thus in an unprecedented action the MOEF has issued a circular to state governments on August 30 to set up state level committees “so that task of identification/declaration of critical wild life habitat can be initiated and completed at the earliest.” The circular reads “Considering the urgency in this matter and to save time this ministry has decided to take some advanced action for declaration of critical wild life habitats.’ Thus even before the Rules for the Act are notified, the MOEF has started “advance action” of identification. If the Act that is essentially for the protection of tribals cannot be implemented because of the non-notification of Rules, then how can one section of the Act relating to critical wild life be implemented? Especially as the very concept of critical wildlife habitat is defined only in this Act, and therefore without implementation of this Act through notification of Rules it is not a legally recognised category for land classification. Thus the circular is not in keeping either with the letter and spirit of the Forest Rights Act or any preceding legislation.
The hurry to identify critical wild life habitats also undermines the democratic procedures mandated by the Act for such identification which includes setting up of expert committees, public consultation and a scientific study of areas on a case by case basis etc. According to official sources if these procedures are followed it could take up to two years to examine all Protected Areas, but the MOEF is trying to complete it as “soon as possible” which means that procedures will not be followed. So far only one state government has responded to the circular.
Thirdly, by doing so, the MOEF has changed the sequencing of the Act which clearly requires that the vesting of rights of all eligible forest dwellers is completed before such rights can be modified. The implementation of Sec 2 (b) is linked up with sub-sections (1) and (2) of Section 4 which pertain to recognition of all forest rights, which is one of the most operative parts of the Act. Hence implementing Section 2 without implementing Section 4 is clearly malafide and a violation of the letter and spirit of the Act.
These issues were raised with the prime minister by a delegation of twelve members of parliament cutting across party lines, who were members of the former Joint Parliamentary Committee which had been formed for the finalisation of the Act. They included Kishore Chandra Deo ( Chairman of the JPC) Brinda Karat, Giridhar Gamang, C K Chandrappan, Jochim Baxla, Rameshwar Oraon, Dr Radhakant Nayak, Dr M Baburao, DrTushar Choudhari, K C Singh Baba, Bagun Sumbrai and Biren Engti. The prime minister heard the delegation and said that he was unaware of the circular issued by the MOEF. He said that he would examine the matters and assured early notification of Rules.
Tribals have fought a hard struggle for recognition of their rights. The Forest Rights Act is an important step towards addressing the historical injustices tribals face. It is necessary to take the struggle further to ensure notification of Rules so that the gains from the Act are not sabotaged.