Tribal friendly rights and government apathy

3. Panchayat Extension to Scheduled Areas (PESA), Forest Rights Act and the tribal situation in India

“The interplay of tribal friendly rights and government apathy”

Introduction

The enactment of the PESA (The panchayat extension to schedule areas act, 1996) aimed for devolution of power to Panchayati Raj Institutions (PRIs) in the scheduled areas at the grass-root level. While, the FRA (Forest Rights Act, 2006) emphasizes on recognition of claim over the forestland of which the tribals have been inhabitants for generations. However, the legislation has been unsuccessful in mainstreaming the tribals; as well as there have been serious cases of violation creating uproar among the indigenous communities. Since, both the legislation have interdependence in terms of their functioning it becomes very important for one to have a clear understanding of both the acts and their implication in present settings. The paper is an attempt to discuss the so-called tribal friendly acts the PESA and the FRA. The paper starts with the historical background that lead to the formation of the acts followed by some basic features of the act laid down for identifying the basic right of the tribal population and their claim over rights. The discussion follows with a case study on violation of these rights.

Forests Rights Act 2006

Historical Background

The first enactment of the forest rights act was during the colonial periods in British India in the year 1865. The British government drafted the act to oversee the claims by different communities who used the forest traditionally for centuries to procure minor forest produce. On the other hand, the act empowered the British government to demarcate any forest as government forest and accordingly make rules for its management. In fact, the 1865 act termed the forest as worthless and the communities could use it unhindered. However, soon when the demand for use of timber in the railways rise the colonial government embarked upon the idea of bringing a new act that could curtail free use of forest produce. The previous act defined unhindered use of forest produce but the new act specified issue of unwarranted arrest of anyone found offending the new law. Thus, the new law exercised the full control of the state over the forests. Under previous act, any land that has green cover can be declared as a forestland.

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However; the provisions itself restricted the state to plant trees on a barren land and declare it a forestland. The earlier act also had no mentioning of principles on which a state or certain communities could manage a forest. Similarly, rights on hunting and grazing unmentioned under the previous act, which individuals were accustomed-to. Thus, the colonial government allowed the use of forest by the communities as a privilege but with no legal sanction. In this way, the colonial Government set out to draft a new law where it could exercise full control over a forest. Thus, under the new draft the categorization of forest made (reserved, protected or village) basing upon its valuable use for future and provisions made to safeguard the same. A restriction on grazing was mandated and protection of certain species of plants maintained by the new law to disallow the communities to withdraw minor forest produce including timber. Thus, the Indian Forest Act of 1867 came into being including all the provision where the state had full control over the Indian forest.

The new act also took under consideration of the communities that practiced shifting cultivation by settlements made by the appointed settlement officer on claims made. Thus, new set of provisions clearly demarcated the category of forest to be a reserve, protected or a village forest.

However, certain amendments were made to the existing forest acts of 1867, as amended acts of 1927 that included the provisions of imprisonment to violators of the previous acts. Provisions like levying of duties on extracting the timber produce out of the forest. Nevertheless, some consolation were also made on grazing of animals because of increasing conflict between the forest dwellers and the officials.

THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FORESTS RIGHTS) ACT, 2006

The ministry of tribal affairs implements the provisions made under the act. The act came into effect from 31.12.2007. The present act aims at recognizing the forest rights and occupations of the traditional forest dwellers who have been residing in the forestland for generations. The act also has provisions to legitimate the claims of present forest dwellers of their ancient lands whose rights could not be recorded during the colonial period and ensures the same through a framework. However, the right does not allow the unhindered use of the forestland. A traditional dweller can use the forestland for livelihoods only if sustainable for the forest and guarantees to maintain ecological balance as well as the diversity. Some amendments were also made in 2012 regarding the disposal and sale of minor forest produce with exemption from any fees or royalties.

Some basic provisions of the act are as follows:

• An individual if belonging to a member of a traditional forest dwelling community has the right to reside in a forestland for the purpose of habitation or any socio-economic activities like cultivation
• One can collect minor forest produce within or beyond the village boundary if a traditional forest dweller

• Community rights to fishing and grazing of cattle if belonging to nomadic or pastoral communities
• Provisions of community tenure for primitive tribes over a forest land
• For claims over a piece of land by conversion of pattas to titles by the local authority
• The act provisions conversion of old unsurveyed forest villages into revenue villages whether or not it had any previous evidence of any form of ratification
• Customary rights to traditional forest dweller over village forest
• Non-diversion of forest land that involves felling of not more than 75 trees per hectare for government structure like schools, hospitals, anganwadis or electric/telephone lines or any other government projects
• Prior permission of gram sabha if at all such structures are built for benefit of the people
• A community has to be resettled and equally compensated if displaced from a conserved or protected forest that to with prior permission of the gram sabha

Panchayat (Extension to Schedule Areas) Act 1996

Historical background of the act

The act was enacted as an extension to the 73^rd amendment act, for self-governance at grass-root level in schedule v and schedule VI areas. The formation of the schedule areas can be traced back to history during the colonial period with the delineating of extremely backward tribal regions into schedule areas. The areas were scheduled under the Scheduled District Act of 1874, further classification into two broad categories were made under the Government of India Act of 1935. The northeastern states of Assam, Meghalaya, Tripura, and Mizoram declared as schedule VI areas whereas the rest of the tribal areas in different states delineated as schedule V areas.

The government of India during the implementation of the Panchayati Raj Act found it difficult to exclude the schedule areas under its ambit. Since, the schedule areas act does not provide legal sanctions to the 73^rd amendment. There was also huge uproar since the Tribal Advisory Council and the Autonomous District Council in the schedule V and schedule VI areas respectively holds exclusive rights to administer tribal areas. Moreover, the respective council holds exclusive power to repeal or amend any legislation regarding the administration of the schedule areas under its jurisdiction. Thus, the government of India in 1994 set up a committee chaired by Dileep Singh Bhuria to submit recommendations on providing a framework for administration of the scheduled areas. All the provisions in the 73^rd amendment are applicable in schedule areas but only with certain exceptions and modifications.

The PESA provisions for democratic participation in decision-making processes at grass-root level, the basic features of the act are as follows:

• provisions for panchayat to safeguard the customary laws and traditional social and religious practices

• Rights for villages or habitation to manage its affairs according to traditional and customary laws
• Gram sabha to safeguard the traditions and customs of the people and resolve dispute according to the customary laws
• Gram sabha to approve all government developmental projects at village level
• Gram sabha to decide on the identification of beneficiaries for government schemes
• Proportionate reservation of seats in panchayat elections
• Gram sabha or panchayats to decide on land acquisition for development projects with proper rehabilitation of the affected person
• Panchayat or gram sabha to grant mining lease and prospecting license for minor minerals
• Concerned state government through panchayats and gram sabha to prevent alienation of land alienated illegally and restoration of such land
• to ensure management of minor water bodies

Case studies

The case of Niyamgiri tribes

A serious violation of Forest Rights Act and PESA can be seen in Niyamgiri where the Orissa government signed a joint agreement with the state owned Orissa Mining Corporation and the Vedanta Alumina to set up an alumina refinery. The region is the place of indigenous Dongaria tribes who have lived there for almost two centuries. The company plans to extract bauxite from the Niyamgiri hills; for its proposed alumina refinery at Lanjigarh in the Koraput district of Orissa. The hills are also their place of worship for generations, to a male deity “Niyam Raja Penu.” The Dongaria tribes consider themselves the descendants of the Niyam raja. Thus, the Niyamgiri hills are not just a place of cultural heritage to the tribal community but also of economic importance to the state government for its rich bauxite mines.

The government in its series of violation granted mining lease without the consultation of the local tribes. The government also hurried in giving environmental clearance to let the company to set up its unit without studying the environmental impacts of the project. The company in its part violated the basic norms of not conducting the gram sabhas or consulting the panchayats to carry on the project. Moreover, there is no concrete plan of rehabilitation and resettlement of the tribes facing displacement due to the project. The local tribes on the other hand have no plans to negotiate with the company, since they consider it as an invasion into their homeland. The government in its obsession to pursue economic desires violated the fundamental rights of its own citizens against all legalities. The central empowered committee of the Supreme Court also found lot of illegalities against the central government in granting mining lease to the company. Moreover, the region belongs to the scheduled areas thus it becomes a serious issue since the constitution mandates non-transfer of tribal land to non-tribal.

Apart from being rich in minerals, the region is also a place of numerous wildlife animals declared vulnerable. The Dongaria known for their primitive way of life are alien to the outside world. They have been practicing sustainable agriculture depending upon the forest for their livelihood. The name Dongaria itself derives its name from dongar that means ones whose agriculture land are at the hills.

However, the Supreme Court ruling on November 27, 2007 provided some respite to the agitating tribal by putting temporary ban on bauxite mining. On the other hand, it also provided the company with an escape clause to request for fresh proposal if it abides by all the guidelines pertaining to the law. Despite regular opposition, the government is adamant to its decision to give the company a free run. Repeated protest from the civil society and Ngo’s has also undeterred the government in its stance.

Nevertheless, the government looks keen to facilitate the company in whatsoever situation or allegation of violation of any constitutional rights.

Conclusion

Although, certain legislations have been implemented starting from the colonial to the post-independence era in the name of tribals they lacked basic understanding of the tribal rights. The acts and laws on one hand guarantees to safeguard the fundamental rights as enshrined in the constitution. On the other hand, the state itself comes up as the biggest violator of the rights of its citizen. The tribal communities have been subjugated to exploitation from time to time and their voices suppressed by use of force by the state. The acts as always termed to be tribal friendly and talks of promoting their rich cultural and social values along with an aim to mainstream them with various developmental projects. However, the state has always failed in its every attempt to listen the voices of the marginalized and still alienates them from not only their land but from worldly affairs.

References

1. Guha, R. (1983). Forestry in British and post-British India: A historical analysis.Economic and Political Weekly, 1882-1896.
2. Ray, S., & Saini, S. (2011). Development and Displacement: The Case of an Opencast Coal Mining Project in Orissa.Sociological Bulletin, 45-64.
3. Sahu, G. (2008). Mining in the Niyamgiri Hills and tribal rights.Economic and Political Weekly, 19-21.
4. Sharan, R. (2005). Alienation and restoration of tribal land in Jharkhand: Current issues and possible strategies.Economic and Political Weekly, 4443-4446.
5. Upadhyay, S. (2003). JFM in India: Some legal concerns.Economic and Political Weekly, 3629-3631.