FW: Tribal Bill

[Guest guest]

Dear John,

 

I am forwarding a letter from my wife, Dr. Nanditha Krishna re the proposed

Tribal Bill.

We require all help to stop this disaster.

 

Thanks.

 

Chinny

 

 

Nankrishna [nankrishna]

Monday, June 13, 2005 5:51 PM

Dr.S.Chinny Krishna

Tribal Bill

 

 

June 13, 2005

 

 

 

Dear Friend,

 

 

 

You may be aware that the Ministry of Tribal Affairs has drafted the

Scheduled Tribes (Recognition of Forest Rights) Bill 2005 which aims to

confer greater rights on forest dwelling Scheduled Tribes. Our Centre has

been working with the tribals for over twenty years, and we are happy that

their existence is being finally recognised.

 

 

 

However, the Bill in its present form is disastrous for the environment and

the forests of India. I am therefore enclosing a draft of a letter to the

Prime Minister of India about this Bill. The Prime Minister must be made

aware that civil society is agitated about this Bill. I would be grateful if

you could go through the enclosed letter and, if you agree, send it in the

same format, or with any modifications you may like to include, on your

personal or institutional letterhead, to the following address:

 

 

 

Dr. Manmohan Singh

 

Prime Minister of India

 

South Block

 

Raisina Hill

 

New Delhi 110011

 

 

 

Fax: 91 11 2301 9545, 2301 6857

 

 

 

Or enter his website pmindia.nic.in and write to the prime minister.

 

 

 

In case you would like to see the Bill in the original, you can visit the

Ministry of Tribal Affair’s website www.tribal.nic.in.

 

 

 

I hope to have your cooperation in this bid to save the forests of India and

the fast-disappearing wildlife.

 

 

 

With warm regards,

 

 

 

Yours sincerely,

 

 

 

 

 

 

 

Dr. Nanditha Krishna

 

Hon. Director

 

 

============================================================================

===================

 

 

 

 

 

 

 

Dr. Manmohan Singh

 

Prime Minister of India

 

New Delhi

 

 

 

Dear Prime Minister,

 

 

 

Sub: Proposed draft Scheduled Tribes (Recognition of Forest Rights) Bill

2005.

 

 

 

The proposed Bill contravenes and debars the provisions of the Indian Forest

Act of 1927, Wildlife Protection Act of 1972 and Forest Conservation Act of

1980. This means that there is a licence to destroy the forests and

wildlife.

 

 

 

The Bill proposes to distribute forest land @ 2.5 hectares per nuclear

family, to be used for habitation or self cultivation for livelihood needs.

But, there is no nuclear family concept among tribes.

 

 

 

Only 20% or 68 million hectares is total forest land in India, of which less

than 17% has thick forest cover. India has to save the remaining forest

cover and try to increase it to 33%. This Bill will do the opposite. 8.16 %

of India’s population is tribal. 2.5 hectares to each family means 50

million ha or 73.52 % of India’s forest land. This will be the end of Indian

forests and wildlife, and will give a free licence to the timber and land

mafia.

 

 

 

The Bill also gives tribals access to biodiversity, in contradiction to the

provisions of the Biodiversity Act of 2002; rights in perpetuity; promises

the conversion of pattas or leases or grants of forest lands to titles and

forest villages to revenue villages. This is the death-knell of the forests

and of Indian wildlife.

 

 

 

The rivers of India originate in the forest. Destruction of the forests will

only deepen India’s water crisis.

 

 

 

Tribals must be helped to improve their lives. They can be employed as

watchers, forest guards, etc. and must have equitable access to the benefits

accruing from the forests. If they want to pursue agriculture, give them

good, productive revenue land. Tribals need livelihoods and not a licence to

be exploited by the land and timber mafia and corrupt officials who alone

will benefit by this Bill.

 

 

 

Please do not permit this Bill to be passed by the Indian Parliament.

Instead, please provide livelihoods for tribes based on their skills and

traditional knowledge.

 

 

 

Thanking you,

 

 

 

Yours faithfully,

 

 

 

[Guest guest]

I have written a letter to the Prime Minister. I hope other aapn members

will do the same.

 

 

 

[Guest guest]

Given below is the submission of Wildlife Trust of India to Ministry of

Tribal Affairs. The submission was made by the due date of 10th July 2005.

The submission was drafted by Advocate Ritwick Dutta with inputs by me.

 

Ashok Kumar

 

_____

 

SUBMISSION TO

 

THE MINISTRY OF TRIBAL AFFAIRS,

GOVERNMENT OF INDIA ON BEHALF OF THE WILDLIFE TRUST OF INDIA

ON THE DRAFT SCHEDULED TRIBES (RECOGNITION OF FOREST RIGHTS) BILL, 2005

 

Summary of Suggestions:

 

(a) The title of the bill needs to be changed to reflect its true purpose.

It should read as the (Regularization of pre 1980 occupation of Forest Land)

Bill, 2005.

 

(b) National Level and State Level Commission to be appointed to identify

the land in occupation of the Scheduled tribes.

 

© Before a pre eminent role is entrusted to the Gram Sabhas in the

recognition of forest rights, the role of tribal institutions such as the

District Councils in the North East should be examined first.

 

(d) The Bill should not override the provisions of the Wildlife

(Protection) Act, 1980. National Parks and Sanctuaries should be kept

outside the purview of the proposed bill.

 

(e) The Penalties provision should strengthened to reflect the true nature

of the damage to biodiversity.

 

 

General Comments

 

There can be no doubt that there exists a genuine problem of some of the

forest dwelling tribal communities who due to multiplicity of factors could

not get their rights recognized under the law and consequently face

harassment in the hands of the government departments. The recognition of

the right to the land which a tribal community has lived for generation is

not only a basic human right but also a constitutional right. The report of

Commissioner of Scheduled Tribes and Schedules Caste (29th Report-1987-1989)

dealt at length of the problem due to the non recognition of rights to

forests. In view of these concerns, the Supreme Court of India has been

hearing the matter concerning the settlement of rights in the case of Centre

for Environmental Law Vs Union of India. W.P 337 of 1995 as also in the case

of T.N Godavarman Thirumulpad Vs Union of India W.P 202 of 1995.

 

 

Unfortunately, despite its wide ranging implication, it seems that the whole

process of drafting was undertaken in a haste. It is still not known as to

whether the Technical Sub committee represented any group with " rich

experience and deep association " with the cause of environmental protection.

Further, no public consultation, meeting to our knowledge has taken place.

It is submitted that the subject matter of the proposed bill is clearly not

an issue of national security so as to be kept out of public debate. The

bill has been made available for comments only for a period of less than a

month. This is clearly insufficient time to comment on a bill of such wide

reaching implications. Infact, only the Bill has be put up for public

comments while the Rules are still not within the public domain. The

composition of the Sub Divisional level committee as envisaged in Chapter IV

is not know so also the District level Committee.

 

 

It is further submitted that the bill is largely based on the experience of

forest rights in the states of Orissa, Chattisgarh and to some extent of

Maharashtra i.e areas under Vth Schedule of the Constitution. It does not

take into account the situation on the North East and specially under

Schedule VI of the Constitution.

 

 

Further, the proposed bill seems to override the provisions of the Wildlife

(Protection) Act, 1972. By allowing for the continuation of forest rights as

mentioned in Chapter II, the bill allows for even prohibited activities

inside National Parks and Sanctuaries.

 

 

GENERAL SUGGESTIONS:

 

The Central Government should appoint a Tribal Forest Land Commission be

appointed with a multi disciplinary team comprising of tribal

representatives and experts in the field of Forest and wildlife headed by a

Judge of the Supreme Court. The Commission should be entrusted the task of

monitoring the identification of the pre 1980 families in occupation of

forest land.

 

The commission should have studied:

 

a)Aspirations of tribal and the socio economic status of the tribals;.

 

b) Current livelihood status of beneficiaries

 

c) Number of beneficiary nuclear families, and what do they intend to do

when children grow to adulthood and need their own land and dwellings.

 

d) Record current forest cover of the area which is to be given to them.

 

e) study the forest management by Tribal Communities in the North East

specially those under the Autonomous District Councils before handing over

some of the important state functions on the Gram Sabhas.

 

e) Perception of tribal towards wild elephants, tigers, leopards, bears and

other ferocious animals which inhabit that forest, and recent changes in

perception as opposed to historic and romantic perceptions.

 

 

Comments on Draft Statement of Objects and Reasons:

 

Objectionable statements:

 

" Forest Dwelling Tribal people and Forests are inseparable. One cannot

survive without the other "

 

This statement might be true so far as dependence of tribal people on forest

are concerned. It is certainly not true so far as 'forests' are concerned.

Forest does not need tribals to survive. Forests can survive independent of

tribals. In any case the protection of forests by tribals is in terms of

management and not an ecological requirement. Jharkhand and large parts of

Orissa for example have been converted to agricultural land, villages and

many instances into thriving townships. These scheduled tribals live without

any symbiosis to forests. The second sentence is completely wrong in stating

that " one cannot survive without the other. " Forests can very well survive

without human intervention whether tribal or non-tribal. Orissa has lost

something like 30% of its forests to agriculture only in last decade, all if

it through encroachment.

 

 

" Forests have the best chances of survival if communities participate in

its conservation and regeneration measures. Insecurity of tenure and fear of

eviction from these lands where they have lived and thrived for generations

are perhaps the biggest reasons why tribal communities feel emotionally as

well as physically alienated from forests and forest land "

 

This statement is also based primarily on conjectures although there is no

denying of the fact that community participation is essential for successful

conservation. Yet security of tenure by itself will not lead to

conservation. Examples are the forests in most of the North Eastern States

governed by Schedule VI of the constitution wherein security of tenure did

not lead to the conservation of biodiversity. This fact was highlighted in

the Report of the Expert Committee of the North East ( also called the

Rajamani Committee report) which observed that:

 

" 2.5.1 The Government owned Reserved and Protected Forest areas are

generally being conserved and worked under the prescription of working

plans...but rest of the forests are being subjected to heavy and unregulated

felling at the pleasure of the owners or contractors working in the area

after taking lease from the local owners, tribal chiefs and the District

council Authorities. The Arunachal Permit system in unclassed forest also

follows the same procedure. As no scientific silvicultural or yield control

is followed, the best seed bearer trees are being removed without nay effort

or investment for regeneration or seeding or planting of the areas....this

is the main reason for fall in the forest cover in the North Eastern States "

 

 

" The Act reinforces and seeks to utilize the rich conservation ethos that

tribal communities have traditionally shown and cautious against any form of

unsustainable use or destructive practices "

 

This is gross generalization of the tribal way of life. Not all tribal

customs nor all practices of tribal communities have rich conservation

ethos. The bill clubs all tribal groups into a single ethnic community with

similar practices. There is no doubt that many of the practices of the

tribal communities are unsustainable and destructive to biodiversity. The

bill talks of ancient manuscripts and scriptures without quoting them. The

one reference known to us, and quoted ad nauseum is from emperor Ashoka. His

purpose to protect forests was to get a steady supply of elephants for his

army before he converted to Buddhism. The reality today of course is very

different. Do we see today any examples of the rich conservation ethos that

tribal communities have traditionally shown " as stated in the bill? In north

east where the larger tracts of forests are owned by tribal councils. the

rate of deforestation is far higher than in the forests managed by forests

departments. In Arunachal Pradesh massive logging was ongoing at the behest

of businessmen from out side, till supreme court intervened to put a stop to

all these.

 

Comments on the Title

 

The title of the Act is undoubtedly part of the Act itself and it is

legitimate to use it for the purpose of interpreting the Act itself, and it

is legitimate to use it for the purpose of interpreting the Act as a whole,

and in ascertaining its scope <mid://00000555/#_ftn1> [1]. In view of the

importance of the title in the construction of the Statue, it is clear that

the title Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 does

not reflect the true purpose of the Act. The bill in its substance seeks to

regularize occupation by tribals of forest lands prior to 1980. However

this is not reflected in the title. The title should thus read: Scheduled

Tribes (Regularization of pre 1980 occupation of Forest Land) Bill, 2005

 

Comments on the Preamble

 

The Preamble of a Statute is a part of the Act (or Bill) and is an

admissible aid to the construction. Although not an enacting part, the

preamble is expected to express the scope, object and purpose of the Act. It

may recite the ground and cause of making the statue, the evils sought to be

remedied <mid://00000555/#_ftn2> [2] or the doubts that may be intended to

be settled. The preamble brings out the main sprit or reason for each

statute.

 

The basic assumption of the preamble is faulty.

 

" Scheduled tribes who are integral to the very survival and sustainability

of the forest ecosystem "

 

How the survival of forest depends on Scheduled Tribes is not clear. There

are forests even in India where no scheduled tribes exists.

 

" the recognized rights of the forest dwelling tribes include the

responsibility and authority of sustainable use, conservation of

biodiversity and maintenance of ecological balance "

 

From the perusal of the bill, it is clear that the prime intention of the

bill is to correct the " historical injustice " . However, the preamble tends

to give the impression that the Bill is a 'conservation' legislation whereas

in its pith and substance it is clearly a social welfare legislation. The

preamble mention of ecological balance and biodiversity conservation however

it does not define either 'sustainable use', biodiversity conservation' or

the like

 

MAIN PROVISIONS

 

 

 

 

SECTION 2

 

 

 

 

General Comments:

 

 

 

The bill makes frequent reference to 'biodiversity', 'wildlife' and

'sustainable use'. Unfortunately, it does not define the same. The section

on definition should clearly define the meaning of all these terms. Thus in

respect of 'wildlife' it should states that the word 'wildlife; occurring in

the Act should have the same meaning as provided in the Wildlife

(Protection) Act, 1980. Similarly, the word " biodiversity " shall have the

same meaning as in the Biological Diversity Act, 2002. Similarly,

" sustainable use " has been defined in the Biological Diversity Act, 2002 as:

 

 

 

" sustainable use " means the use of components of biological diversity in

such manner and at such rate that does not lead to the long-term decline of

the biological diversity thereby maintaining its potential to meet the needs

and aspirations of present and future generations

 

 

 

Section 2 definition:

 

It is not clear as to how " bonafide livilihood needs " will be distinguished

from " commercial purposes " . Bonafide livelihood needs include the right to

sale or barter for 'household purposes'. It is not clear as to where

'household needs' ends and 'commercial purpose' begins. Further, 'large

scale trade' and 'mercantile purpose' remains undefined'.

 

 

 

" Household needs " has to be defined. With increased exposure to material

needs, as there is no limit to what can constitute as household needs. .

 

 

 

2 ( c ) Forest Dwelling Scheduled tribes (FDST for short) definition needs

further clarity. The criterion of 'in and around' forest area is too vague a

term and needs to be further clarified. Objective criterions need to be put

in place to ascertain as to whether a community qualifies to be a " forest

dwelling Scheduled Tribe " .

 

 

 

(d) Forest Land

 

 

 

The definition of forest is too broad. The bill has to exclude National

Parks and Sanctuaries out of its purview in view of the fact that the

wildlife (protection) Act, 1972 has its own self contained provisions for

the settlement of rights in National Parks and Sanctuaries.

 

 

 

Chapter II

 

 

 

 

Rights of Forest Dwelling Scheduled Tribe

 

 

 

 

Extensive rights have been on granted on the FDST from ownership of minor

forest produce to the grazing. These are listed from sub clause (a) to Sub

clause (l) of the Clause 3.

 

 

 

The forest rights are too extensive as well as broad. Sub clause (m ) of

Clasue 2 of the Bill provides for the recognition of " any other traditional

rights customarily enjoyed by the FDST excluding hunting "

 

 

 

It is suggested that there should be an overriding clause stating that these

rights can be enjoyed so long as they are not in violation of any existing

laws for rhe regulation of the same. The Indian Forest Act, 1927 together

with the various state laws, the Wildlife (Protection) Act, 1972 have

restrictions on the grazing as well as other forms of resource extraction in

the interest of biodiversity conservation. The blanket acceptance of all the

rights will be in contradictions to the already existing conservation laws.

 

 

 

 

 

CHAPTER III

 

 

 

RIGHTS OF FOREST DWELLING SCHEDULED TRIBES

 

 

 

 

 

Sub clause 2 of Clause 4 is in contradiction to the provisions of the Forest

(Conservation) Act as it provides that the vetting and recognition of the

forest right will be before 25-10-1980 or such other date as the Central

Government may by notification specify.

 

 

 

It is clear that the bill provides no safeguard that encroachments after

1980 will not be regularized. All that is required is a simple notification

by the Central Government to change the date from 25-10-1980 to any other

date. This provision needs to be removed.

 

 

 

Further, the provision in sub clause (2) of Clause 4 needs to be modified.

Thus in place of the following provision viz:

 

 

 

" no member of forest dwelling scheduled tribe shall be evicted or removed

from the forest land under his occupation till the recognition and

verification process is completed in such manner as prescribed "

 

 

 

 

The following should be substituted

 

" no member of forest dwelling scheduled tribe shall be evicted or removed

from the forest land under his occupation till the recognition and

verification process is completed in such manner as prescribed and the

settlement of rights has not taken place under the provision of the Wildlife

(Protection) Act, 1972, the Indian Forest Act, 1927 and the respective State

forest laws and rules

 

CHAPTER V

 

OFFENCE AND PENALTIES

 

 

 

For the destruction of wildlife and another aspect of biodiversity by any

right holder , the proposed bill provides for a fine of Rs 1000 in case of

first offence and the derecognition of the forest right for such period as

decided by the District Level committee.

 

 

 

This provision is contrary to the provisions of the Wildlife (Protection)

Act, 1972 as also the Indian Forest Act, 1927 which has an elaborate

penalties for the violation coming offences against Wildlife as well as

felling of trees. Thus for example, for an offence against a Schedule I

animal a minimum imprisonment of three years and a minimum fine of Rs 10,000

is to be imposed (there is no upper limit for the fine to be imposed). This

is problematic in view of the following reasons:

 

 

 

? According to the laws for the interpretation of Statutes, if a

later statute describes an offence created by an earlier statute and imposes

a different punishment, or varies the procedure, the earlier statute is

repealed by implication <mid://00000555/#_ftn3> [3].

 

? Section 26 of the General Clauses Act provides that where an act or

omission constitutes an offence under two or more enactments, then the

offender shall be liable to be punished either or any of those enactments;

but shall not be liable to be punished twice for the same offence.

 

? Article 20 (2) of the Constitution directs that no person shall be

prosecuted and punished for the same offence more than once.

 

 

 

Conclusion:

 

The above mentioned suggestion is not an exhaustive list but merely

illustrative. The Draft bill aims at correcting an " historical Injustice " ,

however in its current form it is bound to create more confusion in the

field. The need is not to create more authorities but to make the existing

authorities function better. Much of the issue relating to the non

recognition of rights can be dealt though the procedure prescribed in the

Wildlife (Protection) Act, 1972 as well as the procedure for constitution of

Reserve Forests and Protected Forests. These must be followed in a time

bound manner. There is therefore an urgent need to bring into a cross

section of people into the debate including diverse tribal communities so

that a viable, realistic and ecologically sustainable solution can be worked

out on the issues concerning the rights of the forest dwelling scheduled

tribes.

 

 

 

Ashok Kumar 9-7-2005

 

Senior Advisor and Trustee

 

 

 

Vivek Menon

 

Executive Director

 

 

 

Ritwick Dutta

 

Legal Advisor

 

_____

 

<mid://00000555/#_ftnref1> [1] Lord Moulton in Principles of Statutory

Interpretation, G.P Singh

 

<mid://00000555/#_ftnref2> [2] Secretary, regional Transport authority Vs

D.P Sharma AIR 1989 SC 509

 

<mid://00000555/#_ftnref3> [3] Dharangdhara Chemicals Work Vs Dharangdhara

Municipality (1985) 4 SCC 92: AIR 1985 SC 1729