Survival at stake

WOMEN OF THE Saigata community in Maharashtra collect non-timber forest produce. They help in the regeneration of forests. - ASHISH KOTHARI

The forest rights Bill is an important step in the struggle to reverse the historical marginalisation of tribal people.

THE passage of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, 2006, on December 18 is an important step in the struggle to reverse the historical marginalisation of the tribal people of India. The Scheduled Tribes, constituting about 8.4 per cent of the population, have been denied access to benefits from land and forests by both the medieval and the modern state, which encouraged landlords to settle on fertile agricultural tracts. Thus, the displacement of tribal people into forests was not a colonial phenomenon alone, but British imperialism accentuated it by setting up state monopoly over forests. As a consequence, a centralised and often autocratic forest management came into force in India. This played an important role in converting tribal farmers and forest-produce collectors from producers into wage labourers.

It is not as if these developments were uncontested by tribal people. Early resistance movements for land and forest rights were led by tribal elites whose politics reflected the communitarian identity of yesteryear. By the first quarter of the 20th century, several areas saw communist-led tribal mobilisations, which contextualised the demand for land and forest rights in the wider structure of semi-feudal and capitalist exploitation and forged a broad alliance of such people for their rights.

These pressures forced the Indian ruling class to set up welfare mechanisms for tribal people. Independent India attempted to set up mechanisms that would democratise community institutions and allow tribal people to shape their own destinies through the creation of the Fifth and Sixth Schedules on the Constitution. However, the development paradigm that guided the natural resource policy ensured that colonial forest laws still governed management practices.

Thus, Nehruvian panch sheel, repeatedly quoted by Minister of Tribal Affairs Paty Ripple Kyndiah during the debate in the Lok Sabha, unleashed its own contradictions, which continued to deprive tribal people of access to land and forest resources. Instead, the displacement they faced as a result of large projects initiated by the state showed that, broadly speaking, the poorest tribal people were victims rather than subjects of mainstream economic development.

But, more importantly, the contradictory forces unleashed by state policy saw a new phase of struggle for tribal rights, which was dominated by organisations of neo-Gandhian and radical environmentalist persuasion. These movements, which were a series of local-area-level struggles for land and forest access, argued for an alternative form of forest management whose main principle would be customary access and community control. This naturally meant that the state would need to loosen its hold over forests and create space for informal systems of management, which earned the name `community forestry'.

But this alternative understanding faced a serious challenge in the wake of neoliberal economic reforms where the pattern of state withdrawal has been guided by corporate interests and the easing of environmental regulations in the name of donor-funded "community forest management". At the same time, the burgeoning agrarian crisis and the weakening of social welfare measures led to increasing hunger deaths, land alienation, migration and the threat of displacement of tribal people. In this context the challenge is twofold: one, to ensure access to land and forest resources for providing livelihood security and, two, to democratise forest management in a manner that counters corporate-led development.

The forest rights Bill was introduced in this context after a vicious debate between tribal rights activists and conventional conservationists who argued that such a Bill would destroy all forests. Supporters of the Bill stated that it would be a landmark piece of legislation to correct the historical `injustices' that had led to tribal deprivation.

Many tribal people who could not prove that they were living in forests before October 25, 1980, had been termed "encroachers" in the wake of the Forest (Conservation) Act, 1980, and an eviction order had been served on them in May 2002. It was argued that the legislation could avert this situation. The Bill proposed the vesting of 14 different rights over land and forest produce on tribal people. The Bill was also seen as a good opportunity to debate and democratise the nature of forest management in order to meet the needs of local people.

The original Bill drafted by the government introduced the role of the gram sabhas in settling rights, and this was seen as a step in the right direction. Furthermore, it was seen as the first expression of intent to recognise the rights of the `victims of development', and the full potential of doing this was to be explored.

Thus the Left parties and tribal rights organisations built up pressure to expand the scale and scope of the Bill in order to attempt structural changes in favour of local forest-dependent people. The Joint Parliamentary Committee (JPC) set up to look into the Bill took on board several points made by activists, experts and mass organisations.

First, it recommended that the cut-off date for the settlement of rights should be extended from October 25, 1980 to December 13, 2005, the date on which the Bill was first tabled in Parliament. This was done in order to include those who had legitimate rights but had been termed "encroachers". This would help negate the adverse impact of the Forest (Conservation) Act, 1980, whose provisions were loaded more in favour of industry than local people. The Bill was now to include forest-dwellers who lived inside or "in close proximity to the forest".

Second, it recommended the inclusion of non-Scheduled Tribe "traditional forest dwellers" within its ambit as long as they had lived in the forest for three generations. This was an important point because many pastoralists, non-Scheduled Tribes, denotified tribes and Scheduled Castes are dependent primarily on forests and live in the same spaces as the Scheduled Tribes. Their exclusion would not only be unjust but also create new social tensions and conflicts in these areas. The Bill would henceforth be called "Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, 2006.

Third, though the original Bill had recommended the inclusion of national parks and sanctuaries, there was strong pressure to exclude them from the scope of the Bill. The JPC made a bold attempt to strengthen the provisions of this section by introducing an independent and participatory scientific process, by which "critical wildlife areas" would be identified and relocation from them, if necessary, would take place on mutually acceptable terms.

Fourth, the JPC strengthened the democratic process and the rights of the people by making the gram sabha the "final authority" in the settlement of local rights. It also made other committees more representative. Moreover, the gram sabha was defined according to the rules of the Panchayat (Extension to Scheduled Areas) Act, 1996.

Fifth, the JPC introduced new provisions to recognise the rights of displaced and rehabilitated people. It also made the consent of the gram sabha mandatory for the diversion of forest land for non-forest purposes, in compliance with the Samata judgment of July 1997. (A three-Judge Bench of the Supreme Court, delivering its verdict on a petition filed against the Andhra Pradesh government by Samata, a non-governmental organisation, declared null and void all leases to private mining companies in the Scheduled areas and held that gram sabhas shall be competent to safeguard and preserve community resources.) This provision was significant in the context of a great push by the Ministry of Environment and Forests (MoEF) to open up forests to the corporate sector through the new Environment Impact Assessment Notification of September 15, 2006.

The MoEF had itself estimated the number of development projects since 1980 to be 11,282. The conservative estimate of displaced tribal people is 8.53 million, which constitutes about 72 per cent of all displaced people.

Sixth, the JPC recommended the inclusion of the right of multiple land use for people doing shifting cultivation, the recognition of the rights of communities to conserve their forests, and the removal of the land ceiling of 2.5 hectares for land rights. It said that the settlement should take place on the basis of actual holdings and that all rights should be registered jointly in the name of the man and the woman. It also recognised the right of households headed by women.

Lastly, the JPC recommended that the people's right to development be recognised through this proposed Act. More importantly, it recommended the formation of a price commission to set and ensure a minimum support price for minor forest produce: a long-standing demand of the communist-led tribal organisations.

The limitation of the JPC report was that it did not take into account issues relating to the ecological health of the resource and fringe area development. These are essential in order to ensure the long-term sustainability of tribal livelihoods.

The recommendations of the JPC were the result of the united effort of the Left parties, their mass organisations and tribal rights groups to influence the legislative process. The potential and scope of the Bill was thus expanded, not by the government but through the pressure of these movements and their representatives in Parliament. This also explains the resistance put up by the Group of Ministers, set up by the Prime Minister, and the state machinery to accepting these recommendations in their entirety. Several suggestions were made to change the basic structure of the JPC-reported Bill.

After a lot of pressure from its Left allies and protests by tribal rights organisations, the United Progressive Alliance (UPA) government was forced to bring the JPC-reported version of the Bill in Parliament on the penultimate day of the session but not without some crucial government-sponsored amendments. The hurriedly passed and amended Bill is not without its positive features, but the biggest achievement is that the UPA government has been forced to work within the framework set for it by the JPC.

The Bill accepts the extension to December 13, 2005, as the cut-off date for the settlement of rights. It also includes the non-Scheduled Tribes within its scope, thereby recognising that the socio-economic cohesion of the tribal areas depends on the unity between the Scheduled Tribes and the non-Scheduled Tribes. In another major achievement, it, for the first time, recognises the right of the people who were displaced and rehabilitated before the agreed cut-off date and legislates against the diversion of land from national parks and sanctuaries, particularly when people have been relocated from them.

The Bill accepts the JPC recommendation of provisions for the right to development and increases the land ceiling from 2.5 to four hectares a family. Thus, it would appear that in terms of the basics, the forest rights Bill meets the criteria of its protagonists when they set out to increase its scale and scope.

But on closer examination it is evident that the neoliberal state has made some fundamental changes in the JPC-reported Bill through the insertion of limiting provisions in the fine print, thus using state power to protect the interests of the forest bureaucracy, conventional environmentalists and industry.

The first evidence of this is the definition of the term "forest dwellers" as people who "reside in forests", and excluding people who live in "close proximity" to forests. Effectively, this means the primary beneficiaries are the people who live in recorded forest villages, numbering approximately 3,000 according to the MoEF. How the rights of those living in "unrecorded forest villages" will be settled has been left unanswered even though the Minister of Tribal Affairs assured the House that those "settled in forests by the state will not be disturbed".

In a further clarification about those living near forests, the Minister said if people lived outside the forest "but had land inside they could come and claim it" as their right. This statement is problematic as it can be used by absentee landlords to claim land on the one hand, and does not consider the plight of poor, landless tribal and Dalit labourers who live outside but depend seasonally on forests. The government has made no assurance on the plight of these people.

The second major change in the structure of the Bill is the explanation inserted in the clause concerning the eligibility criteria for recognising the rights of non-Scheduled Tribes. While accepting the condition of residence in forests for three generations, the Bill defines one generation as equal to 25 years.

This means non-Scheduled Tribes will have to prove that they have lived in the forests for at least 75 years, or since 1930, if they are to benefit from this legislation. If oral evidence and spot verification are not considered admissible evidence of residence, then the government will be forced to depend on colonial records for the settlement of rights. As in the past, in the future, too, this will greatly limit the number of people who can avail themselves of the provision in the Bill.

Further, the divisive potential of this provision is evident from the fact that the Bharatiya Janata Party has asked for the eviction of `Bangladeshi immigrants' from forests, giving the problem a communal colour.

The third change the government made is with regard to the definition and powers of the gram sabha. Now the gram sabha has been altered from a "hamlet-based panchayat" to a revenue panchayats, which in many areas is dominated by upper castes in the non-Scheduled areas. The government has also ensured that the gram sabha is no longer the final authority to settle rights (as recommended by the JPC) by giving the sub-divisional committee this power. The sub-divisional committee has only three panchayat representatives and no representation from grassroots movements and independent experts.

The government, however, has been careful to state that the status power of the Sixth-Schedule areas in the northeastern region will be maintained even under this Bill. Further, all provisions relating to "independent assessments" of "critical wildlife areas" and "relocation" on the basis of mutually agreed terms have been deleted, giving the government the power to decide the process. This is a dilution of the norms and principles set out by the JPC.

The third change that the government has made is in the nature of rights granted under the Bill. Fuel wood, bamboo, stones and so on have been kept out of the definition of minor forest produce, and the Bill is silent on the right of multiple land use of people doing shifting cultivation. Further, the right to transportation of produce from national parks and sanctuaries has also been tampered with.

Finally, the clauses making the gram sabha's consent mandatory in the case of diversion of forest land for non-forest purposes and ensuring a minimum support price for minor forest produce have been deleted as they hindered the penetration of market forces into tribal areas. During his reply to the debate in both Houses, the Minister assured the members that rules and guidelines would take care of these concerns and he had an "open mind" on further amendments once the law was operational.

Clearly, the Bill sparked a contest between competing visions of forest management and conservation. The alliance between tribal rights organisations and the Left parties and their mass movements gained some ground in its endeavour to question centralised state control over forest conservation and management. But the state has also exercised its power to preserve its control over land and to manage forests in order to serve the needs of emerging corporate interests in tribal areas. In the process, it has ceded some ground in order to legitimise its own agenda of reforms.

The passage of this Bill has ensured that the fight for control over forests will continue when the rules and guidelines are framed. Meanwhile, the tribal people's struggle to survive will continue in this age of global capitalism.

Archana Prasad teaches at the Centre for Jawaharlal Nehru Studies, Jamia Millia Islamia.