Limited rights

Tribal activists of Orissa demonstrating in Bhubaneswar in December 2005, demanding passage of the Forest Rights Bill. - ASHOKE CHAKRABARTY

The provisions of the Bill meant to restore the rights of forest-dwellers do not live up to their stated purpose.

THE Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, was tabled in the last session of Parliament and is based on the correct understanding that the historical injustices faced by traditional forest-dwellers must be reversed. It is an attempt to meet a commitment in the United Progressive Alliance government's Common Minimum Programme to vest forest rights on an `as is where is' basis and stop evictions.

There are essentially three bases on which the merits and demerits of the Bill may be assessed. Whose rights are being recognised, what are these rights and how will they be vested? The Bill, unfortunately, falters on all these fronts and needs several amendments to meet its stated objectives.

To begin with, it confines its intended benefits to Scheduled Tribes (S.T.) alone. This excludes other traditionally forest-dwelling communities that are equally poor and similarly discriminated against but are either non-tribal or have not been scheduled or notified as tribes in the State in question (sometimes the same tribes are notified in one State and not another). This is not only unjust but also potentially explosive as it will needlessly divide the poor and create disharmony among communities.

Furthermore, the Bill requires the right-seekers not only to be S.T., but also to have continuous occupation of the land since October 25, 1980. This is difficult to administer, since people are unlikely to have documents that prove 26 years of occupation. Even if a person succeeds somehow in showing that he or she was here a quarter of a century ago, how does he or she establish continuous occupation? The Preamble of the Bill aims to secure the rights of those displaced by the state's development interventions, but much of this displacement has taken place after 1980. The situation of confusion thus created will provide opportunities for corruption and manipulation. The biggest concern is that these two provisions - October 25, 1980 as the cut-off date and the exclusion of non-S.Ts - may result in large-scale evictions of those who do not qualify.

The Bill also makes rights in the notional "core areas" of national parks "provisional" for five years, during which occupants can be evicted with "due compensation". The rights become permanent if the right-holders have not been evicted. This is a clear invitation to the Forest Department to evict somehow people within this deadline, with or without appropriate rehabilitation. It is also the case that "core area" as a concept is neither scientifically defined nor implementable on the basis of transparent and non-arbitrary criteria.

The Bill is also parsimonious in the land rights that it confers on these limited right-holders; it restricts the land to the actual area under occupation or 2.5 hectares for every nuclear family, whichever is less. This is against the principle of natural justice and the right to equality since much higher land ownership is permitted under land ceiling legislation in different States. The National Guidelines of 1972 suggest 4.05 ha for irrigated land on which two crops can be raised; at its lowest it is 3.6 ha, in Kerala. For dry lands, the guidelines suggest 21.85 ha and Kerala once again has the lowest, at 3.6 ha. It is not as if new land is going to be distributed from the forest areas so that every nuclear family will get 2.5 ha at the time of settlement. Land already under cultivation is merely to be regularised in predominantly hilly areas with rain-dependent mono-cropping characterised by low and variable productivity. A maximal limit of 2.5 hectares might end up worsening the livelihood and resource base instead of empowering forest-dwellers. There is also no provision of land for development of infrastructure. Rights of conversion to revenue villages are restricted only to recorded forest villages, and others only have "settlement" rights. This implies that villagers will still have to run from pillar to post each time a hand-pump is installed or an anganwadi is built. If not reversed, this will keep forest-dwellers in a state of perpetual backwardness.

Another important problem is that nistar rights and the right to cultivate forest land are limited to the village boundary, even though these are often exercised beyond village limits. The absence of stringent measures to stop forest destruction by industrial-commercial interests and the lack of state responsibility for protection of forest-dwellers from industry, contractors, traders and land mafia is a serious problem in the Bill.

One of the most important aspects of any such legislation is the institutional mechanism to invite, verify and confer rights. This is where the Bill needs to be as transparent, accountable and fair as possible. Unfortunately, the institutional structure and procedures are heavily biased in favour of the Forest Department bureaucracy. The monitoring committees at different levels are full of the department's officials, which does not make for transparent and fair functioning.

The Forest Department and the Ministry of Environment and Forests (MoEF) have had 26 years to regularise the land occupied by forest-dwelling cultivators. They have not only failed to do so, but also put up all kinds of impediments. The reliance on the same machinery now to verify and recognise claims is the Bill's greatest failing. Additionally, this parallel structure violates the 73rd Amendment and the Panchayats (Extension to Scheduled Areas) Act, since gram sabhas do not have clear authority for verification and recognition of rights.

Highly centralised, the Bill gives too much arbitrary power to the Central government and allows a "competent authority" appointed by it to overrule all decisions taken at the grassroots. In fact, Section 14 can nullify the entire Act as it states that the Act shall be "in addition to and not in derogation of provisions of any other Act for the time being in force".

The first rationale that is provided for the limitations in the Bill is legal. It is argued that any cut-off date after October 25, 1980, when the Forest Conservation Act (FCA) was passed, will violate the Act. In fact, the FCA does not prohibit regularisation of cultivation after 1980; it merely requires the Central government's permission for it. The date of its passage was fixed as the cut-off date by the MoEF circulars of September 19, 1990, and not by any law or parliamentary process. The cut-off date was thus determined through an executive decision and is not a statutory provision. Parliament obviously has the authority to change this.

The second rationale is claimed to be the imperative of forest conservation. However, the claim that conservation requires `inviolate' or `pristine' spaces has not been established on scientific or operational grounds. There is no historical or theoretical basis to argue that the Forest Department is the appropriate institution to prevent destruction of forest cover. On the contrary, there is a great deal of doublespeak in the claim that the FCA and the Forest Department have prevented loss of forest cover. Since 1980, an average of about 40,000 hectares of forest land has been diverted annually for non-forestry purposes; 9.84 lakh hectares of forest land had been diverted for developmental projects by 2004. Forest land is regularly diverted for mines, industry, dams and so on. Only about 1.67 lakh hectares has been cleared for diversion for the purpose of regularisation of `encroachments'. Moreover, this has not been implemented yet. Instances of double standards abound, whereby development projects and corporate profits are privileged over the historic and customary rights of forest-dwelling communities. Given this officially sanctioned, large-scale and brazen diversion of forest land, why should the relatively small area of forest land cultivated by its traditional occupants not be regularised? The truth is that forest-dwellers are being made to pay the price for destructive forest use by others.

The propaganda that forest-dwelling communities have destroyed forests is elitist and it hides a powerful global illegal trade in forest produce; it is not a scientifically established proposition. There are no convincing studies that show the extent of destruction of forest cover by different agents be it forest communities, development projects, industry or commercial exploitation. What is the magnitude of destruction of forest resources by these different users? Which commercial and global forces control and finance the lucrative illegal international trade in wildlife and other contraband forest resources? What is the role of the Forest Department, security forces and law enforcement agencies in this? If anything, the literature suggests that commercial exploitation and development projects have an irreversible and extensive adverse impact on forests; the forest-dependent poor, without any land rights or livelihood security, become mere pawns in this game.

Removing the limitations in the present Bill would not threaten the environment in any way - it is a simple matter of legitimising existing land use rather than initiating any new system through fresh deforestation. The most liberal enactment will only affect 2.2 per cent of the forest area at the most, which is the total of the area under forest villages and `encroachments'.

Compare this to the one million hectares of forest land (equivalent to 66 per cent of encroachments) diverted officially by the MoEF and the 6.3 lakh hectares taken over simply by notification, in what can only be called the biggest land grab in independent India apart from 26 per cent of India's geographical area that was taken over by the Forest Department in 1980 under the FCA. Note that the extent of forest land without forest cover, at 12 per cent of the forest area, is at least seven times larger than the area under `encroachments'; 4.4 per cent of the present forest area comprising natural forests, considered "economically less important", made way for "industrial" plantations between 1951 and 1979. The process of clear felling continues to this day. The pre-1979 figure alone is 2.5 times the area supposedly under `encroachment'.

In order to draw attention to the major problems in the draft Bill, 150 activists, academics and organisations submitted a memorandum to the Prime Minister in October 2005. Its signatories included Prabhat Patnaik (Jawaharlal Nehru University), Aruna Roy (Member, National Advisory Council), S.R. Shankaran (former Secretary, Ministry of Rural Development, Government of India), Jayati Ghosh (Jawaharlal Nehru University), Jean Dreze (G.B. Pant Institute), Medha Patkar (National Alliance for People's Movements), Ashok Agarwal (advocate), Colin Gonzalves (advocate), Anil Nauriya (advocate), Arvind Kejriwal (Parivartan) and Anand Patwardhan (film-maker).

They suggested that the cut-off date be brought forward to 2001, the rights of all traditionally forest-dwelling communities be recognised, the upper limit of 2.5 ha be removed, national parks and sanctuaries be kept within the Bill's purview and the Bill automatically permit land use for the development of social infrastructure. They also suggested that nistar rights not be limited to the village boundary; that the gram sabhas play a central role in verification and vesting of rights; and that the Bill override previous legislation with contrary provisions. They said forest-dwellers should be protected against the diversion of forest land to other `uses' such as submergence by big dam projects or industrial operations. They argued that the Bill must be based on the premise that excluding tribal people from forests is unacceptable from the viewpoint of both environmental sustainability and social justice, and the present attempt to settle land rights in forests will neither correct historic and colonial injustices nor fulfil the promises in the CMP.