The Land Acquisition Law, 2013 that replaced the Land Acquisition Act, 1894 brings the Scheduled Tribes and those covered by the Forest Rights Act within this law, and considers the possibility of involuntary displacement from land and habitat. Unlike the 1894 Act, this law expressly provides for acquisition for private companies and for projects to be executed through public-private partnership. There is an implicit erosion of the principles relating to land alienation in the Fifth Schedule areas which does not allow transfer of land from a tribal to a non-tribal. Just by way of clarification, private companies are non-tribals. The Land Acquisition Law, 2013 has been enacted at a time when the potential of the Forest Rights Act to bring forest dwellers out of the disabilities induced by illegality is still being worked out. There are multiple hurdles that communities have been experiencing in having their rights to the forest recognized. While there has been some movement on recognition of individual rights, community rights and the rights of access are still in the initial stages of being understood and implemented. The 2013 law, however, reveals an impatience to get forest and Fifth Schedule land into the process of forcible acquisition. Although the 2013 law acknowledges that there are special provisions in relation to land in Scheduled Areas, and that the Forest Rights Act is a piece of legislation that is about recognizing rights and not about opening up the land for transactions, yet it speaks of involuntary displacement for a project.
Section 41. Special provisions for Scheduled Castes and Scheduled Tribes.
- (1) As far as possible, no acquisition of land shall be made in the Scheduled Areas.
- (2) Where such acquisition does take place it shall be done only as a demonstrable last resort.
- (3) In case of acquisition or alienation of any land in the Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils, at the appropriate level in Scheduled Areas under the Fifth Schedule to the Constitution, as the case may be, shall be obtained, in all cases of land acquisition in such areas, including acquisition in case of urgency, before issue of a notification under this Act, or any other Central Act or a State Act for the time being in force: Provided that the consent of the Panchayats or the Autonomous Districts Councils shall be obtained in cases where the Gram Sabha does not exist or has not been constituted.
- (4) In case of a project involving land acquisition on behalf of a Requiring Body which involves involuntary displacement of the Scheduled Castes or the Scheduled Tribes families, a Development Plan shall be prepared, in such form as may be prescribed, laying down the details of procedure for settling land rights due, but not settled and restoring titles of the Scheduled Tribes as well as the Scheduled Castes on the alienated land by undertaking a special drive together with land acquisition.
- (5) The Development Plan shall also contain a programme for development of alternate fuel, fodder and non-timber forest produce resources on non-forest lands within a period of five years, sufficient to meet the requirements of tribal communities as well as the Scheduled Castes.
- (6) In case of land being acquired from members of the Scheduled Castes or the Scheduled Tribes, at least one-third of the compensation amount due shall be paid to the affected families initially as first instalment and the rest shall be paid after taking over of the possession of the land.
- (7) The affected families of the Scheduled Tribes shall be resettled preferably in the same Scheduled Area in a compact block so that they can retain their ethnic, linguistic and cultural identity.
- (8) The resettlement areas predominantly inhabited by the Scheduled Castes and the Scheduled Tribes shall get land, to such extent as may be decided by the appropriate Government free of cost for community and social gatherings.
- (9) Any alienation of tribal lands or lands belonging to members of the Scheduled Castes in disregard of the laws and regulations for the time being in force shall be treated as null and void, and in the case of acquisition of such lands, the rehabilitation and resettlement benefits shall be made available to the original tribal land owners or land owners belonging to the Scheduled Castes.
- (10) The affected Scheduled Tribes, other traditional forest dwellers and the Scheduled Castes having fishing rights in a river or pond or dam in the affected area shall be given fishing rights in the reservoir area of the irrigation or hydel projects.
- (11) Where the affected families belonging to the Scheduled Castes and the Scheduled Tribes are relocated outside of the district, then, they shall be paid an additional twenty-five per cent. rehabilitation and resettlement benefits to which they are entitled in monetary terms along with a onetime entitlement of fifty thousand rupees.
Land alienation: Kerala
In 2001, landless tribal communities in Kerala, represented by their leader Shri C.K. Janu, entered into an agreement with the Chief Minister under which all landless tribal families in the State would get land not exceeding 5 acres. Two years on, and the land allotments promised were not implemented at all. In a symbolic and strategic move, the community decided to enter the Muthanga forests and occupy the land. The decision to move to Muthanga evolved out of widespread consultative process across the state’s tribal belt- where a 60 member tribal court declared that since the agreement was being openly disregarded, the community should assert their rights by occupying the land. A month later, a part of the forest area occupied by the tribals including hutments were set on fire and property destroyed allegedly by police and government officials. The tribals ‘took captive’ about twenty state police and Forest Department officials.
Statements of these officials were recorded, and thereafter, they were handed over, unharmed, to the District Collector. Meanwhile, 500 armed policemen and forest officials descended on the area, and around 300 tribals were reportedly arrested. According to the People’s Judicial Enquiry Commission headed by Justice Shamsher and Justice Shamshuddin, men and women were rounded up and taken to the police station and many were beaten ruthlessly. Though the government record states that there were two deaths, a tribal and the other a policeman- many unofficial accounts point to a higher number of deaths.
The intensity of conflict this demonstrates can be explained in the context of a long history of marginalization, perpetual landlessness, laws that have bypassed constitutional obligations, and High Court orders that have been consistently ignored by the Government. In Kerala, more than 30 per cent tribal households are landless and the highest proportions are from Wayanad and Palakkad districts. Given the large influx of non-tribals, large tracts of arable land have been encroached upon.
The sub-committee constituted by the Kerala state assembly in 1976 conducted a study on land alienation in the Wayanad district. The study examined 298 cases and it was found that 71 were grabbed by force, 67 were grabbed for miniscule sums, while the rest for a very small amount. In 1975, the State government passed the Kerala Scheduled Tribes Act (Restriction on Transfer of Lands and Restoration of Alienated Lands), later incorporated into the Ninth Schedule. The Act renders all transactions of adivasi lands between 1960 and 1982 invalid and restores land to the original owners. The Act also restricts transfer of adivasi lands to nonadivasis from 1982, without the prior consent of the authorities. The 1986 Rules finally operationalized the Act, but even so there were no steps taken towards their implementation. Of the 8754 claims, filed by adivasis for about 9910 hectares till 1991, only about 545 hectares were restored. Acting on a petition filed in 1988, in October 1993, the High Court passed an order directing the government to “dispose of the applications pending before them within six months”. Faced with pressure from the High Court, an amendment the ‘Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Amendment Bill, was passed in 1996 to avoid contempt of court proceedings. The President of India, however, rejected this amendment which substituted restoration of original lands with providing ‘alternate lands’ up to 5 acres only. Finally, in 1999, the state government replaced the 1975 legislation with the Kerala Restriction on Transfer and Restoration of Lands to Scheduled Tribes Act, 1999. The Act provided that only land in excess of two hectares would be restored, and in all other cases alternate land would be given to the extent of two hectares. The number of applicants claiming more than two hectares was negligible, so in practical terms, the stated intent of the law to provide for ‘restoration’ of land was rendered meaningless. It is pertinent to note that neither the 1975 Act nor its successor, the 1999 Act, were able to address the issues of lack of documentary proof to establish past land ownerships.
The intention behind the 1975 Act was entirely negated, first, through systematic refusal to implement and then through the enactment of the 1999 Act, which renders that intention meaningless. Judicial response has been weak and unable to curb inaction and evasion by the State. Finally the brutal repression of the occupation of the Muthanga forests by tribals has only spurred a spate of such occupations- a demonstration of anger and loss of faith in the state machinery.
Memoranda of Understanding (MoUs)
In recent years, state governments and corporations have been entering into MoUs which impose a responsibility on the state to facilitate various aspects of their projects.3 The proliferation of such MoUs is noticeable. For instance, Chhattisgarh has reportedly entered into 121 MoUs for industries relating to coal, sponge iron, railways, and electricity. Jharkhand has also signed 74 MoUs for Mega Investment, indicating a total investment of Rs 2,93,360.33 crores in Project Cost. As on 2011, there are another 25 MoUs Jharkhand has signed with a total investment cost of Rs78,871.83 Cr and reportedly providing employment to 1,20,320 persons. Many of these MoUs pertain to Fifth Schedule Areas. These are some common clauses found in these MoUs:
“The Government agrees to acquire, the required land……and hand over the required land free from all encumbrances to SEL through Orissa Industrial Development Corporation (IDCO) for the project and allied facilities.” “Government agree to assist BEL .in obtaining all clearance/permits/approvals from the Central Government, State Government departments or agencies, Regulatory Commissions and Local Bodies(Municipal, Panchayat, etc.)”
“(a) The Govt. of Jharkhand agrees to forward proposal of M/s Essar Steel Jharkhand Ltd.(ESJL) in obtaining NOC through the State Pollution Control Board for the construction of Plant, the housing colony, mines, pipelines etc. Government. of Jharkhand agrees to forward proposal of M/s Essar Steel Jharkhand Ltd. In obtaining necessary clearances from the Central Government M/s Essar Steel Jharkhand Ltd. Will arrange to conduct a Rapid Environment Impact Assessment (EIA) an detailed EIA and prepare an Environment management Plan(EMP) for the project. The Govt. of Jharkhand agrees to extend any assistance in the shape of providing data/information available with it during the time when the EIA is conducted and EMP is prepared.”
These MoUs, it has been pointed out to us, change the relationship between the state and the corporation, and the state and project affected people. For instance, in Fifth Schedule Areas, it is the legal and constitutional obligation of the state to ensure that tribal land alienation does not occur, causing detriment to the interests of the tribals. The Samatha judgment of the Supreme Court was a reflection of this understanding. The court in that case held, “the State Government….stands prohibited to transfer by way of lease or any other form known to law, the Government land in Scheduled Area to non-tribal person, be it natural or juristic person except to its instrumentality or a Co-operative Society composed solely of tribes”. Yet, MoUs such as those described here, or the one that the Orissa Mining Corporation entered into with Vedanta, conveniently makes the transfer of land in Scheduled Areas into a contractual arrangement, in a complete breakdown of constitutional principles safeguarding tribal interests.
In 2005, when the Government of Orissa entered into a MoU with POSCO, which is now a contentious project and where local people including tribals have been protesting land acquisition for the project, it included a clause that read:
“(i) The Government of Orissa agrees to facilitate and use its best efforts to enable the Company to obtain a “No Objection Certificate” (NOC) through the State Pollution Control Board in the minimum possible time for the development and operation of the Project. The Company will conduct a rapid Environment Impact Assessment (“EIA”) and prepare a detailed EIA Report and an Environment Management Plan (“EMP”) for the Project. The Government of Orissa agrees to provide any assistance requested by the Company during the time the EIA is conducted and the EMP is prepared. The Government of Orissa agrees to use its best efforts to procure the grant of all environmental approvals and forest clearances from the Central Government within the minimum possible time for the Project.”
Again, environmental laws have been made to protect both the environment and those depending on it. The onus that the state casts on itself through such MoUs results in a dilution of procedures such as EIA. This amounts to a clear overriding of statutory provisions.
These MoUs have been criticized for prioritizing the interests of the corporations over those of the tribals and local populations. The state is expected to protect the tribal from losing land through land alienation, preserve the environment and protect the forest. Even if the state’s prerogative is ‘rapid industrialization’, the responsibilities it sets for itself through the MoUs would dilute the law, and this is a disturbing trend that has spread across states. For example, the MoU between the Government of Orissa and POSCO (2005) includes these clauses:
“A dedicated High Powered Committee shall be constituted jointly by the Government of Orissa and the Company to ensure that the Project proceeds as per the planned schedule. The High Powered Committee shall include as permanent members, senior officers of the departments of Steel and Mines, Industries, Energy, Water Resources, Works, Commerce and Transport, Environment and Forests and representatives from the Company. The Government of Orissa shall arrange for representatives of other departments to be present for each meeting as required.” “Immediately following the execution of this MoU, the Government of Orissa shall second (at its own cost) to the Company’s Project office in Bhubaneswar, an Officer of the appropriate level to be dedicated to the facilitation of the Project”
The altered understanding of the role that government officials are claiming for themselves, namely getting projects started, is setting at naught, the responsibilities that they owe the tribals, and subverts the law. There is a further clause that is found in recent MoUs, to which our attention was drawn. It reads:
“The Government and its concerned departments or agencies will facilitate and assist JSPL during various stages of the project as also of the captive coal mine, in a smooth and unhampered manner by maintaining the law and order in the Project area and its vicinity.”
“The Government of Orissa will take action to provide overall security as per applicable law, as may be required to all parts of the Project during the operation phase. All necessary steps in this regard including setting up of police stations, if required, would be taken by Government of Orissa.”
Source: Copy of the MOU between POSCO and the Government of Orissa dated 22nd June, 2005 The development paradigm adopted by states has raised questions from many quarters, and is manifest as protest, resistance, dharnas and court challenges. It is frequently seen that protestors are subjected to the heavy hand of the law, and find themselves arrested, charged with a variety of offences including even stringent provisions of the law such as sedition.
There have been many occurrences of crackdown on displaced people, people from whom land has been taken for the project and on those protesting the location of a project. These have been documented in a variety of ways including video recordings, fact-finding reports, and in national dailies and magazines. There is little to indicate that the concerns of the local people which is expressed in the protests and movements of resistance is being addressed. (see later section). This has had the effect of criminalizing protest.
It appears that some MoUs have begun to take shape between the state and civil society organizations. Its purpose is significantly different from that seen in MoUs of the state with corporations. Where the latter sought to ensure that the law would not be a hurdle to the progress of their project, the former was to work for the implementation of the law. The draft MoU that the committee saw was a memorandum to ensure that the Forests Rights Act is properly implemented.
Cabinet Committee on Investment (CCI)
The Cabinet Committee on Investments was an institutional apparatus set up to aid the government in pushing ahead with its agenda of growth and project development, especially of large projects. The logic, and functioning, of the CCI shows an impatience with what the law says, with Gram Sabha autonomy, and with the FRA. The CCI was constituted in 2013 specifically to expedite clearances of projects worth Rs. 1000 crores or more. The CCI raison d’etre was the expeditious clearance to be given to projects and to remove impediments that the CCI saw as delaying projects. Disturbingly but not unexpectedly, land acquisition, FRA implementation, environmental clearances and Gram Sabha consent were in focus. Decisions made by the CCI allow the FRA to be bypassed. The status report of the CCI dated 22.3.2013 stated that since obtaining Gram Sabha consent for each linear projects is time consuming, the MoEF issued an OM stating that this is not necessary anymore. Further, the notification also says that “for one time capacity expansion of 25 percent or less, coal mining projects have now been exempted from public hearing provided that public hearing had taken place at the time of obtaining the existing EC and the mining is confined to the existing lease area. This would help boost production of coal which is in short supply in the country.” This limit has now increased to 50 percent, as per a MoEF OM, 2014 also exempt from public hearing. The CCI has iterated that this is a good policy decision to avoid delays in projects. This is a blatant instance of the flouting of laws, relating to Scheduled Tribes, OTFD, forests and the environment. This is a case of expediency, as defined by the executive government – over principle, law and the lives of tribal communities. This deliberate subversion of the law is possible, because there are no consequences for such breaches of law. It is necessary both to review the decisions that have been made by the CCI to undo the illegalities, which have resulted from its functioning; and to provide for
penalties in the law, for such defiance of the law.
Niyamgiri
The FRA recognizes individual, community, traditional and cultural rights of Scheduled Tribes and other Traditional Forest Dwellers. This is a definite shift away from the Indian Forest Act, 1927 and its preceding laws which kept forest dwelling and forest dependent communities on the margins of legality. In 2006, when the FRA was enacted, the preamble to the Act acknowledged this when it said that this was “an Act to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other Traditional Forest Dwellers who have been residing in such forests for generations but whose rights could not be recorded…” The forest laws that culminated in the Forest Act of 1927 vested control over the forests in the colonial state to assist it in its expansionist enterprise. It was with the Forest Conservation Act, 1980 that the extent to which forests were being lost to industrial and mining projects became a concern that had to be addressed urgently. Yet, the FCA 1980 only shifted the decision making from the states to the centre, even as ‘Environment and Forests’ was moved from the state to the Concurrent legislative list in the Seventh Schedule to the Constitution. While this may have provided pause in the decisions made to divert forests to non-forest uses, the model of development adopted, and the priorities of different governments, has made relentless demands that conservation and protection agenda be put aside and the interests of foreign direct investment, growth rate and corporate involvement in the economy be given priority. As the state has begun to enter into MoUs and agreements with corporations with promises of land, water, clearances and law and order, the concerns of local populations have been relegated to the periphery. This has also been a time when, even as laws are made to protect tribals, forest dwellers, the environment including forests, the law has been ignored and sidestepped.
It is in this context that the processes of decision-making in tribal areas have not been adhered to in many instances. The Supreme Court’s decision in the Lafarge case2is revealing about how procedures could get subverted in the process of grant of permission for diversion of forest land for nonforest purposes in places inhabited by tribal communities. Lafarge was about quarrying for limestone in Meghalaya, and the forest clearance had been sought on the basis of a report that said that there were no forests in the area. This was later demonstrated that it is not an accurate statement of fact. Although there were around 1800 tribals in the affected area, in the first instance, it was recorded that 31 tribals had been consulted and, at a later date when the matter was in court, the views of 200 of them were said to have been heard. The spectrum of agencies had worked in ways that revealed severe weaknesses in regulation.
Similarly, the government is also faced with a fait accompli kind of situation, which in the ultimate analysis leads to grant of ex facto clearance.” This is a severe indictment of how processes are violated and the purpose of the law overturned. The Niyamgiri experience is iconic, demonstrating a clear break from before the time that the FRA was enacted. Niyamgiri hills is inhabited by the Dongria Khond, a Particularly Vulnerable Tribal Group. Vedanta Aluminium Ltd. approached the Supreme Court asking that the company be allowed to mine bauxite in the Niyamgiri hills to feed their aluminium plant located at the foothills. The Dongria Khonds opposed the mining, After two rounds of consideration by the Supreme Court, a hearing before the National Environment Appellate Authority, and two reports on the effect the project may have on the Dongria Khonds, the Supreme Court directed, on 18th April, 2013, that the Gram Sabha needed to consider the rights that were being affected by the proposed mining. Excerpts: “Many of the Scheduled Tribes and other Traditional Forest Dwellers are totally unaware of their rights. They also experience lot of difficulties in obtaining effective access to justice, because of their distinct culture and limited contact with mainstream society. Many a times, they do not have the financial resources to engage in any legal actions against development projects undertaken in their abode or the forest in which they stay. They have a vital role to play in the environmental management and development because of their knowledge and traditional practices. State has got a duty to recognize and duly support their identity, culture and interest so that they can effectively participate in achieving sustainable development.
Religious freedom guaranteed to Scheduled Tribes and the OTFDs under Articles 25 and of the Constitution is intended to be a guide to a community of life and social demands. The above mentioned Articles guarantee them the right to practice and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved.
We are, therefore, of the view that the question whether Scheduled Tribes and OTFDs, like Dongria Khond, Kutia Konds and others, have got any religious rights, i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyamraja, have to be considered by the Gram Sabha. The Gram Sabha can also examine whether the proposed mining area Niyama Danger, ten km away from the peak, would in any way affect the abode of Niyam-Raja. Needless to say, if the BMP, in any way, affects their religious rights, especially their right to worship their deity, known as Niyam Raja, in the hills top of the Niyamgiri range of hills, that right has to be preserved and protected. We find that this aspect of the matter has not been placed before the Gram Sabha for their active consideration, but only the individual claims and community claims received from Rayagada and Kalahandi districts, most of which the Gram Sabha has dealt with and settled.
The Gram Sabha is also free to consider all the community, individual as well as cultural and religious claims, over and above the claims which have already been received from Rayagada and Kalahandi districts. Any such fresh claims should be filed before the Gram Sabha within six weeks from the date of this judgment. State Government as well as the Ministry of Tribal Affairs, Government of India, would assist the Gram Sabha for settling of individual as well as community claims.” The ‘Palli Sabhas’ were held in Niyamgiri between 18thJuly and 19thAugust, 2013 in twelve hamlets in Rayagada and Kalahandi districts, which the state government considered were likely to be affected by the mining. The proposed mining was unequivocally rejected by all twelve Palli Sabhas.
Andaman and Nicobar Islands
In May 2002, the Supreme Court ordered a closure of the Andaman Trunk Road where it runs alongside or through the forests of the Jarawa reserve. This order has not been implemented so far. The administration had instead, in December 2004 produced a ‘Policy on Jarawa tribe of Andaman Islands’ which spoke of ‘regulation of traffic on Andaman Trunk Road’ (ATR) and not of its closure. The consequences have been severe. It is now widely reported that the ATR spawned a variety of tourism that makes a spectacle of Jarawa tribals. In 2012, a Guardian report about tourists escorted by a policeman through the ATR captured on camera naked Jarawa women dancing for them, at the behest of the policeman. A video clip accompanied the news report. The report, which is corroborated by activists working in the Andamans, speaks of convoys of buses and cars, which travel the ATR seeking this ‘safari’ as a tourist attraction. In January, 2013, the Supreme Court ordered that all commercial and tourism activities within five km radius of the Jarawa Tribal Reserve be banned. A newspaper reports; “Except 30 villages notified in the schedule, the notification declares a buffer zone of an area up to a five-km radius, adjacent and contiguous to the Jarawa Tribal Reserve Area, starting from the Constance Bay in South Andaman to Lewis Inlet Bay in Middle Andaman. No person shall operate any commercial or tourist establishment directly or indirectly in the buffer zone. Furthermore, no one shall carry out any activity, which may be prejudicial to the safety, security and interests of the Jarawas in any of the settlement villages.” The Supreme Court directed further that only government officials, persons residing in the reserve and vehicles carrying essential commodities for the Jarawas would be allowed on the ATR. The Calcutta High Court has adopted a different approach which was contrary to the orders of the Supreme Court, and which now stands overruled. In the case in the Calcutta High Court, a former director of the Anthropological Survey of India argued; “ATR is like a public thoroughfare through a private courtyard… In the whole of human history, we find that the dominant group for their own advantage has always won over the minorities, not always paying attention to the issue of ethics. Closure of the ATR would perhaps be the first gesture of goodwill on part of the dominant towards an acutely marginalized group, almost on the verge of extinction”.
The situation has progressively deteriorated. In January, 2014, there was apprehension of incidence of sexual exploitation of Jarawas. Eight Jarawa women were abducted on January 15, allegedly by local poachers who, as alleged, lure the Jarawa girls with food and drink and exploit them sexually’. This episode has drawn a member of the tribe to contact the outside world to protest about the sexual abuse of young women by outsiders. There is now discussion about integration of Jarawas with the outside world. Such integration should not be forced on them and it must be only when the Jarawas are ready to make the ecological shift. Until then, a policy of integration should not be pursued.
In February 2010, the last member of the Bo tribe, a tribe that is believed to have inhabited the Islands for 65,000 years, died. It is a somber reminder of the fragility of indigenous communities, a loss that has not yet been interpreted and understood. Genetic studies have been expanding in the scientific community around the world. In August 2013, it was reported that a geneticist from the Centre for Cellular and Molecular Biology, Hyderabad had travelled to the Andaman Islands to collect blood samples from Andamanese tribals. He reportedly explained that this would ‘help him understand the pivotal moment in India’s genetic history’. The report proceeds to say “the tribesmen had never heard of a gene before or an academic study for that matter, and the whole pitch struck them as an interesting diversion from their usual routine of spearfishing.” “They mostly laughed,” the geneticist reportedly said, and continues: “before they offered up their arms in exchange for food. A few needle pricks later, they returned to their boats to fling short wooden spears into the water with uncanny aim, while (the geneticist) made the long journey home to Hyderabad. He deposited the latest samples into a blood bank, alongside another 32,000 samples from his countrymen.” There is no mention of the protocols that they follow in collecting the blood sample, and efforts by the committee to secure these protocols failed. The
question of consent, especially, is too serious to ignore. This report requires further weight, when considered in the context of the draft Human DNA Profiling Bill, 2012, which proposes to database the DNA of various classes and groups of people.
Recommendations
The past twenty years have been dramatic in the changes in the economy, and in the effect that economic policy has had on tribal communities. This has also been the period when laws, notably the Provisions of Panchayats (Extension to Scheduled Areas) Act, 1996 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, have been enacted which recognize autonomy and rights of tribal communities. The implementation of these laws is, however, sputtering and reluctant. The FRA framework includes provisions for: (i) recognition and vesting of rights (towards a secure tenure and livelihood/food security of the Scheduled Tribes and Other traditional forest dwellers), (ii) protection of the rights till the recognition and vesting process is completed, and (iii) control over forests of the local community and the Gram Sabhas. This framework, however, is missing from the process adopted for implementation of the law and the implementation structure does not have the necessary mechanisms and the vision to realize the objectives of the law. What is needed foremost is to strengthen the institutional system to support the process of implementation, including strengthening of the Gram Sabhas and FRCs, streamlining functioning of the subdivisional and district level committees, strengthening the functioning of the state level monitoring committees and a dedicated structure within the nodal ministry (Ministry Of Tribal Affairs).
The implementation of the community forest rights has hardly taken off. It needs to have a clear mechanism and plan for recognition of various community forest rights and rights of vulnerable communities such as PVTGs and pastoralist communities. The implementation of the protective provisions in the law and the process of recognition and assertion of forest rights is so far largely affected (obstructed) by contradictory processes like: diversion of forest land which, among other things, is displacing Scheduled Tribes/OTFDs and alienating their rights, displacement from the protected areas and Tiger Reserves, and displacement due to intervention by the Forest Department through forceful plantation in the forest lands. While the protective clause under FRA is meant to prevent such cases of violation of forest rights, the implementation process has almost entirely ignored the protective parts of the law. The democratic structure in forests with the Gram Sabhas as laid out in the FRA faces great resistance from the current forest regime and the various forestry institutions and programs implemented by the Forest Department and the MoEF. In the Joint Forest Management program, for instance, the operation of working plans are found to be obstructing the process of assertion of rights by the Gram Sabhas. It is necessary to remodel the entire structure of forest administration, the Forest Department, the MoEF and its programs to complement and enable the control and management of forests by Gram Sabhas and local communities.
The changed paradigm has not yet permeated administration, and projects and plans continue to approach forests as the exclusive domain of the state. This is resulting in multiple ways and situations in which the laws are subverted, and the rights of tribal communities denied. The exception to linear projects and the decisions of the Cabinet Committee on Investment illustrate the point. Such deliberate flouting of the law currently has no penalties attaching to it. Such penalties that will deter the breaching of the FRA need to be introduced. The FRA mandates the representation of women in Gram Sabha and in the other tiers prescribed by the law. Effective participation has, however, been elusive. Given the close relationship between forests, forest produce and women’s lives, there is work to be done to turn this around.
The difference between states of poverty and of vulnerability has been explored in the context of PVTGs. Access to resources in forests makes a difference in the extent of their vulnerability. Where there has been a depletion of forest cover, and the emphasis is on timber trees, the effect is to add to the vulnerability of PVTGs. Where, on the other hand, the resources are safeguarded and the community has access, the ability to prevent nutritional distress can be augmented.
Displacement for creating Tiger Reserves and Elephant Corridors take away from the provisions that recognize that tribals need to be asked to be displaced only if co-existence is impossible and with Gram Sabha consent. The resettlement experience of those displaced speaks to continued marginalization of affected communities. This is a common tale, and that is the way it has largely been through the years. Even where the decision to displace is taken reasonably and according to the process prescribed, the inability displayed in effecting rehabilitation has to be acknowledged. There is an urgent need to review the ability of administrators who are responsible for rehabilitation, and for revising the rehabilitation process. Failed rehabilitation has consequences that have been ignored for far too long.
The import of PESA has not been internalized into administrative practice, and government officials including Forest Departments continue to deny access to tribals to that which is their right. Bureaucracies and judicial institutions need to be introduced to the changes that PESA has brought into administration and control in Fifth Schedule areas.
An exercise to bring rules made by state governments in conformity with PESA needs to be undertaken. Government officials who were the agencies to prevent tribal loss of land are increasingly being seen to be negotiators on behalf of project authorities. This is a very disturbing trend, where the very authority who had been tasked with preventing land alienation from a tribal to non-tribals becomes an agent for effecting such alienation. This must be stopped.
There have been recorded cases of Gram Sabha consent being fraudulently obtained or forged; such conduct must face penalties, and projects that proceed on the basis of consent so obtained cannot be allowed to proceed. If such consequences do not flow, there will be no incentive to refrain from such actions.
Given the constitutional provision in Article 243-ZC, the creation of new Nagar Palikas or the extension of those already in existence in Fifth Schedule areas and tribal areas, as defined in the provision, must be preceded by a law made by Parliament, which sets out the exceptions and modifications from the
chapter on Municipalities introduced by the 74thAmendment to the Constitution.
The amendments proposed to PESA has an important component of prior informed consent. This is a necessary condition for the effective implementation of PESA. There has been a proliferation of MoUs between states and companies that imposes responsibility on the state to facilitate various aspects of project clearances including in matters of environmental and forest clearances. Increasingly, the state undertakes to maintain law and order for the smooth execution of the project. These MoUs make the state a party to an agreement and take away the neutrality of the state. The idea such MoUs needs to be reviewed. Institutions such as the Cabinet Committee on Investment that set priorities and pursue them even where it is in direct breach of the law amounts to deliberate flouting of the law and such practices of expediency need be halted. Public policy and practice must draw on the iconic experience of Niyamgiri, and the adverse lessons from the Salwa Judum. The encounter of the tribal with criminal law has been one of the disturbing aspects in the past decade. Large numbers of tribals, men and women, are in jails for what are termed ‘naxal offences’. There is, of course, no legal basis for terming anything a ‘naxal offence’. Others are charged in areas where there is resistance and protest against projects, provoking the assessment that the criminal law is being used as a tool of the state to suppress dissent. The acquittal rate is extraordinarily high, raising doubts about the use of criminal law. Yet, the years spent in jail, multiple charges that are imposed on the tribals and the charges on tribal leadership and on supporters have become the new normal. The committee is of the view that a Judicial Commission needs to be appointed to investigate cases filed against tribals and their supporters; only this will allay the concerns that have risen about the misuse of criminal law by the state.
De-notified Tribes have been asking that steps be taken to remove stigma and prejudice from their lives. More specifically, the Habitual Offenders Act, which has served to continue to attach criminality to them, be repealed. Anti-beggary laws render the talents that they possess, such as juggling and acrobatics, into punishable conduct; there are earnest demands for the repeal of these provisions in the law. Women bear the brunt of this attribution of criminality, and whole communities of women find themselves in prostitution without a choice. Complaints about police brutality including custodial rape were rife, speaking of lawlessness among the law enforcers. Such lawlessness is unacceptable and action must be taken in accordance with law.
The Andaman Trunk Road which the Supreme Court ordered to be closed in 2002 still continues to be open to traffic. Although there are formal directions against plying commercial traffic on the road, these have been observed only in the breach. Tourist vehicles including buses and taxis ply on this road. In the past few years, the exploitation of Jarawas as a tourist attraction, and the sexual exploitation of the Jarawas has been recorded and reported on. The problem has however not abated. The Andaman Trunk Road will have to be closed if the Jarawas are to be protected from such unwelcome interest. DNA testing on Jarawas has been reported. Efforts to get the protocols used to ensure the consent of the indigenous population did not yield result. This becomes of especial significance in the context of the Human DNA Bill, 2012 which proposes the creation of DNA data bases. Informed consent is a necessary part of such exercises, also among the indigenous population. The persistence of bonded labour, and the trafficking, in large measure, of women from tribal areas needs a concerted effort to end it. The state has to take primary responsibility to identify, release and rehabilitate bonded labour, wherever they are found.