This article is written by Pranav Sethi, from SVKM NMIMS School of law, Navi Mumbai. This article deals with the rights of the traditional forest dwellers – a social-legal study.
Table of Contents
Introduction
In India, the connection among tribal groups and forests was defined by coexistence, and these populations were seen as essential to the natural system’s survival and sustenance. This mutualistic interdependence was recognized, and customary rights over natural forests were established. However, during the colonial era and in Indian independence, the administration did not acknowledge or register these rights when combining state forests. Tribal groups were evicted from their traditional forest resources as a consequence of the ensuing uncertainty of tenancy and danger of eviction. The Wildlife (Protection) Act of 1972 (the ‘WPA’) and the Forest Conservation Act of 1980 (the ‘FCA’) continued this historical injustice by identifying protection of the environment and indigenous rights acknowledgment as fundamentally contradictory goals. Other post-independence legislative and executive policies have only served to exacerbate these divisions.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, furthermore recognized as the Forest Rights Act, 2006, the Tribal Rights Act, 2006, the Tribal Bill, and the Tribal Land Act, is a groundbreaking piece of legislation that governs and protects the rights under the law of forest-dwelling communities, especially the indigenous Adivasi tribal community, over land and natural resources. Even after the independence of the country, it was discovered that perhaps the forests were entrusted to the political wants of a few public officials with too much power.
Relevance of Bhuria Committee
Concerning the consequent tribal protests and turmoil, the Ministry of Rural Development of the Government of India formed a committee led by Mr. Dileep Singh Bhuria, a tribal Member of Parliament, to make recommendations on the important features of the law for broadening the provisions of Part IXA of the Constitution of India (‘Panchayats’) to Scheduled Areas (which are primarily tribal areas identified for special protection in the Fifth Schedule of the Constitution). The Bhuria Committee’s report, published in 1995, urged, among other things, for the legal status of the Gram Sabha (or village council, which consists of the gathering among all adult citizens of a village) as the principal focus of tribal administration. It was also suggested that the long-standing demands for tribal autonomy over valuable forestland be granted, and also that official involvement in tribal matters be avoided. After the announcement of this, Parliament approved the Panchayats (Extension to Scheduled Areas) Act, 1996 (the “PESA”), which acknowledged tribals’ right to self-governance, but the PESA’s administration has been far from adequate.
Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (the ‘Act’) was adopted by Parliament in 2006 to ‘undo the past injustices’ endured by indigenous people. As unexpectedly, substantial conversation and argument accompanied the legislation’s passage, highlighting the differences between social activists and environmentalists and conservationists on key subjects. As a result, it’s critical to explore the causes for the Act’s development in the presence of such division.
We must also look at the Act’s measures to see if it has accomplished in finding a balance between livelihood stability and environmental objectives. Unfortunately, based on an assessment of the law and supplementary research, the Act’s prospective reach and influence have been restricted.
How are the environmental situation in the forests
The people of the forests have been subjected to discrimination, arrests, and other forms of retaliation as a result of the continuance of deforested circumstances and anti-forest laws, which hold people responsible for encroachment on their lands. Local communities had to take the burden of the administrative burden as well. Sexual assault, torture, extortion for money, bonded labor, and human trafficking were all widespread (and still are to a certain level). More than 3 lakh families, mostly from indigenous tribal populations, were expelled and made homeless as a result of the evictions campaign, which began in 2002. Many communities in and nearby woodlands were demolished in various locations. In a sense, there was a legally authorized criminalization of large indigenous populations, which is completely contrary to the Constitution’s spirit and ethics.
What is the purpose of the Forest Rights Act
The following are the major goals that this statute is supposed to achieve:
- The acknowledgment of the protections of traditional groups residing in forest regions who have been denied their primary constitutional rights due to the punitive restrictions of the British forest acts since time immemorial.
- The Act also intends to move away from excessive government control of ecosystems, which had previously been maintained out of the scope of public debate and deliberation The tribal identity is democratized and respected as a result of this.
- The Act defines rules for developing rural improvement infrastructure in and near forested regions.
- Another key feature of the Act is the development of disadvantaged individuals to reduce poverty and enhance the economic prosperity of poor households.
- The goal is also to strengthen and encourage regional self-governance amongst native tribes and forest inhabitants who are disadvantaged.
- Cultural heritage and intellectual property protection relating to the cultural variety and biodiversity of forest dwellers are being preserved.
Who qualifies as a forest dweller under the same rule
It is necessary to be recognized as a “forest dweller” in an attempt to benefit from the Act’s protections and entitlements. For the criteria to be determined, there are two important elements. The first level consists of conditions that must be met to be eligible as a forest inhabitant. These are the ones that will be explored later down:
- The individual(s) must live in or near forests or forest grounds.
- The individual must be genuinely reliant on the forest, its land, and its services for their existence.
The second step entails demonstrating the aforementioned:
According to Section 2(o) of the Act, the aforementioned stage 1 standards must be met for seventy-five years to be classified as an ‘Other Traditional Forest Dweller’.
The Act also provides for two other options. The following are some of them:
- Section 2(c) of the Act, which states that the individual is a Scheduled tribe member.
- According to Section 4(1) of the Act, the person is a resident of an area where they are designated.
Tribal rights in the organization : a move towards more modernization
The traditional approach of the state apparatus to the suffering of indigenous groups has been one of ignorance and distrust. However, for the first time in 1988, the e-linkages among environmental and social problems in the form of human rights to natural resources were acknowledged, and the National Forest Policy (the “NFP”) emphasized the importance of including tribal communities in forest governance.
To achieve this stated purpose the Ministry of Environment and Forests (the “MoEF”) issued a set of six circulars on September 18, 1990, stating that pre-1980 forest land occupation would be qualified for regularisation if the State Government developed specific eligibility requirements based on the local necessities and requirements. Tragically, this people-centered approach was never put into practice.
Misinterpretation of Supreme Court’s order by Ministry of Environment and Forests
The Ministry of Environment and Forests, on the other hand, misconstrued the Supreme Court’s ruling, which demanded the Court’s approval for any generalization of forest encroachments, as a directive to evict “all illegal encroachment of forestlands in different States/Union Territories.” As a measure, the forest department launched nationwide eviction operations. During large demonstrations by tribal communities after the May 2004 general elections, the UPA (United Progressive Alliance) government pledged to end the “eviction of tribal groups and other forest-dwelling populations from forest regions” in its Common Minimum Program.
Role of Ministry of Tribal Affairs
The Ministry of Tribal Affairs (MoTA) was tasked with creating the legislation and formed a Technical Advisory Group composed of experts from other ministries, civil society, and constitutional lawyers to prepare the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005. Numerous aspects of the Bill were received with fierce resistance from a variety of sources. Wildlife conservationists and the Ministry of the Environment have expressed alarm about the alleged negative impact of its administration, which, they say, might severely harm the already scarce forest covering. The validity of these charges was contested by the pro-Bill group, which saw the legislation as a way to correct a “historical injustice” that originated in the non-recognition of tribal people’s forest rights during forest concentration. There was a similar division among supporters of tribal land rights and supporters of the forest departments’ continued ownership of lands.
Kinds of rights granted to forest dwellers
There are three types of rights reflected in the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006. These are explored in more detail below under several topics.
Rights granted for the usage of forest resources
The relevant rights to use and/or collect have been specified by the Act:
- Section 3(1)(c) gives people the right to use minor, “traditionally” obtained natural resources such as tendu patta, herbs, and herbal medicines. Nevertheless, timber was left off the list since it would have permitted widespread deforestation.
- Section 3 also includes sites that forest residents can use, such as grazing areas and water bodies.
- The Act makes special provisions for the areas of traditionally nomadic or pastoral nomads groups who do not practice an established agriculture system and shift their herds to distinct destinations.
Right to protection and conservation
- Only the officials of the forest department had a legal inherent responsibility to safeguard the forests before the establishment of this legal framework. This gave these authorities a lot of exceptional privileges, allowing them to demolish or pass off land or territory as per their needs and demands.
- Section 5 of the Act grants privileges to various forest-dwelling societies to protect their environment, wildlife, and other resources.
- With frequent threats and risks including forest mafia groups, corporate elites or manufacturers, land opportunists, and others, the majority among whom act following and with the Forest Department’s assistance.
- All of this was considered authorized work, and preventing employees from providing these services was illegal under earlier rules.
- Following the enactment of the present Forest Rights Act, the community was given rights to maintain and manage the forest.
- The Act’s Section 3(1)(i) gives the community woods the right and power to be conserved and protected.
Land rights
- A minimum of 4 hectares of land can be sought under Section 3(1)(a) interpreted with Section 4(6) if the land has been harvested by them for their livelihoods but the documentation is not obtainable to the claimant.
- If the plaintiff’s estate has been illegally taken by the Forest Department or is the focus of a Forest-Revenue Department disputes, he or she might legally claim such land rights by presenting a patta or a government lease, according to Section 3(1)(f) and 3(1)(g).
- The timeframe has been announced in Section 4(3) of the Act for evaluating whether rights to land that have not been harvested pre and post-December 31, 2005 are still valid.
- Section 4(4) of the Act protects the land in a way that prevents it from being sold or transferred to anybody other than heirs.
Mechanisms in place to ensure that rights are respected
Section 6 of the Act, in addition to establishing a complex set of rules and responsibilities for Scheduled Tribes as well as other registered forest inhabitants, lays out a clear, three-step system for determining who deserves such benefits and their recognition. These are listed as follows:
- The Act emphasizes the significance of the whole gram sabha, rather than just the gram panchayat. The members of the gram sabha are given the right to make recommendations about who owns and cultivates the land, how long they own or cultivate it, and so on.
- The democratic structure of the gram sabha, featuring involvement by diverse members of the community and transparent discussion, is the justification for entrusting the task to it.
- However, in keeping with the democratic institutionalization of the local legislature, or gram sabha, their suggestions aren’t definitive and are sent for screening at two levels: taluka and district.
Relevance of Section 6 in the Act
- The authority to make the ultimate judgment has been delegated to the district-level committee under Section 6(6) of the Act.
- The committees are composed of six members, three of whom are elected and the remaining three are government professionals.
- Section 6(2) states that if an individual considers a statement is false and applies to the Committee in support of the statement and the Committee ends up demonstrating the claims regarding the validity, the claimant’s privileges are refused.
- Section 6(4) is a duplicate replica of the preceding paragraph, with the exception that it extends to the provincial level.
- Another essential privilege recognized by this Act is that the land authorized by this legislation cannot be sold or transferable.
Challenges faced by the Forest Act
There were numerous problems that the Forest Act had to overcome to work effectively for the development, rehabilitation, and preservation of plant and animal species from extinction, including:
The forest bureaucracy’s unwillingness to transfer authority
The forest bureaucracy’s pure incompetence of both centres and states, as well as huge enterprises, to a certain measure. The dread of forest bureaucracy losing great control over land and people of present joys with corporates having the fear of losing cheat accessibility to important natural resources.
Absence of information
Lower-level forest authorities were unclear of how forest ownership practices may be used to seize a large percentage of the population and keep them in the dark about their rights. The forest administration has misconstrued the forest rights act as a weapon to regulate welfare encroachment and its measures for tribals.
Complacency in the administration
Acts concerning the ecosystem do not conform with the laws or illegal settlements which have been stated to be denied arbitrarily and remain the greatest obstacle in implementation. The main vote bank in provinces was not tribals, allowing administrations to readily undermine the Forest Rights Act (FRA) for monetary benefit.
Acts and provisions concerning related Act
The Forest Rights Act of 2006 is based on three main provisions and acts:
Wildlife (Protection) Act, 1972
The government passed the Wildlife (Protection) Act of 1972 intending to protect the nation’s wildlife and prevent poaching, trafficking, and illegal dealing in wildlife and byproducts. The Act was revised in January 2003, increasing the severity of the fines and fines for offenses under the Act.
The government proposed some additional adjustments to the laws by adding strict procedures to reinforce the Act. The goal of environmentally preserved zones is to respond to endangered flora and animals and provide support.
The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA)
Tradition and much-varied persevering and protecting traditions of people from different cultures, community programs, and style of dispute settlement with some practices. This provides the appropriate degree of gram sabha/panchayats with mandated consultative privileges in acquiring land and restoration of displaced people. PESA will have greater supervision over the use of government funds which will lessen alienation in tribal communities. This facilitates the exploitation of tribal groups and allows for the management of lending money as well as the management of the use of alcohol stores in village marketplaces.
Article 243B provides for the establishment of a three-tier structure for the Panchayati system:
Gram Panchayat
In the panchayat pyramid structure, the gram panchayat is the lowest level. The zone in a village is subdivided into even smaller units known as wards, each of which elects its representatives. Ward members, also known as the Panch, are members of the Panch. The Sarpanch, the head of the Gram Panchayat, is also elected by the Gram Sabha. As a result, the Gram Panchayat is made up of the Sarpanch and the Panch. The Gram Panchayat’s key responsibilities include societal problems, the construction and maintenance of institutions, roadways and drainage systems, and the levying and collection of local taxes. The Gram Panchayat is responsible to the Gram Sabha, the village’s main group of voters as well as the two tiers of authority above it in the system.
Panchayat Samiti
The Panchayat Samiti will be the next institution. It supervises the operations of all of the Gram Panchayats in the villages that fall under its supervision. The Pradhan is in charge of the Panchayat Samiti. He or she is chosen by a body that includes all representatives of the Panchayat Samiti as well as all Panchs of the Gram Panchayats that fall under its jurisdiction.
Zila Parishad
That’s the highest level of panchayat in the local self-government structure, often called District Panchayat. It supervises the operations of all of the Panchayat Samitis in the district under its jurisdiction, as well as all of the Gram Panchayats that fall under them. It also oversees the release of funding across all Gram Panchayats. It is in charge of developing district-level expansion plans. The Chairman is in charge of the Zila Parishad. It also has a member that is elected by the State government: the Chief Executive Officer.
Case laws
Wildlife first v. Ministry of Forest and Environment (2019)
In this case, the Forest Rights Act of 2006 was being reviewed by the Supreme Court for its constitutionality.
Facts of the case
Wildlife First, the Wildlife Trust of India, and other environmentalists petitioned the Supreme Court in 2008 to have the Forest Rights Act (Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006) examined for constitutional legitimacy. They claim that the Act has resulted in deforestation and forest area encroachment.
Individuals claiming interests under the Act should be able to show that they have been and continue to either reside on forests or forestland or rely on forest products for a living. The Act acknowledges two categories of people who can gain ownership under it:
- Scheduled Tribes of Forest Dwellers.
- Other Traditional Forest Dwellers (OTFDs) are communities that have lived in the woods for at least 75 years.
One of the petitioners’ principal requests was for the return of forest land that had been trespassed at by persons whose rights to land under the Forest Rights Act had been denied. The petitioners filed an interlocutory application in 2014, demanding that the Judicial order the states remove unlawful forest residents. The Supreme Court ruled on February 13, 2019, that states must remove all individuals whose applications under the Act were denied by July 24, 2019. It also ordered the Forest Survey of India to perform a satellite survey and identify the locations of encroachment before and after clearances. Furthermore, it ordered the Chief Secretaries of different states to provide documents detailing how they had neglected to evict people whose claims had been denied up to this point. On February 28, the Tribunal put a hold on one’s own decision, asking states to give information on whether they had implemented due process when dismissing applications.
Issues in the case
- Whether states have implemented due process while denying forest residents’ claims.
- Whether the procedure for filing claims under the Forest Rights Recognition Act of 2006 is valid.
- Whether the 2006 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act is legal.
Judgment
After the government failed to defend the legitimacy of the Forest Rights Act, the Supreme Court ordered the forced eviction of nearly 1,000,000 tribals and other forest-dwelling households from forestlands throughout 16 states. The Chief Secretaries of all 16 states were ordered by the three-judge bench of Arun Mishra, Navin Sinha, and Indira Banerjee, JJ to, “ensure that where the rejection orders have been passed, eviction will be carried out on or before the next date of hearing. In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court.”
Orissa Mining Corporation v. Ministry of Environment & Forest & Others (2013)
In this case, to conserve Niyamgiri from a proposed mining project by a multinational company, the Indigenous Dongria Kondhs took action, which is undoubtedly the most amazing read of the Forest Right Act, which could be a rights-based process to achieve the efficient representation of Indigenous peoples and local communities protections to reinforce the policy making community over the sacrosanct environment.
Facts of the case
In this case, the business Sterlite Industrial applied for approval to build a bauxite ore mine on forest property in Orissa’s Niyamgiri Hills, which is home to an indigenous tribe known as the Dongria Kondh, which numbers 8,000 people and includes many children. The Ministry of Environment and Forests had granted tentative environmental approval, which will be finalized after an examination of the project’s effects on the Dongria Kondh community.
Following impact evaluations undertaken by several government agencies, it was determined that the intended progress would infringe on the rights of the Dongria community and therefore be denied. However, Vedanta had already started the project and constructed a refinery at the bottom of the Niyamgiri Hills. Sterlite’s application for environmental approval was ultimately refused by the Ministry, which stated that the initiative had shown an obvious and startling contempt for the tribal groups’ rights, which are protected by the Forest Rights Act. In this matter, the corporation is requesting that the Court reverse the Ministry’s decision.
The issue in the case
- Whether denying environmental approval for the construction of a mine because of the mine’s impact on indigenous tribes is lawful.
Judgment
The Court considered whether indigenous people have a right to land possessed by the company. The Judge goes on to explain that the state owns natural resources as a trustee for the citizens, and any attempts to exploit these resources must be approved by local inhabitants. The Dongria unanimously opposed the Vedanta project after a series of 12 village discussions. Besides the collection and sale of small forest products to earn their living, the Court recognised that agriculture was the tribes’ only source of revenue. The tribes have strong emotional ties to their respective territories.
Adivasi Kanikkar Samyuktha Sangham v. Union of India (2019)
In this case, the Division Bench of Hrishikesh Roy, CJ, and A.K. Jayasankaran Nambiar, J. approved the withdrawal of a writ appeal, reasoning that since the case involved forest residents’ rights, a review of the writ petition would be the proper approach.
Facts of the case
The interests of traditional forest residents were at issue in this case. Although several reliefs were decided to seek in the case brought for the protection of forest dwellers, and the counsel therein was attempting to make application well before learned Judge only for interim relief, the entire case was disposed of without allowing the appellant (petitioner in the said writ petition) to submit other prayers, according to Mr. K.S. Madhusoodanan, learned counsel appearing for the appellant. As a result, the Court was unable to address the other ten substantive requests in the writ petition.
Appellant’s learned counsel submission
In these conditions, Mr. Madhusoodanan argued that he should be allowed to withdraw the current appeal and file a review petition with the writ court for a new hearing, especially as neither the State nor the Central Government needed to file a counter affidavit in the writ suit. He argued that where essential rights for traditional forest inhabitants are being advocated in writ proceedings, pleas should be examined after the counter affidavit(s) are filed, revealing the State’s and the Central Government’s positions.
Judgment
The Court rejected the aforementioned appeal as not challenged and allowed the appellant the right to submit a review petition in light of the foregoing submissions.
Conclusion
The Scheduled Tribes and Other Traditional Forest Dwellers Act (Recognition of Rights) Act, 2006 is important and necessary. Whenever a nation is establishing and fully on the journey of the capitalist system, the law takes on even greater significance, creating it even more meaningful to deliver a representative characteristic for marginalized and disadvantaged communities and groups, such as the Tribals as well as other equivalent indigenous groups, from the requisite evils of building and infrastructure growth while also securing their survival.
References
- https://www.researchgate.net/publication/332107497_Understanding_India’s_Forest_Land_Rights_through_Spatial_Justice_Framework_-_A_Policy_Analysis_of_the_Forest_Rights_Act_2006
- https://archive.crin.org/en/library/legal-database/orissa-mining-corporation-v-ministry-environment-forest-others.html
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