Tribal Rights and deforestation
Updated: Mar 14, 2022
Tribes are the isolated and vulnerable section of society. They need protection for a secure life. They have been provided with different rights under the constitution of India and certain acts. Tribes mostly live in the forest and they have right over their habitat in that forest. The land rights of tribal people are questioned many times and they face issues over their livelihood. The fifth and sixth schedule of the constitution is especially for the tribal people. The land degradation in the forest is affecting the life of tribes. This can be saved through community participation for forest conservation and this approach can lead to the cohabitation of tribes and forests. The tribes are the dwellers of the forest and they have sustained with not only living there but also with different resources of the forest. They face many issues concerning their land rights. Non- profit organizations and activists fight for tribal rights. The judiciary and legislature play a key role in uplifting the position of tribes. Acts such as the Forest rights act are important for tribes and their right to land. Judiciary in various judgments have said that tribes are part of society that needs special protection. Community effort and cohabitation of tribes and forest can balance their ecosystem. Social empowerment schemes are an effective way to lift the lives of the tribal people.
This research paper is written by Naina Solanki student of the Prestige Institute of management and research pursuing an LL.B. She has completed a Bachelor of Science from Holkar Science College.
According to the Anthropological Survey of India, there are 461 tribal communities, out of which 174 were identify as sub- groups. The tribes of India constitute 8.2% of the total population. Tribes are the people who are indigenous to a place, they have certain rights over that place and their rights are protected by the constitution of India as well as by various statutes.
A tribe is a social group existing before the development of the place, they are distinct people, dependant on land for livelihood, are mostly self-sufficient, and not integrated into the national identity.
Mostly, the tribal people live in the forest and deforestation has adversely affected the tribes.
Deforestation is an environmental concern as it is the removal of trees on a large scale from forests which can lead to loss of biodiversity and badly impact the habitat of tribal people.
In so far as land-related issues are concerned, the Ministry of Rural Development, Department of Land Resources (DoLR), is the nodal Ministry at the Centre, which plays a monitoring role in the field of land reforms, Land and its management fall under the exclusive legislative and administrative jurisdiction of States as provided under the Constitution of India (Seventh Schedule)-List-II (State List)-Entry No. (18).
The Scheduled Tribes (STs) have been the most marginalised, isolated and deprived population. To protect and safeguarding the land rights of STs and to address the issue of Land Acquisition and displacement of tribals, following Constitutional and legal provisions have been put in place
· Equality before Law (Article 14)
· Special provisions for the advancement under Article 15 (4).
· provisions for reservation in the appointment, posts under the State by Article 16 (4).
· National Commission for Scheduled Tribes (Article 338A).
· To specify the tribes or tribal communities to be included as STs (Article 342)
· The directive principle under article 46 directs the State, to promote with special care the educational and economic interests and protect them from social injustice and all forms of exploitation
· Grants-in-Aid from the Consolidated Fund of India for the welfare of the Scheduled Tribes and administration of Scheduled Areas under Article 275(1)
· The fifth schedule of the constitution provides for safeguards against displacement of tribal population because of land acquisitions etc. The Governor of the State, having scheduled Areas, is empowered to prohibit or restrict the transfer of land from tribal people and regulate the allotment of land to members of the Scheduled Tribes in such cases
· The sixth schedule contains similar protection for the tribal population of the states of Assam, Tripura, Mizoram & Meghalaya (ATMM)
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA in short), in section 4(5) states that save as otherwise provided, no member of a forest-dwelling Scheduled Tribes or Other Traditional Forest Dweller shall be evicted or removed from the Forest Land under his occupation till the recognition and verification procedure is complete.
Under Section 5 of FRA, Gram Sabha is, inter-alia, empowered to ensure the decision taken in Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with.
The government has enacted the 'Right to fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act, 2013 in short). The purpose of the said Act is to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired.
Under Section 48 of RFCTLARR Act, 2013, a National Level Monitoring Committee for Rehabilitation and Resettlement has been constituted in the DoLR vide DoLR’s Order No. 26011/04/2017-LRD dated 2nd March 2015 to review and monitor the implementation of rehabilitation and resettlement schemes and plans related to land acquisition under the RFCTLARR, 2013 and National Rehabilitation and Resettlement Policy, 2007.
By way of safeguards against displacement special provisions have been made for Scheduled Caste and Scheduled Tribes under Section 41 and 42 of the RFCTLARR Act, 2013 which protect their interests. As per Section 41 (1), as far as possible, no acquisition of land shall be made in the Scheduled Areas. As per Section 41(2), where such acquisition does take place, it shall be done only as a demonstrable last resort. As per Section 41(3), in case of acquisition or alternation of any land in 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 the issue of a notification under this Act, or any other 9entral Act or a State Act for the time being in force. The RFCTLARR Act, 2013 also lays down the procedure and manner of rehabilitation and resettlement.
The Panchayats (Extension to Scheduled Area) Act, 1996, also provides that the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas or development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas, the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State Level.
Constitutional provision under Schedule-V also provides for safeguards against displacement of tribal population because of land acquisition etc. The Governor of the State which has scheduled Areas is empowered to prohibit or restrict the transfer of land from tribals and regulate the allotment of land to members of the Scheduled Tribes in such cases. Land being a State subject, various provisions of rehabilitation and resettlement as per the RFCTLARR Act, 2013 are implemented by the concerned State Governments.
The Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989" has been introduced to prevent the commission of offences of atrocities against members of the Scheduled Castes and the Scheduled Tribes, to provide for the trial of such offences and the relief of rehabilitation of the victims of such offences for matters connected therewith or incidental thereto. Wrongfully dispossessing members of Scheduled Castes or Scheduled Tribes from their land or premises or interfering with the enjoyment of their rights, including forest rights, over any land or premises or water or irrigation facilities or destroying the crops or taking away the produce therefrom amount to the offence of atrocities and are subject to punishment under the said Act.
The present problem has been made more complicated by the fact that many tribal who have been living in the forest for generations do not have the necessary paperwork to prove that they have been living there.
The rejection of claims has also been arbitrary without proper research or background check.
There has been a theory in prevalence since the passage of the Forest Rights Act that such legislations accelerate deforestation.
However, empirical data, including research by the Tata Institution of Social Sciences have shown that community participation boost conservation efforts. Research also shows that an exclusionary approach to conservation makes conservation efforts unsustainable
Amendments to the colonial era Indian Forest Act is also drawing a lot of criticism.
It empowers the forest officials to use firearms and cause injury to prevent any “violation”.
It also makes statements made to any forest officer admissible as evidence in a court of law. This is a provision that is used only in extreme cases. Its use in forest administration where forest officers already enjoy wide powers is problematic. There is a huge scope for misuse.
The amendments also empower the officer to seize property concerning any case.
The forest department will also have the right to impose a cess on forest produce, which is over and above the tax imposed by state governments. This is in contravention to FRA, which says that minor forest produce used by forest dwellers cannot be taxed.
The Forest Rights Act had democratised the issue of Forest, land, ownership of forest produce, etc. and considerable devolution of powers to the gram sabhas had also taken place. Many provisions of these amendments might reverse this situation.
There is also concern that inviting private parties to maintain forests might give them a perverse incentive to invest in timber cultivation which might adversely affect the fragile ecological balance of the forest area.
Issues with FRA, 2006
· The distribution of land titles amounts to 1.5 million (3 million hectares of land) is way below the potential of title distribution.
· Boundaries of the land are not demarcated properly.
· Meetings of the Gram Panchayat are held at the panchayat level and not at the hamlet/revenue village level.
· Environmental protection laws and the FRA are not complementary making the distribution of titles hard.
· Environmental groups complain that the FRA gives more importance to individual rights than community rights.
· Forest bureaucracy is not aware of the details of the act and most of the time misinterprets the act leading to confusion among various departments.
· The FRA implementation poses a conflict of interest for forest officials who had till now vast powers regarding forest administration.
Issues regarding the various tribal rights
· The National Commission for scheduled tribes (NCST) has only recommendatory powers making it somewhat ineffective in protecting the rights of the tribal areas.
· The Atrocities Act lacks effective implementation due to procedural delays in investigation, judicial delays and the inability of tribal people to understand legal issues.
· The implementation of social empowerment schemes is lacklustre. There were cases of deaths of tribal people due to malnutrition in various states.
· The implementation of Prof Xaxa committee recommendations remains tardy
Community participation in Forest Conservation
1. Until people were involved in the planning and implementation of forest conservation, development and extracting forest resources like minor forest produce in a sustainable way, the situation was deteriorating.
Joint Forest Management Programmes started involving people in restoring the degraded forest. The degraded forest has been regenerated, the land lost to cultivation has been restored to the forest land. Also, the resources that were dwindling in forest areas with deforestation have been improved. The forest cover has been considerably increased post-Joint Forest Management Programme implementation.
The importance of the Forest Rights Act is that it is recognising the legitimate rights of forest dwellers including the tribals. The tribals do not own any land like other communities who are living in villages and have no other livelihood.
The government had recognised that the only way to protect forest is through the communities that live in and around the forest. The forest guards and the forest administrators would not be able to protect the forest. Community participation is required for the forests to survive.
In the forest conservation development programmes people have demonstrated that they are in favour of the protection and conservation of forests. They have contributed immensely to restore the degenerated forest. They are sustainably conserving the forest resource.
The NCST must be given more powers along with staff, finances etc. The implementation of the Atrocities Act must be done vigorously. Fast track courts must be put up. The legal Services Authorities Act must be utilised to provide the tribal people with the necessary legal services. The Forest Rights Act must be implemented in letter and spirit. The implementation lacunae must be done away with. The forest officials should undergo training programmes in the implementation of the act. Social empowerment schemes are an effective way to lift the lives of the tribal people. But they must take into consideration of lifestyle of the tribal people. Taking tribal populations into confidence is essential in any kind of planning of their development. Massive awareness creation is necessary to bring tribal people into the main fold.