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Editors --- "Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 - Digest" [2005] AUIndigLawRpr 29; (2005) 9(2) Australian Indigenous Law Reporter 69

Legislative Developments - India

Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

Introduction

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 (‘Forest Rights Bill’) was formulated by the Indian Ministry of Tribal Affairs to affirm the land rights of India’s forest-dwelling tribal peoples. The Bill seeks to recognise rights to forest produce, intellectual property and traditional knowledge, while also conferring duties on the Scheduled Tribes, and acknowledging the close connection between the well-being of forest dwellers and the health of the forest ecosystem.

The Forest Rights Bill has been criticised by the Ministry of Environment and Forests, which argues that the Bill will hinder efforts to preserve India’s dwindling forest cover, cause irreparable ecological damage. Social groups are also concerned that the Bill will harm the livelihood of forest dwellers who are not considered to be part of Scheduled Tribes.

In response to these concerns, the Ministry of Tribal Affairs has invited comment from all members of the public before action will be taken to finalise the Bill, and the Indian Cabinet has suspended its discussion of the Bill. Nonetheless, the drafting of the Forest Rights Bill, which explicitly recognises historical and social injustice as a serious and legitimate concern, represents a significant step towards the recognition of forest-dweller rights in India.

Scheduled Tribes (Recognition of Land Rights) Bill 2005

A BILL to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes who have been residing in such forests for generations but whose rights could not be recorded; to provide for a framework for recording the forest

rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.

WHEREAS the recognised rights of the forest dwelling Scheduled Tribes include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forests while ensuring livelihood and food security of the forest dwelling Scheduled Tribes;

AND WHEREAS the forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes who are integral to the very survival and sustainability of the forest ecosystems;

AND WHEREAS it has become necessary to address the long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:–

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Chapter II
Forest Rights

3. For the purposes of this Act, the following rights shall be the forest rights of forest dwelling Scheduled Tribes, namely:-

(a) right to hold and live in the forest land under the individual or common occupation for habitation or for self cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe;

(b) rights such as nistar, by whatever name called, and uses in erstwhile princely States, Zamindari or such intermediary regimes;

(c) right of access to, use or dispose of minor forest produce;

(d) other rights of uses or entitlements such as grazing (both settled and transhumant) and traditional seasonal resource access of nomadic or pastoralist communities,;

(e) right of habitat and habitation for primitive tribal groups and pre-agricultural communities;

(f) rights in or over disputed lands under any nomenclature in any State where claims are disputed;

(g) rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles;

(h) rights of conversion of forest villages into revenue villages;

(i) rights of settlement of old habitations and unsurveyed villages whether notified or not;

(j) right to access to bio-diversity and community right to intellectual property and traditional knowledge related to forest biodiversity and cultural diversity;

(k) right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving;

(l) rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of any State;

(m) any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes which are not mentioned in clauses (a) to(l) but excluding the right of hunting.

Chapter III
Rights of Forest Dwelling Scheduled Tribes

4.

(1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in the forest dwelling Scheduled Tribes, where they are scheduled, in respect of forest land and their habitat including right to collect, utilize or transfer minor forest produce in such manner as may be prescribed.

(2) The recognition and vetting of forest rights under this Act to forest dwelling Scheduled Tribes in relation to any State or Union territory in respect of forest land and their habitat shall be subject to the condition that such Tribes or tribal communities had occupied forest land before the 25th day of October, 1980 or such other date as the Central Government may, by notification in the Official Gazette, specify.

(3) A right conferred by sub-section (1) shall be heritable but not alienable or transferable.

(4) Save as otherwise provided, no member of a forest dwelling Scheduled Tribe shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is completed in such manner as may be prescribed.

(5) Where the forest rights recognized and vested under sub-section (1) are in respect of land, -

(i) such land in no case exceed an area of two and one-half hectares per nuclear family of a forest dwelling Scheduled Tribe;

(ii) the title to the extent given shall be registered jointly in the name of the male member and his spouse;

(6) The forest rights recognized and vested under sub-section (1) in the forest dwelling Scheduled Tribe shall –

(i) be exercised only for bonafide livelihood purposes and not for exclusive commercial purposes;

(ii) include the responsibility of protection, conservation and regeneration of forests.

(7) In case any forest right recognized and vested under sub-section (1) is disputed by any State Government or local authority, the Competent Authority appointed by the Central Government shall consider the records prepared at the time of declaring the area as a Scheduled Area, and while notifying any tribe to be or deemed to be a Scheduled Tribe under article 342 of the Constitution, along with evidence and then pass an appropriate order in the matter:

Provided that no order denying or refusing to grant any forest right shall be passed unless the aggrieved member or members of the community are given an opportunity of being heard.

5. The holder of any forest right under this Act shall ensure that –

(a) save as those activities that are permitted under such rights, no activity shall be carried out that adversely affects the wild life, forest and the biodiversity in the area including clearing of forest land or trees which have grown naturally on that land for any non-forestry purposes including reafforestation;

(b) catchment areas, water sources and other ecologically sensitive areas are adequately protected;

(c) the habitat of forest dwelling Scheduled Tribes is preserved from any form of destructive practices affecting their cultural and natural heritage;

(d) any activity that adversely affects the wild life, forest and the biodiversity is intimated to the Gram Sabha and to the forest authorities;

(e) appropriate measures taken in the Gram Sabha to regulate access to community forest resource and stop any activity which adversely affects the wild life, forest and the biodiversity are complied with.

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Chapter V
Offences and Penalties

8. If any holder of any forest right conferred by or under this Act or any other person –

(i) contravenes or abets the contravention any of the provisions of this Act, or

(ii) commits a breach of any of the conditions of the forest right vested or recognised under this Act; or

(iii) engages in unsustainable use of forest or forest produce; or

(iv) destroys wildlife, forests or any other aspect of biodiversity; or

(v) fells trees for any commercial purpose,

he shall be guilty of an offence against this Act and be punished with a fine which may extend to one thousand rupees and in case of the offence is committed more than once, the forest right of the person who has committed the offence shall be derecognised for such period as the District Level Committee, on the recommendation of the Gram Sabha may decide.

9. Where any authority or officers or member of such authority contravenes any provisions of this Act or any rule made thereunder shall be deemed to be guilty of an offence under this Act and shall be liable to be proceeded against and punished with imprisonment which may extend to thirty days or with fine which may extend to five thousand rupees, or with both:

Provided that nothing contained in this sub-section shall render any member of the authority or head of the department or any person referred to in this section liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

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Statement of Objects and Reasons

Forest dwelling tribal people and forests are inseparable. One cannot survive without the other. The conservation of ecological resources by forest dwelling tribal communities have been referred to in ancient manuscripts and scriptures. The colonial rule somehow ignored this reality for greater economic gains and probably for good reasons prevalent at that time. After independence, in our enthusiasm to protect natural resources, we continued with colonial legislation and adopted more internationally accepted notions of conservation rather than learning from the country’s rich traditions where conservation is embedded in the ethos of tribal life. The reservation processes for creating wilderness and forest areas for production forestry somehow ignored the bona fide interests of the tribal community from legislative frame work in the regions where tribal communities primarily inhabit. The simplicity of tribals and their general ignorance of modern regulatory frameworks precluded them from asserting their genuine claims to resources in areas where they belong and depended upon. The modern conservation approaches also advocate exclusion rather than integration. It is only recently that forest management regimes have in their policy processes realised that integration of tribal communities who depend primarily on the forest resource cannot but be integrated in their designed management processes. It underlines that forests have the best chance to survive if communities participate in its conservation and regeneration measures. Insecurity of tenure and fear of eviction from these lands where they have lived and thrived for generations are perhaps the biggest reasons why tribal communities feel emotionally as well as physically alienated from forests and forest lands. This historical injustice now needs correction before it is too late to save our forests from becoming abode of undesirable elements.

2. It is, therefore, proposal to enact a law laying down a procedure for recognition and vesting of forest rights in forest dwelling Tribes. The recognition of forest rights enjoyed by the forest dwelling Scheduled Tribes on all kinds of forest lands for generations and which includes both bona fide needs of forest land for sustenance and usufructs from forest based resources are the fundamental basis on which the proposed legislation stands.

3. The Bill, inter alia, provides for the following matters, namely:–

(i) it reinforces and utilises the rich conservation ethos that tribal communities have traditionally shown and cautions against any form of unsustainable or destructive practices;

(ii) it lays down a simple procedure for recognition and vesting of forest rights in the forest dwelling Scheduled Tribes so that rights, which stand vested in forest dwelling tribal communities, become legally enforceable through corrective measures in the formal recording system of the executive machinery;

(iii) it provides for adequate safeguards to avoid any further encroachment of forests and seeks to involve the democratic institutions at the grassroots level in the process of recognition and vesting of forest rights;

(iv) it addresses the long standing and genuine felt need of granting a secure and inalienable right to those communities whose right to life depends on right to forests and thereby strengthening the entire conservation regime by giving a permanent stake to Scheduled Tribes dwelling in the forests for generations in symbiotic relationship with the entire ecosystem.

4. The Bill seeks to achieve the above objects.

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The full text of the Forest Rights Bill is available in PDF format at
<http://www.tribal.nic.in/bill.pdf> .

A further discussion of the issues affecting India’s Tribal Peoples is included in the Draft National Policy on Tribals, extracted below at xx.