July 10, 2007
Re: Draft Forest Rules - Objections.
The Amendment in the Wildlife (Protection) Act, 1972 by which the National Tiger Conservation Authority was set up as also the Forest Rights Act and the Rules provides for greater role of people in daclaration of National Parks, Sanctuaries and specifically
in creation of critical wildlife habitats as well as Inviolate areas for wildlife conservation. However, the scheme is such that now if an area is to be declared as critical wildlife habitat, the Consent of the individuals as well as gram sabha will be required
at almost every stage i.e from relocation to acceptance of the relocation package. Thus the whole process is Consent driven. (This to me is fine since there is a need to ensure greater public participation in decisions which concerns the life of the people)
Unfortunately, if the same area is to be opened up for mining or construction of a hydel power project or even SEZ, no such consent will be required. All that will be required is a "public Hearing", which too is not mandatory; the Panel for public hearing
will comprise of District Magistrate or Additional District Magistrate and no representative from the Panchayats or Gram Sabha and further the Rehabilatation and other issues need not be even shared with the public. The Project proponents need not explain
as to why other alteratives have not been considered.
Thus while we would have effectively delayed or have made the process of creation of National Parks and Sanctuaries as also critical wildlife habitat difficult, there is no safeguard so far as protection of these areas are concerned. Thus, while the Forest
Department has to follow the "consent" prosedure for declaration of the area, a Mining Company in order to mine the area need to follow the EIA procedure as contained in the highly diluted Environment Impact Assessment Procedure.
The proponents of the Forest Rights Act, have thus played into the hands of the Mining and Industrial lobby since National Parks and Sanctuaries are the only areas where any such actvity is prohibited. The Act also targets the weakest of all the State
agencies i.e the Forest Department while it does not impact the Private Sector at all.....
July 10, 2007
Rule 13 practically covers all possible sources for gathering evidences with regard to establishment of rights. However, a word of caution needs to be put across to the nodal authorities that forest
resources in the country are not inexhaustible. In fact, they are suffering depletion at an alarming rate. The instant Act while tackling the core issue of poverty among tribals, may have just released the genie of greed among the expectants,
specially since OTFD, who out number the tribals by a factor of three or more, are now part of the exercise. Forest areas in non Scheduled / Tribal Areas States stand to be affected in a major way by way of loss of forest land, productivity, biological diversity
as well as water security. A lot, therefore, is at stake.
Rule 16 - 21 concern declaration and notification of Critical Wildlife Habitats. The State Chief Wildlife Warden may have formulated his comments on the same. It would be in the fitness of things to
obtain his comments on the impact of these rules on the wildlife existing outside PAs. There is a need for the Chief Wildlife Warden to exercise abundant caution while commenting on Rule 19, i.e. resettlement package as per section 4(2)(d). For this purpose,
not only the existing provisions of the Constitution but also State laws pertaining to Resettlement would need to be studied. There are many areas where there would be need to “read between the lines”. Hence, assistance of legal experts should be actively
THE ABOVE COMMENTS ARE OF A VERY PRELIMINARY NATURE. THE MOEF HAS NOT ALLOWED TIME FOR WIDER CONSULTATIONS. IT WOULD BE WORTHWHILE TO REQUEST THE MOEF TO URGE THE MINISTRY OF TRIBAL AFFAIRS NOT TO RUSH THROUGH THE PROCESS
OF FRAMING RULES. IT MAY BE CONVEYED THAT FOREST DEPARTMENT IS ANTI TRIBAL. THE COUNTRY NEEDS TO STRIKE A BALANCE BETWEEN
CONFERMENT OF FOREST RIGHTS AND ENVIRONMENTAL SECURITY OF THE COUNTRY. IT MAY BE BORNE IN MIND THAT POVERTY IS THE BIGGEST POLLUTER. BUT LET IT NOT BECOME THE EXECUTIONER OF THE NATION’S BIOLOGICAL RESOURCES AND, THEREFORE, ECOLOGICAL SECURITY. WE ARE
A COUNTRY OF OVER 1 BILLION PEOPLE, WHO OCCUPY BARELY 2.4% OF THE EARTH’S LANDMASS AND 1% OF THE EARTH’S FOREST COVER! OVER 17% OF GOBAL LIVE STOCK MAURADS OUR NATURAL LANDSCPES DAY IN AND DAY OUT. CONSEQUENTLY, OURS RIVERS CARRY 35% OF GLOBAL SILT LOAD! STATES
LIKE MAHARASHTRA, WITH PER CAPITA WATER AVAILABILITY OF ONLY 595 CUBIC METERS / ANNUM, ARE ALREADY SITTING ON THE BRINK OF A WATER FAMINE. A MAJORITY OF OUR FORESTS OCCUPY UPPER CATCHMENTS. THAT TRIBALS OTHER POOR NEED TO BE ADEQUATELY COMPENSATED IS NOT DENIED.
IN FACT, IT IS THE NEED OF THE HOUR. HOWEVER, THERE IS NO NEED TO ACCOMPLISH IT WITH AN ANGRY FIST POINTED AT FOREST ADMINISTRATION. THE EXISTING FOREST LAWS ARE QUITE ADEQUATE TO ACT AS THE FRAMEWORK FOR THE TRIBAL ACT. THERE IS A NEED TO WORK FOR ACHIEVING
July 10, 2007
Rule 4.9 needs to be closely looked at in the light of Constitutional provisions cited above as well as existing provisions of Section 28 of the Indian Forest Act, 1927. Section 13 of the Act already
clarifies that “save as otherwise provided in this Act and the Provisions of the Panchayats ( Extension to the Scheduled Areas )Act, 1996, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time
being in force. Therefore, rather than framing rules which tend to override even the Constitution, existing provisions of the Indian Forest Act, 1927 may be used. Of course, it would involve restricting the definition of community forest resources to the legal
limits of Panchayats / Gram Sabhas. It may be further borne in mind that ownership of MFP has been limited only to community and that too, in the Scheduled Areas.
Rule 4.11 concerns right to Intellectual Property and Biodiversity ( Section 3(1) (k) ).
The entire issue of access to biological resources has been addressed by another Central Act, viz. the Biodiversity Act, 2002. In so far as the question of Intellectual Property Rights is concerned, National Biodiversity Authority is the final Authority.
Every State / UT is required to set up a State Biodiversity Board under that Act. It should be sufficient to provide in the instant rule that the enjoyment of right to biodiversity of a village shall be in accordance with provisions of that Act and rules made
under the same. The Biodiversity Act already recognizes claim of the local community to bio resources and hence adequate and elaborate mechanism would be prescribed once the State Board is set up. Panchayats / Gram Sabhas have an important role to play in
the management of local bio resources and are, therefore, vital stakeholders in the ownership of usufructs relating to the same.
Rule 4.12 & 4.13 concern
in situ rehabilitation and settlement of displaced persons.
MOEF should frame guidelines incorporating adequate safeguards for rehabilitation on account
of non forestry projects ( including resettlement in PAs ).
With these provisions the entire burden of resettlement of the displaced persons from forest lands even for non forestry purposes would shift to forests, thereby converting forests into virtual
land banks. In the ensuing scenario of continuous fragmentation of forest lands, all thoughts of scientific forest and wildlife management should be abandoned.
Rules 5 (a) to (e) seek to
shift the mantle of forest / wildlife management from the Forest Department to Gram Sabhas. This needs to be accomplished strictly in conformity with the provisions of Articles 243, 243A to 243O and their application to the Scheduled Areas. As already stated,
existing provisions of Section 28 of the Indian Forest Act. In fact, the existing draft may render the existing forest and wildlife management ineffective, which would be dangerous for ecological and water safety of India, specially Maharashtra. It would
be in the fitness of things for the State Forest Departments to notify village forests, make rules for their joint management and hand over the same to the respective Panchayats. These forests may be defined as community forests or community forest resources
in the Act.
Rule 7 needs to be in conformity with the Constitutional provisions existing with regard to Panchayats / Gram Sabhas. The State Legislatures have an important role to play in enactment of laws pertaining
to Panchayats / Gram Sabhas. In fact, in States like Maharashtra, elaborate Panchayat Acts exist which have prescribed a distinct administrative niche for Gram Sabhas by way of development sub-committees. Care should be taken to ensure that the existing administrative
frame work is not disturbed. The instant rule provides for election of members of the proposed Forest Rights Committee! It needs to be examined whether such a provision exists in the Village Panchayats Act. In fact, Forest Rights Committee should be formed
in accordance with the provisions of the Village Panchayats Act.
Rule 12 : There is a need for exercising abundant caution as “other traditional forest dwellers” ( OTFD )
may come to form bulk of the beneficiaries. It may be borne in the mind that about 24 million people inhabit forested villages in the State. There are, on the other hand, 9.1 million tribals in the State, not all of whom dwell in forests. The
process of identification of OTFD is to be set in to motion by the Gram Sabha. We may be creating a class of people, who, stand to be called OTFD irrespective of their caste, creed and race and, above all, economic status besides political power.
July 10, 2007
Rule 4(2) of the draft rules seeks to include fuelwood and stones in the list of MFP. These are included in the definition of MFP
in the Act.
Rule4.3(a) needs to be qualified with the inclusion of MFP as defined in the Act
rather than “all MFP regardless of whether they are nationalized, or previously restricted or prohibited and all items provided in all state Acts, Rules, Orders and Directions.”
Rule 4.3(b) in its application to forest areas outside the village boundaries, has the potential to lead to
inter village conflicts.
Rule 4.3© The Act confers ownership of MFP on the
beneficiaries under the Act. The question of payment of royalty should not arise!
Rule 4.3(d) is near impossible to implement in view of jurisdictional issues already discussed above.
Rule 4.3(e) goes beyond the scope of Section 3© wherein it is limited to “right of ownership, access to collect, use and dispose of minor forest produce which has been traditionally collected within
or outside village boundaries.”
& 4.3(g) similarly, go beyond the scope of the Act and serve to further limit the powers under the Indian Forest Act, 1927, with regard to transit to forest produce. Therefore, they need to be opposed.
& 4.4(d) may create right of communities from other States such as Kathiawadis of Gujarat, Graziers from Rajasthan, shepherds from various States thereby not only causing irrevocable damage to forests but also leading to inter
community conflicts. In fact, the right to grazing should be subject to the carrying capacity of forests and be in conformity with the Grazing Policy / Rules framed by the respective States.
Forest grazing was made free in 1935, which only lead to vast devastation in natural forests. It is well known that grazing is the major cause of forest degradation in India.
Rule 4.5(a) may only
legalize the pernicious practice of shifting cultivation.
Rule 4.5© & Rule 4.5(d)
provide for the role of traditional community institutions in the delineation and determination of customary habitat suo motu initiation of process of determination of forest rights by SDLC. This may lead to political
interference, and should, therefore, be avoided. Suo motu determination of rights is not prescribed in the Act.
Rule4.8(b) right of the forest dwellers to MFP which is not prescribed under the Act, except for “critical wildlife habitats”.
July 10, 2007
Some of the other glaring inconsistencies are:
Rule 3 ( 1 ) defines the Gram Sabha. But the definition needs to strictly conform to the Constitutional provisions. It may be borne in mind that the provisions relating to thew Scheduled areas are restricted to only 2278 of the 15694 forested villages
in the State. The Seventy-third Amendment empowers the Panchayat and not the Gram Sabha. The Bombay Village Panchayats Act, 1958, which was amended in 2003 to incorporate greater role for Gram Sabhas, deals with this issue differently. The expression,“Adult
members” does not find a mention in the Constitution.
Instead, the Constitution mentions Gram Sabha as “a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level.
Rule 3 (2) prescribes functions of the Gram Sabha under the Act, which, as per the Constitution, is a duty cast upon the State Legislature.
Rule 3(4) prescribes for constitution of Sub Divisional Committee. Under Clause ©, it includes – The Forest Officer in charge of a Subdivision. This needs to be changed as this designation
may not exist universally. An ACF or SDFO would be a better proposition.
Rule 4(1)(a) seeks to define “family” as mentioned in Section 4(6) of the Act. But, the definition appears to be at variance with provisions of Section 4(4) of the Act. The concept of more than one wife and that of dependent persons other than minor
children seeks to expand the scope of claim as to a forest right. There is a need to restrict this definition.
Rule 4(1)© also appears to overshoot the provisions of the Act in providing that “in case of community rights to land, the entire
area under actual use may be recognized and vested with the community.”
Section 4(6) on the other hand, unambiguously provides that “where the forest rights are recognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of sub-section (1) of Section 3 such land shall be under the occupation
of an individual or family or community, on the date of commencement of this Act and shall be restricted to the area under actual occupation
and shall in no case exceed an area of four hectares.” In Bhamragarh Forest Division, 35 tribal families are practicing
shifting cultivation over 10,000 ha of forest land. The Forest Department of Maharashtra does not admit existence of shifting cultivation in the State. If the draft rule’s provisions are allowed to go unchallenged, the department stands to lose
10,000 ha of thick forests @ about 280 ha / family!
July 10, 2007
Comments by Ashok Sharma I.F.S
SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS
( RECOGNITION OF FOREST RIGHTS ) RULES, 2007
Of the 43711 villages in the State, 15694 are forested. The forested villages have a population of over 24 million which accounts for about 25% population of the State.
There are 353 tehsils in the State, of which 27 are located in the Scheduled Areas, where 9.1 million tribal population of the State lives. The draft rules have the potential to cause
major adverse impacts on forests and wildlife in the State, specially in light of the Constitutional provisions which many of these rules seek to override.
The Act defines “community forest resources” as customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape
in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Pars to which the community had traditional access. However, Atricle 243G, which empowers Panchayats and not the Gram Sabha,
to plan and implement village level schemes, does not include the same in the Eleventh Schedule, i.e. the Village List! The Provision of the Panchayats ( Extension to the Scheduled Areas ) Act, 1996 also does not make any exception in this regard. Obviously,
the Constitution does not envisage extending the powers of Panchayats beyond the Village limits.
The Provision of the Panchayats ( Extension to the Scheduled Areas ) Act, 1996, introduces the role of Gram Sabha in the village administration. The instant Act and the draft rules, however, seek to extend purview of the The
Provision of the Panchayats ( Extension to the Scheduled Areas ) Act, 1996 to the non Scheduled Areas too!
The Eleventh Schedule incorporates “maintenance of community assets” it item no. 29. However, it remains to be clarified whether this includes “community forest resources”
per se. Although, the Indian Forest Act, 1927, as applicable to the State of Maharashtra, does not define “community forests”, it does provide, under Section 28, for the constitution of “village forest” But, such village forest also is limited to the boundaries
of the village Panchayat concerned. “Community Forest” is also not defined either in the Act or in the Draft Rules.
Similarly, the Constitution empowers the State Legislature to powers of Panchayats / Gram Sabhas, for the Scheduled and other areas. Can this power
be over ridden by a set of Rules, made under a Central Law? The draft rules seek precisely to do so which appears to be going beyond the Constitutional provisions.
The Draft Rules introduce certain definitions which are not incorporated in the Act. They include “bonafide livelihood needs”, “claimant’, ‘fixed demand holdings”,
“forest rights committee”, “other traditional rights” and “primarily reside in and who depend on forests or forest lands”. Under the definition of other traditional rights, traditional agricultural practices have been incorporated, which is a gross externality.
July 10, 2007
Absence of a time frame for the determination of rights is a lacuna which could result in prolonging the status qou particularly by those individuals/Gram Sabhas who may be loosing out or may not be
benefiting by the provisions of the Act. Hence, it is important that a time limit for completing the exercise be imposed in Rules 19, 26 to 29 and 34.
SURRENDER OF LAND/FUTURE ENCROACHMENT
The rules are completely silent on the mode and manner for the surrender of land/rights, which are declared to be beyond the permissible parameters or by those whose claims are rejected.
The rules are also silent on the issue of prevention of future encroachment/ occupation of forestland by the present beneficiaries or by the existing/future members of their families or by others. This pregnant silence carries within it a signal to hold
on to illegally occupied forest land and to further encroach on forest lands, keeping in mind the pace of regularizations during the last four decades, that the government at some point of time in the immediate future, for reasons not very difficult to guess,
would buckle under and regularize such encroachments. Absence of these twin checks would prove to be disastrous for the forests and wildlife and the ecology of the country.
July 10, 2007
This rule confers rights over ‘disputed lands’ i.e. those forests, sanctuaries, national park lands where the final notification has yet not been issued. Rule 16 (2) shifts the onus of proof on the
State by declaring that “the presumption of rights over such disputed lands shall be in favour of the claimant unless otherwise decided.”. This presumption places the persons in illegal possession of the alleged disputed lands at an
advantageous position in comparison to those who are in possession of other forestlands. In the case of persons who are in possession of non-disputed forestlands the onus is on them to prove their possession by producing evidence as enumerated in Rule 31.
This classification in favour of disputed land occupiers is arbitrary. Secondly, the term ‘disputed land’ is vague and has not been defined under the Act nor explained under the Rules. Thirdly, the power conferred on the Gram Sabha and other executive bodies
to decide on the “non-adherence to due process of laws” in Rule 16 (1) is
contrary to all prevailing jurisprudence. The issue whether an action or order is in violation of the due process clause can only be decided by a judicial authority. It is a judicial function and cannot be conferred on any of the executive authorities
created or referred to under the said Act or Rules.
The incorporation of the clause “who may have been evicted without due process of law; pattas in forest villages and pattas issued but cancelled or extinguished without following the due process of
law” in Rule 17 is illegal for the reasons stated above under Rule 16.
Duties and functions conferred under the said Rule are in violation and disregard of the provisions of Part IX of the Constitution and the Panchayats (Extension to the Scheduled Areas) Act, 1996.
RULE 31 (4) (a):-
Admitting the claims of ‘other traditional forest dwellers’ on the basis of physical attributes/traditional structures/pictures would be travesty of justice particularly due to the exclusion of the
Evidence Act. It’s a loophole which would lead to wide abuse as there would hardly be any one alive who could possibly vouch on the existence of an un-recorded structure to the effect that it has been in existence for the last over 75 years. A person vouching
on the existence of 75 years old structure need to be atleast (75+12 =87) years old. Secondly, pictures by themselves would not establish the 75 plus years antiquity of such physical attributes/traditional structures.
RULE 31 (4) (b):-
The clause “recognized as having been legitimate resident of the village at an earlier period of time” as applicable to ‘other traditional forest dwellers’ is again vague and subject to interpretation
which could be either way. It is suggested that proof for recognition of residence should be recorded in a public document and not a private document or oral statements.
(Continued in next post)
July 10, 2007
Parliament by section 14 (1) of the RFR Act delegated the
authority to the Central Government to “make rules for carrying out the provisions of the Act”. Section 14 (2)
of the said Act lists the parameters and purposes for which the rules can be made by the Central Government. The Central Government in the exercise of such delegated
power can not enlarge the scope of the provisions of the main legislation i.e. the Act. The Central Government by defining terms like “bonafide personal needs”, “other traditional right”, “primarily reside in”, “sustainable use” etc. has gone beyond
the delegated authority.
Gram Sabha cannot be a judge its own cause and decide civil disputes between its own members in as much as all the adult members of the village constitute the Gram Sabha as per Section 2 (g) of the
Act. Secondly, the Gram Sabha would be deciding the extent of customary boundary of the village. The term “Customary boundary” in itself is vague and which would lead not only to strife inter se Gram Sabhas but would also devastate the forest areas in issue.
Reason possibly could be, each village Gram Sabha in order to out do the other, trying to take the maximum of forest produce from such unchartered imaginary boundaries.
Rule 11 (1): Inclusion of “any person wholly or substantially dependent on the family” within the term family is inconsistent with provisions of the Act. It could lead to abuse
for claiming extra benefits under the scheme of the Act.
RULE 13 & 14:-
Minor forest produce, its use and utility is just not limited or exclusive for the
residents of forest areas. The minor forest produce is an integral and a crucial component for the preservation and conservation of the flora and fauna of the area, particularly for areas which are ecologically important e.g. Sanctuaries, National Parks
etc. Similarly, is the role and importance of water bodies, the use and control of which has been handed over to the Gram Sabha. There is absence of effective mechanism to monitor the “Sustainable” exploitation of such minor forest produce and water bodies.
Keeping in view the provisions of Rule 24 in particular those of Rule 24 (3) which declares that in case of conflict between a decision of a the Gram Sabha and other usergroup e.g. forest or wildlife department, the decision of Gram Sabha shall prevail.
( Contd in the next post)
July 10, 2007
|Scheduled Tribes (Recognition of Forest Rights) Bill
|The value of forests in the lives of local communities has been widely discussed in academic literature, yet forest use is a domain of contestation. The new Scheduled Tribes (Recognition of Forest Rights) Bill needs to be contextualised
in the ground reality of conflicting interests and claims. First, the category of scheduled tribes is contested in social science discourse. Second, forest and tribal policy in India is not adequately sensitive to value systems of local communities and this
creates considerable contestation between administration and the local people. This paper revisits these contestations in the worldwide body of academic discourse. There has been fair consensus in the literature that value systems and customary institutions
of local communities have well-developed mechanisms that regulate sustainable lifeways and conserve local ecosystems, though unquestioning acceptance of these may also lead to errors. What is required is for policy to effectively deliver benefits to people
and conserve biological diversity, and it is anthropologists who can mediate a dialogic space between the people, their civil society institutions, networks of advocacy, public and local intellectuals, the academia, policy and governance.
|--Arnab Sen , Esther Lalhrietpui--
|30-09-2006 [SPECIAL ARTICLES]
|Issue : VOL 41 No. 39 September 30 - October 06, 2006