The issues you refer to are covered in this discussion of the Forest Rights Bill
by Kaushik Sanyal:



PART B: KEY ISSUES AND ANALYSIS

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, aims to
recognize and enforce the rights of FDSTs to forest land and resources. The main
challenge of the Bill is to harmonize the potentially conflicting interest of
recognizing forest rights of FDSTs while protecting forests and wildlife
resources. Lack of data

<http://www.indiatogether.org/images/related.jpg>

* Ecology for the people <http://indiatogether.org/2005/nov/rgh-ecology.htm>
* Forest fights, Indian style
<http://indiatogether.org/2005/sep/env-fordivide.htm>
* Understanding encroachment
<http://indiatogether.org/2003/jun/vup-encroach.htm>
* Their lands, our laws <http://indiatogether.org/2003/mar/vu-triballands.htm>

<http://www.indiatogether.org/images/pixels/ffffff.jpg> Although the Bill
proposes to recognize and vest forest land rights to FDSTs, there are no
reliable estimates of the number of families who will be benefiting from the
proposed legislation. Secondly, although the government estimates that there are
around 2-3 million people living inside India's protected areas (national parks
and sanctuaries) [6], there is no census of the number of FDSTs residing within
the core areas of national parks and sanctuaries [7]. Therefore, it is not
possible to calculate how much forest land would be required in order to
implement the provisions of the Bill.

Tribal Rights vs Environmental Conservation

* Differing Viewpoints

There are three main streams of thought regarding this issue. Some experts say
that tribal communities have lived in forests for centuries, and granting them
the formal right over forest land is just undoing a historical injustice. On the
other extreme, some conservationists say that certain species of animals (such
as the tiger) cannot co-exist with humans, and there is a need to reserve at
least some parts of forests to conserve these species. They also say that
increased human habitation in forests will cause depletion of forest cover,
resulting in significant ecological costs. A third view is that traditional
forest dwellers help in preserving forests, and giving them land rights would
actually help in ecological conservation [8]. However, there does not appear to
be any clear evidence to conclusively support any of these views. Some of these
issues are discussed below.

* Allotment of Land

The Bill prescribes 2.5 hectares as the upper limit of forest land that an FDST
nuclear family may be allotted. However, there is a possibility that it might
result in elimination of legal protection for forest cover, which could lead to
heavy ecological damage [9]. For instance, the possible depletion of watershed
forests of Central India, which allow penetration of rain water into the sub
soil, could lead to drying up of rivers such as Narmada, Tapti, Mahanadi,
Godavari, Krishna, and Cauveri [10]. The counter-argument is that the Bill only
seeks to recognize the forest rights of FDSTs who have been cultivating the
forest land for generations. In any case, the total forest land under
encroachment is estimated by the government at 13.43 lakh hectares [11], which
amounts to about 2% of the recorded forest area in the country [12].

It is also possible that confiscating forest land from the tribal families, who
possess more than 2.5 hectares of land, could lead to further impoverishment of
tribal communities [13].

* Core Areas

The Bill grants forest rights to FDSTs in core areas [14] of National Parks and
Sanctuaries provided they are relocated within five years. If relocation does
not take place within the prescribed time period, the holder would get permanent
right over forest land. Therefore, there would either be large scale relocation
of tribal communities or they would get permanent right over land in core areas.

Given India's poor track record in relocating people affected by development
projects, such as the Narmada Dam [15], or from sanctuaries such as Sariska and
Gir [16], the possibility of large scale relocation from core areas raises the
spectre of loss of livelihood and hardship for FDSTs.

There could also be an argument against advocating coexistence between wild
animals and tribal communities. Certain species such as tigers, rhinos, and
elephants are vulnerable to pressures from human land use [17]. These species
are typically large-bodied, slow breeding, need large areas, and vast resources
for survival. Some experts argue that it might be more realistic to identify
protected areas, which consist of National Parks and Sanctuaries (about 4.7% of
India's geographical area [18]) as inviolate while areas outside such reserves
could be utilised to serve the needs of tribal communities [19].

Coverage

* 1980 'cut-off date'

The Bill takes October 25, 1980 as the cut-off date for vesting and recognizing
forest land rights of the tribal community. However, the Bill does not specify
the kind of evidence that FDSTs would require to prove their occupancy of forest
land before 1980. Although states such as Maharashtra have adopted more
effective procedures than just documentary evidences (oral testimonies, evidence
of elders of the village etc.) for verifying claims [20], it is not mandatory
for every state to adopt such practices. Therefore, there might be a case for
specifying a set of admissible evidences in the Bill itself.

Also, it is unlikely that FDSTs would have the required documentary evidence to
prove their occupancy over forest land before 1980 [21]. Thus, in order to
minimize evictions, a case could be made for settling the claims of FDSTs on the
basis of current occupancy of forest land.

* Exclusion of certain communities

The Bill only recognizes forest rights of FDSTs who are defined as 'Scheduled
Tribes who primarily reside in forests and includes the Scheduled Tribes
pastoralist communities and who depend on the forests or forest lands for bona
fide livelihood needs.' Other communities who depend on the forest for survival
and livelihood reasons, but are not forest dwellers or Scheduled Tribes, for
instance in large sections of Chattisgarh and forest tracts of Uttaranchal [22],
are excluded from the purview of the Bill. This could lead to large-scale
eviction of such people and increase social tension among the various forest
communities.

The Bill also specifies that FDSTs would be granted forest rights only in
places where they are scheduled. However, such a clause could lead to denial of
rights to tribal communities on the ground that they do not reside in the area
where they are scheduled even though many tribal people have been displaced due
to development projects and creation of protected areas [23].

Role of Gram Sabha

Although the Gram Sabha has been given the power to initiate the process of
determining forest rights, the final decision rests with the DLC. The DLC is
also the authority that would decide the period for which an FDST's forest
rights is to be derecognized in case of repeated contravention of the provisions
of the Act. Although the Statement of Objects and Reasons of the Bill envisages
involvement of democratic institutions at the grassroots level, the Gram Sabha
does not have the power to recognize forest rights or enforce such rights.

Eviction and Relocation

The Bill does not place any explicit restriction on the methods that can be used
to remove non-eligible forest dwellers. This is a concern, given the history of
cases where brutal force has been used to evict tribal families [24]. The Bill
mentions that FDSTs would be relocated from core areas of National Parks and
Sanctuaries with due compensation. However, the Bill does not clarify exactly
what kind of compensation would be offered to the tribal people, what recourse
they would have if such compensation is not satisfactory or is altogether
denied.

Definitions

Certain terms mentioned in the Bill have not been defined. It could lead to
difficulty in implementing the provisions of the Bill. Clause 3 (j) mentions
'the right to protect, regenerate or conserve or manage any community forest
resource which they have been traditionally protecting and conserving for
sustainable use.' The term 'community forest resource' is not defined, and
hence, it is not clear whether these also include resources within government
owned forests including National Parks and Sanctuaries. The term 'nuclear
family' has also not been defined, though each 'nuclear family' has a right up
to 2.5 hectares of forest land. FDSTs are defined as those 'members or community
of the Scheduled Tribes who depend on the forests or forest land for bonafide
livelihood needs'. The term 'livelihood needs' is not defined which leaves the
scope of activities allowed open to interpretation.

Penalties

The Bill imposes a fine of Rs 1,000 on FDSTs in case of contravention of
provisions of the Act. If the offence is repeated, the person's forest rights
might be derecognized for such period as decided by the DLC on the
recommendation of the Gram Sabha. However, the Bill does not specify whether an
FDST has the right to appeal such a ruling of the DLC to a higher authority
(such as the State Level Monitoring Committee) other than to a court.

The member of a committee is also required to pay a fine of Rs 1,000 if found
guilty of contravening the provisions of the Act. However, this amount might not
be a sufficient deterrent. ¨’

Kaushiki Sanyal
<mailto:kaushiki@...,%20editors@...?subject=Feedback:%20L\
egislative%20Brief%20on%20Forest%20Rights%20Bill>
15 Apr 2006

Kaushiki Sanyal is a researcher with Parliamentary Research Service
<http://www.prsindia.org/> , a unit of the Center for Policy Research in New
Delhi. PRS is an independent initiative to make the process of law-making in
India more transparent, better informed and participatory.

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Notes

1. The National Advisory Council (Chairperson: Smt. Sonia Gandhi), made certain
recommendations, including the need for central legislation, to improve the
condition of the tribal population (see
http://nac.nic.in/concept%20papers/evictions.pdf)

2. National Forest Policy, 1988 <http://envfor.nic.in/divisions/fp/nfp.pdf>

3. (FP1) Regularization of Encroachment (FP2) Review of Disputed Claims over
Forest Land (FP3) Regularization of Pattas and Leases (FP4) Elimination of
Intermediaries and Payment of Fair Wages to the Labourers on Forestry Works
(FP5) Conversion of Forest Villages into Revenue Villages and Settlement of
Other Old Habitations (FP6) Payment of Compensation for Loss of Life and
Property Due to Predation/Depredation by Wild Animals.

4. In T.N. Godavarman vs Union of India (Writ Petition (C) No. 202 of 1995), the
Supreme Court issued an order "restraining the Union of India from permitting
regularization of any encroachments whatsoever without leave of this Hon'ble
Court." However, a letter of Inspector General of Forests, dated May 3, 2002,
instructs state governments to evict the ineligible encroachers and all
post-1980 encroachers from forest land in a time bound manner. The letter refers
to the SC order of Nov 23, 2001
(see http://nac.nic.in/concept%20papers/evictions.pdf).

5. Net Present Value (NPV) and Compensatory Afforestation are requirements
associated with using forest land under the Forest (Conservation) Act, 1980. NPV
of the diverted forest land is a measure of the potential value of such land.
The Supreme Court, in the course of Godavarman case, mandated that any user
agency, prior to diverting forest land, would have to pay the NPV of that land
to a Court created Central Government agency called Compensatory Afforestation
Management and Planning Agency. The value, which is subject to upward revision,
was set at the rate of Rs 5.80 lakh to Rs 9.20 lakh per hectare of forest land
depending upon the quantity and density of the land in question converted for
non-forest use.
(see http://164.100.194.13/allied_forclr/htmls/Guidelines/Guidelines.htm, and
http://www.elaw.org/resources/text.asp?id=2998)

6. Press Information Bureau, Govt. of India
<http://pib.nic.in/feature/feyr2001/fmay2001/f240520011.html>

7. M.D. Madhusudan, "Of Rights and Wrongs: Wildlife Conservation and Tribal
Bill", (Economic and Political Weekly), November 19, 2005
<http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9360&filetype\
=html>

8. Pradip Prabhu, "The Right to Live With Dignity", (Seminar), No. 552, Aug 2005
<http://www.indiaseminar.com/2005/552/552%20pradip%20prabhu.htm>

9. P.V. Jayakrishnan, "Is there a need for this Bill?", (Seminar), No. 552,
August 2005 <http://www.indiaseminar.com/2005/552/552%20p.v.%20jayakrishnan.htm>

10. Beware of Tribal Bill's Consequences: Buch, Hindustan Times, May 21, 2005
<http://www.hindustantimes.com/2005/May/22/5922_1371612,0015002100010001.htm>

11. Press Release, Ministry of Tribal Affairs
<http://pib.nic.in/release/release.asp?relid=16228&kwd=Recognition+of+Forest+Rig\
hts>

12. Bela Bhatia, "Competing Concerns", (Economic and Political Weekly), Nov 19,
2005
<http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9359&filetype\
=html>

13. Madhuri Krishnaswamy, "One Step Forward, Two Steps Back", (Economic and
Political Weekly), Nov 19, 2005
<http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9362&filetype\
=html>

14. Core Areas: National Parks and Sanctuaries are required to keep certain
areas inviolate for purposes of wildlife conservation. The areas may be
determined by the Ministry of the Central Government dealing with Environment
and Forests.

15. Mike Levien, "Narmada: Life, Struggle and Exodus", (India Together), August
2004 <http://www.indiatogether.org/2004/aug/hrt-narmada.htm>

16. Ghazala Shahabuddin, Ravi Kumar, Manish Shrivastava, "Pushed over the Edge",
(Economic and Political Weekly), Aug 6, 2005
<http://www.epw.org.in/showArticles.php?root=2005&leaf=08&filename=8950&filetype\
=html>

17. Refer M.D. Madhusudan (Note 7)

18. Wildlife Institute of India's Executive Summary, "Wild Life Protected Area
Network in India: A Review"
<http://www.wii.gov.in/envis/panetworks/panetwork.html>

19. Valmik Thapar's Dissent Note in the Report of the Tiger Task Force (Joining
the Dots) <http://projecttiger.nic.in/TTF2005/pdf/full_report.pdf> set up by
the Ministry of Environment and Forest

20. Jean Dreze, "Tribal Evictions from Forest Land", March 2005
<http://nac.nic.in/concept%20papers/evictions.pdf>

21. Refer Madhuri Krishnaswamy (Note 13)

22. Refer Madhuri Krishnaswamy (Note 13)

23. Madhu Sarin, "Scheduled Tribes Bill, 2005: A Comment", (Economic and
Political Weekly), May 21, 2005
<http://www.epw.org.in/showArticles.php?root=2005&leaf=05&filename=8669&filetype\
=html>

24. Refer Jean Dreze (Note 20)



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