Sunday, December 27, 2009

FOREST RIGHTS ACT AND TRIBAL WELFARE

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The Government of Andhra Pradesh has touched yet another historic landmark in the service of the downtrodden people when Chief Minister Dr. YS Rajasekhara Reddy distributed the first 200 pattas-the land ownership documents in the form of certificates of titles-to tribals who met him in his camp office on June 08, 2009. The state government decided to distribute 12 lakh acres of land to three lakh beneficiaries under the Forest Rights Act, 2006 in phases.

Talking on that occasion, Chief Minister Dr. Reddy said the government's move will give self confidence to the tribals. "Within one week we will provide legal rights on 444,000 acres of forest lands to 128,000 tribal people. The Pattas to those lands will be distributed to them in various districts in the presence of Ministers and Legislators of those areas," Dr. Reddy said. He directed the officials to distribute land Pattas of 665,000 acres to another 200,000 tribals. To protect the environment, tribals will be encouraged to take up horticulture and coffee and rubber plantations in these lands. CM on July 5th in Rampachodavaram distributed pattas to some beneficiaries, adding to 25,000 acres in Agency areas of the district.

Of the total tribal population in Andhra Pradesh, 43.21 per cent were cultivators, 43.72 per cent agricultural laborers and the remaining 13.07 per cent in different occupations. In the last three years, 30,262 acres of government land had been assigned to 16,127 ST farmers in the state, said the CM.

For the first time in India, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Act 2 of 2007) was implemented in the south Indian state of Andhra Pradesh.

The Government however had to fight a legal battle for obtaining favorable interim orders from AP High Court, for distribution of certificate of titles. Final verdict is awaited from the Apex Court, where the case is posted for common hearing involving several state governments and center on 4th August, 2009.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Act 2 of 2007) is a key piece of Central Forest Legislation passed on December 18, 2006, which provides for alienation of forest land up to 4 hectares to any claimant, who is in (illegal) occupation of the land as on December, 2005. It has also been called the "Forest Rights Act", the "Tribal Rights Act", the "Tribal Bill", and the "Tribal Land Act." The law confirms the rights of forest dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India.

The Act received assent of the President on December 29, 2006 but came into force only on December 31, 2007. It was only after strident agitation by political parties and activists culminating in massive mobilization of tribal peoples from different parts of the country that a much diluted set of rules was finalized and published on January 1, 2008.

The recognized rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers 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 other traditional forest dwellers.

Supporters of the Act claim that it will redress the "historical injustice" committed against forest dwellers, while including provisions for making conservation more effective and more transparent. The demand for the law has seen massive national demonstrations involving hundreds of thousands of people.
However, the law has also been the subject of considerable controversy in the press. Opponents of the law claim it will lead to massive forest destruction and should be repealed. Views were expressed by some that, vesting substantial ownership rights with the tribal and traditional forest dwellers will lead to large scale destruction of forest leading to an ecological catastrophe.

An ambiguity in the Act and rules relates to the population. In the Act 'Forest Dwelling' Scheduled Tribes "means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forest or forest lands for bona fide livelihood needs, and includes the Scheduled Tribe pastoralist Communities." 'Other traditional forest dwellers' means any member or community who "has for at least three generations prior to December 13, 2005, primarily reside in and who depends on the forest or forest land for bona fide livelihood needs". 'Forest land' means "land of any description falling within any forest area and includes unclassified forests, un-demarcated forests, existing or deemed forests, protected forests, reserved forests, sanctuaries and national parks". This means those who do not primarily reside in forest land do not come within the purview of this Act.

In 2003 India recorded a forest area of 7, 74,746 square kilometers. It was 23.57 per cent of the total geographical area of the country, but the actual forest cover was 6, 78, 333 square kilometers which was 20.64 per cent of the geographical area of India and 87.56 per cent of the recorded forest area of the country. The remaining 12.44 per cent area, though recorded as forest, actually did not have forest cover.

Mr. J V Sharma, 75 years old retired Indian Forest Service Officer of Andhra Pradesh cadre, challenged the legality and Validity of the Act before the High Court of Andhra Pradesh in October, 2007. He even motivated likeminded people in Tamil Nadu, Maharashtra, Karnataka and Orissa to file similar Public Interest Litigations in their respective States. His basic contention was that "the Act does not take into consideration the basic requirements of forest conservation and does not lay down the checks and balances against misuse of the Act and situations prejudicial to contiguity, protection and management of forests".

Mr. Sharma's another contention was that "it is an accepted fact that forests are the most important component of environment and its depletion or reduction will have an irreversible adverse impact on the environment besides hurting the tribal population by way of loss of habitat as well as sustenance base. In short, the measure which is meant to benefit the tribal will prove to be counterproductive in the long run".

The High Court of Andhra Pradesh passed the same directions on 19.08.2008 as that of Madras High Court dated 30.04.2008 in a writ petition on the same issue that "If claims are made for community rights or rights to forest land and applications are submitted as per provisions of the Act, then the process of verification of the claim after intimation to the concerned claimant shall go on, but before the certificate of title is actually issued, orders shall be obtained from the Court". Thus Mr. Sharma could obtain an interim direction from the HC stipulating prior permission for issue of title deeds. Despite extraordinary undue haste from the Government to distribute as much land as possible, the interim order stalled further action on distribution till May 2009.

Government of Andhra Pradesh filed an implead petition in the High Court of Andhra Pradesh to permit it to issue certificate of title to eligible claimants pending disposal of the writ petition. Meanwhile Government of India had approached the Supreme Court for transfer of cases pending in High Courts to the Supreme Court for common hearing to eliminate any possible inconsistent verdicts by different High Courts.

Mr. Sharma filed counter opposing the request of the implead petitioner on the plea that, the issue of certificate of title will amount to final settlement of the claim resulting in irreversible and irreparable injury to the Nation at large and environment and forests in particular. If interim directions are withdrawn, Forest land of an extent of 10.86 lakh acres will be lost forever, he pleaded.

The High Court of Andhra Pradesh however passed interim orders on 01.05.2009 permitting the State Government to issue certificates of title pending disposal of the main writ petition. Distribution spree is in progress. The Transfer Petitions stands posted to 04.08.2009 for common hearing in Supreme Court of India.

What is at stake is nearly 11 to 12 lakh acres of forest land, an invaluable environmental asset which the Nation can never rebuild on one hand as viewed by environmental activists and empowering tribal with forest rights that has been long pending as viewed by others. Both ways there are advantages and disadvantages and could there be a via media line?

Sharma in an open letter to Prime Minister of India in September 2008, explained in detail, several implications and long term disadvantages involved in the Act. He requested the PM to pay his attention on the main issue of tribal welfare and consider the same dispassionately in the overall interest of the Nation and the generations to come.

He brought to the notice of the Prime Minister, that, the said legislation is a knee-jerk reaction to problems of the tribal and lacks the sincerity of purpose and commitment. Land and farming may not really bring a tribal on par with the one in civil society, given the uncertainties the farming sector is beset with in the existing scenario. The legislation also seeks to dismantle all that has been conceived and evolved over decades in Independent India in the form of Constitutional Provisions, National Policies, Legislative measures, Reports of Commissions, Policy assertions by Government and International Agreements/Obligations besides working against the Nation's policy on environment and forests.

Prime Minister has not responded. Efforts of Sharma are on. Whether tribal rights are important or forest conservation is important or both to be treated as equally important are the questions before the concerned.

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