Old wine in new bottle
The stated objective of the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 is to correct the injustices suffered by the country's tribal people since colonial times. This is indeed laudable and the bill needs to be tabled in the parliament. But if passed in it's present form, the tribal bill is sure to fail in its stated objective. This is because the proposed legislation remains caparisoned in the framework of existing forest laws and policies.
For example, Section 4 (2) of the tribal bill states that "The rights...under the proposed act shall be subject to cutoff date of October 25, 1980 or any other date specified by the Union government". The background note accompanying the bill -- available at the website of the Union ministry of tribal affairs (the nodal agency piloting the bill) -- elaborates: "The bill supplements the efforts of the ministry of environment and forests (moef) in regard to regularization of pre-1980 eligible encroachments and conversion of forest villages under the Forest Conservation Act, 1980, by providing a legislative framework to the existing date."
There is more evidence of the tribal bill's adherence to earlier forest acts. For example, to be recognised as a forest village, a tribal habitation or an agricultural patch would have to be registered in government records. But it's well known that there are several villages that do not exist in forest department records, the census data ignores them and they have no presence in cadastral maps as well. So, the people of these villages will most certainly not fall under the purview of the new tribal bill. And then, what about people who have settled in forests as a result of agrarian duress? Will they be given rights over forests?
Any tribal land rights act should guarantee rights to a maximum number of tribals. But this seems unlikely in view of the Union ministry of tribal affairs' repeated clarifications that the proposed legislation is only a continuation of earlier forest conservation acts. But the tribal bill can still achieve its stated objective. For that to happen, there should be concerted opposition for removing the October 25, 1980 cutoff for settling all tribal claims. All tribal habitation inside forests -- whether permitted or not permitted, whether recorded or not recorded -- should be included within the purview of the bill.
The state government -- or any other regional authority mandated by the Union government -- should decide the cutoff date for vesting rights and recording tribal habitations. This will ensure that the process of settling tribal rights is sensitive to diverse regional situations. It will also guarantee that the country's federal structure is respected. And above all, this will ensure that the Union government will be cagey in masquerading its flawed 'encroachment regularisation' policy in the garb of a pro-people's bill; people's representatives will nip any such move in the bud.
The absent state Supporters of the tribal bill argue that it will take forests out of state control and place them under gram sabha s. This democratic intention is indeed praiseworthy. But then how exactly is this intention expressed in the tribal bill? It makes it presence in section 5: duties of forest-dwellers. Yes, the tribals should certainly protect the forests. But what about the state's duties towards them? The bill is totally silent on that. This absence clearly indicates the government's inclination to sacrifice tribal interests to the ravages of the free market. For example, the bill authorises forest dwellers to sell forest produce for their " bona fide " livelihood needs. But there is nothing to ensure that this provision does not strengthen the already dominant trader-contractor areas.
The state should be given a role in setting the minimum support price for forest produce. It should also give procurement support for such produce. It should also be liable to protect interests of the forest right holder if forestland is diverted for non-forest purposes. I am certainly not for state monopoly over forested areas, but the state needs to protect tribal interests in these times of the free market.
There are other fault-lines; among them is the bill's exclusive reliance on gram sabha s to secure tribal rights -- at the cost of other diverse institutions, which can fit the bill as well. When the standing committee of the Parliament meets to reconsider the bill, it should set these glitches right.
Archana Prasad is fellow, Nehru Memorial Museum and Library, Delhi
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