Promises and lies

Supreme Court stays government's sham deal of promising land to tribals

 
By Neelam Singh
Last Updated: Saturday 04 July 2015

-- fixated on extending the 'feel good' sentiment to the country's 67.8 million tribals, the powers that be forgot where to draw the line. On February 5, the Union ministry of environment and forests (moef) released a circular stating that the land rights of tribals living in forests since 1993 or earlier would be regularised. Advertisements in the print and electronic media have been portraying the measure as a policy decision. The ministry also unveiled new guidelines, through another circular issued on February 3, to convert forest villages to revenue villages. The catch, however, is that the Supreme Court (sc) had stayed the legalisation of all encroachments on forestland in 2001 itself. And now, in response to a plea by amicus curiae Harish Salve, the apex court has further restrained the government from going ahead with the two schemes.

"How could the Centre publicise such a move when the matter was under the apex court's consideration? This amounts to contempt of court," says a lawyer from Chhattisgarh. The Union government is merely trying to "fool the people" ahead of the Lok Sabha elections, he adds. While the ruling Bharatiya Janata Party's spokesperson, Mukhtar Abbas Naqvi, refused to comment on the sc's latest order of February 23, he said that the ongoing ad campaign would be stopped forthwith.

Pradeep Prabhu of the Kashtakari Sangathan, a tribal welfare body of Maharashtra, says: "Environment was once more being sought to be sacrificed at the altar of electoral politics." A closer look at the two circulars bears this out.
Hollow sop The February 5 circular states that tribals who have been in continuous occupation of forestland from December 31, 1993, will be eligible for inclusion in state governments' forestland diversion proposals that are sent to the Centre for clearance. But the sc had fixed the year 1980 as the eligibility threshold under the Forest (Conservation) Act (fca). "This cut-off date was considered sacrosanct and non-negotiable. The government has tried to relax this too," laments B D Sharma, ex-commissioner for scheduled tribes and scheduled castes.

"The prime minister wanted to solve the problem once and for all. So the year was changed," explains V K Bahuguna, inspector general of forests, moef. He asserts that while the pre-1980 cases pertained to forestland encroachment, those included under the new provision would fall in the disputed claims category. According to Bahuguna, the two should not be confused. It may, however, be noted that the sc has not made any such distinction in the matter.

"The government has muddled up the entire issue for electoral gains," says environmental lawyer Ritwick Dutta. Rajesh R of research organisation Taru raises a pertinent point: " Bona fide cases would either be in continuous possession of land for much longer, or would have been wrongfully dispossessed of the tracts after they were deemed forestland."

The Union government admitted in the circular that not a single proposal to settle disputed claims or issue pattas (ownership deeds) and leases has been received since 1990 -- the year in which the Centre issued guidelines to process such claims. "This is despite the fact that the 1990 circular mentions specific examples of such disputes," observes Sharma. But Bahuguna stresses that the state governments are responsible for not expediting the matter.

The new circular ignores rural poor in non-tribal areas. "The attempt to create an artificial division between tribals and non-tribals may lead to gross injustice," says natural resource management policy analyst Madhu Sarin. Significantly, the 1990 circular included both categories (see table: Then and now). The recent decision also sets an unrealistic deadline of one year for settling tribal rights. An Orissa researcher is sceptical: "What the government couldn't achieve over the past 20-30 years, is supposed to be accomplished within a year."

Then and now
How MoEF has tinkered with its earlier decisions
1990 circular 2004 circular
Clauses for evaluating land disputes premised on Forest (Conservation) Act, 1980. Threshold date changed to December 31, 1993.
Claims allowed in respect of forestland covering tribal areas as well as non-tribal areas inhabited by rural poor. Centre to consider diversion proposals of only tribal dwellers who are in continuous possession of the land.
Claims to be vetted by committee comprising divisional forest officer, sub-divisional officer (revenue department) and tribal welfare department representative. Monitoring to be done by committee containing district magistrate, superintendent of police and divisional forest officer. Tribal welfare department bypassed.
Another criterion refers to the existence of an integrated tribal rehabilitation scheme, along with financial commitments, in the concerned state. "If it is implemented, most state governments will use the non-availability of funds as an excuse for doing nothing," says Sarin. The circular also stipulates continuous occupation of land by tribals as a pre-condition. This will, in effect, disqualify claims arising out of shifting cultivation -- a traditional use of forests by tribal communities.

"On the implementation front, no role is envisaged for representatives of tribal organisations," notes the Orissa researcher. "This needs to be viewed against the backdrop of continued efforts by the forest establishment to take over development functions from tribal welfare departments," cautions Rajesh. Sarin emphasises that all rehabilitation and development work should be implemented through gram sabhas , which must get the support of the relevant departments.

The government's recent decision would also make regularisation of tribal rights conditional on the state governments' progress in evicting all pre and post-1980 ineligible non-tribal encroachers as well as all encroachers since the end of 1993. "There should be no evictions till the issue is finally settled, because till then it will be difficult to distinguish between disputed claims and encroachments," says Sarin.

Feasibility doubts
The circular on the change in status of villages is also pockmarked with flaws. On this front, too, the government acknowledges that very few proposals have been received. "The forest ministry has granted 'in principle' approval for conversion of all the 302 forest villages in Chhattisgarh though other states are being asked to submit proposals," alleges Sarin. Interestingly, Union minister of state for environment and forests Ramesh Bais hails from Chhattisgarh.

As per the new provisions, land under habitation, existing buildings, grazing land, health and community centres, cremation grounds and roads would be considered for diversion. But only those lands under habitation on which pattas were issued prior to October 25, 1980, and where the patta holders or their successors have been in continuous possession, will be eligible.

Soumitra Ghosh of the National Forum of Forest People and Forest Workers says: "The original agreement holders have been long dead in many cases, and sometimes their direct descendants too. The holdings have also been fragmented. In addition to this, they have changed hands in many areas -- not for money, but for survival. Such lands as well as those occupied by patta holders exist together in the villages. So what does the moef propose to do? Honeycomb each village with forests?" he asks. Moreover, there are numerous cases where pattas have not been issued.

A facade?
When the environment minister made the announcement about the circulars, he also disclosed that 'in principle' clearance had been given to some development projects. The simultaneous mention of both has made comparisons inevitable. C R Bijoy of the All India Coordinating Forum of the Adivasi/ Indigenous Peoples strikes a pessimistic note: "The projects would get precedence over the implementation of the circulars. " Prabhu remarks: "It comes across as crumbs for the forest-dwelling communities and cake for the contractor lobby that promotes major construction projects which have not stood the test of merit."

A case in point is the Bodhghat hydroelectric project on Indravati river in Bastar district of Chhattisgarh. "The venture was rejected after sustained opposition by local tribals," says Ashish Kothari of Pune-based environmental action group Kalpavriksh. The project will submerge around 5700 hectares (ha) of sal forests along with about 40 villages. Bahuguna claims that clearance was given because the state has carried out compensatory afforestation on about 8000 ha. But, according to tribal activist Gautam Bandhopadhya, the same patch of forest is shown to get the go-ahead for different projects.

There are other apprehensions, too. "Clearly, there is a hidden agenda. The government will use the two circulars as an alibi to push for more powers in forest-related decisions. These powers will then be used to serve the interests of big economic lobbies," says Dutta. On February 9, the sc heard a government application asking for the removal of the word "forests" from an earlier interim order against change in land use. While the court rejected the plea, more such moves by the government cannot be ruled out. Meanwhile, the apex court has given the moef four weeks' time to respond to Salve's application. But who will inform the target audience that the 'feel good' message had no substance?

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