Recommendations to Improve the Bill

 

1.     Scope of the Bill to be Extended to include “Forest Dwellers”

· The decision taken by the Prime Minister on 19th January 2005 was for MoTA to draft a Comprehensive Bill for STs & Forest Dwellers Rights

·  In many areas Tribal Communities for a variety of reasons are not recognized as STs but as SCs

·  In the Forest Areas there are communities which have been living there for several generations and whose conditions are similar if not identical to those of the STs.  Some of these communities were brought in by the Forest Department itself for clearing/felling operations and now reside in forest villages.

·  Non recognition of the Rights of other Forest Dwellers have been living in the forests for several generations will expose them to eviction of large groups who have no other avenue for survival.

·  The 1990 guidelines do not distinguish between STs & Forest Dwellers

·  The exclusion of other Forest communities from the ambit of the Bill will be seen as a historical mistake of the present government and will also create social division in the forest dwelling communities.

·  The Comprehensive Bill for STs  must therefore be extended to other Forest Dwellers have been living in the forests for several generations and whose living conditions are  close to abject poverty.

 

2.      Definitions which need to be amended or included

·  “Forest Land” definition be expanded to include Conservation Reserves and Community Reserves, the two new protected area categories in the WLPA.

·  “Community Forest Resource” with respect to 3(k)

·  “Un-sustainable Use” of Forest or Forest Resource with respect to 8(ii)

·  “Wildlife” with respect to 8(iii)

·  “Bio-diversity” with respect to 8(iii)

 

3.      Extent of Land to be vested.

·  In light of the fact that leases and pattas previously granted by state governments and disputed claims may exceed 2.5 hectares,

· Guidelines FP 2 & FP 3 of 18th September 1990 do not put any ceiling on extent of land to be settled/vested because of varying land/weather conditions, but

· State governments in the Orders of Regularization have put a limit only in the case of occupation/ encroachments

· A maximum extent has been provided by various state governments, varying from 2 Hectares to 4 Hectares

· Most Orders of Regularization of State Governments have included other lands in the ownership/ possession of the claimant.

·  Hence the extent of land to be vested in the case of occupation/ encroachments only should be specified.

 

Hence Sec 4 (5) and 4(5)(i) be suitably amended to:

Where the forest rights recognised and vested under sub-section (1) are in respect of vesting of land in occupation under Sec 3(a)

(i)   such vesting of land would be to the extent of land in occupation in no case would exceed an area of two and one-half hectares per nuclear family of a forest dwelling Scheduled Tribe;

(ii)  the total land holding of the concerned beneficiary of the vesting of rights u/s 3(a) including other lands in his possession/title shall not exceed 2.5 ha.

(iii) The limit of 2.5 ha. of land be not applicable to leases and pattas that have been previously granted by State Governments.

 

 

4.      Multiple Appellate Authorities be Avoided

· While for a person aggrieved by the decision of the Gram Sabha the Appeal is to the Sub Divisional/District Committee u/s 6(5) & 6(8)

· An appeal is provided for State Government/Local Authority (aggrieved presumably by the decision of the Gram Sabha or Sub Divisional/District Committee) in Sec 4(7) to a Competent Authority appointed by Central Government, without any clarifications as to the nature of appeal etc.

· This is highly problematic as there are two different appellate authorities, with two different jurisdictions. This issue must be resolved to avoid confusion.

 

5.       Penalty for Destruction of Wild Life

· While Sec 8(iv) lists destruction of wildlife, the term wildlife is not clarified.

· While Sec 8 also provides a penalty upto Rs. 1000/= for destruction of wildlife, the same is in variance with the Wildlife Act.

· If the GS is the authority to try and punish for destruction of wildlife, what is the role of the Courts etc.

· How is the GS going to enforce its judgement & orders needs to be clarified.

 

6.      No Clarity about Sustainability/Unsustainable.

· While Sec 8(iii) lists unsustainable use, the term unsustainable use is not clarified.

· While Sec 8 also provides a penalty upto Rs. 1000/= for unsustainable use. If the GS is the authority to try and punish for unsustainable use, what is the role of the Courts, needs to be clarified.

· How is the GS going to enforce its judgement & orders needs to be clarified.

 

7.      Jurisdiction of Gram Sabha with respect to Sec 8

· While Sec 8 empowers the GS to decide/punish on offences, the area of its jurisdiction is not specified.

·  The jurisdiction of the Gram Sabha should extend to Reserve/Protected Forest areas within the boundaries of the village

·  The jurisdiction of the Gram Sabha should extend to Reserve/Protected Forest areas adjacent to the village boundaries in cases where Reserve/Protected Forest areas are not included within the boundaries of the village

 

8.    5 (d) Imposes a duty on the Forest Rights Holder to ensure that "any activity that is harmful to the forest, wildlife,... should be intimated to the gram sabha". Clarity is necessary to ensure that conflict does not emerge

·  What right would a gram sabha have to stop a Forest Rights Holder who is doing something which is rightfully allowed under this provision?

·  What is the avenue for the complainant if the village or the GS doesn't take on this responsibility of regulating use?

 

9.    Sec. 5. (e) Imposes a duty on the Forest Rights Holder to ensure that "appropriate measures are taken in the gram sabha to regulate access to community forest resources and stop any activity that adversely affects the wildlife....."

·  How would a gram sabha have to stop a non Forest Rights Holders not respecting the GS decisions

·  What is the avenue for the complainant Forest Right Holder if the village or the GS doesn't take on this responsibility of regulating use?

·  Who, under the Act, is to ensure that this responsibility is performed by the GS.

 

10.   Sec. 5. (e) Imposes a duty on the GS to regulate access to community forest resource

·  How would a gram sabha regulate access?

·  What is the avenue for the GS if a non Forest Right Holder does not accept the regulations of the GS?

·  What is the avenue if the GS doesn't take on this responsibility of regulating use?

·  Who, under the Act, is to ensure that this responsibility is performed by the GS?

 

11  The relationship with other related Acts is not absolutely clear.

·  Many of offences that may be committed will also fall under the jurisdiction of the Forest Conservation Act and the Wildlife Protection Act.

·  How do the penalties under this Act relate to the ones under FCA and WLPA?

·  Does this come under the purview of Sec. 11 which says the operation of other laws is not barred by this act, if they do not contravene the provisions of this Act?

·  There is no clarity when penal provisions (or provisions regarding jurisdiction of the Forest Dept) of the IFA, FCA, and WLPA “contravene the provisions of this Act”? 

 

12.  The gram sabha has been given the responsibility to decide on the penalty for an offence under Sec 8 of  the Act.

a. Hence all the offences such as unsustainable use, illegal felling of trees, destruction of wildlife will have to be dealt by the gram sabha. What about the Authorities appointed under other laws like IFA, WLPA, etc.

b. What will be the relationship of the GS with these authorities

c. How do these provision operate when there is conflict with the Wild Life (Protection) Act or other relevant Acts which does not  give any such rights to the gram sabha?

d. How will this provision be implemented where the gram sabha may not be very active, or where the species of wildlife involved have very high trade value,

e. How will this provision be implemented when the penalties under the other Acts are much higher?

f.  How will this provision be implemented when the provisions under the other Acts are much more stringent?

g. There need to be explicit provisions for checks and balances.

 

13.  If the gram sabha fails to deal with instances of wildlife/biodiversity destruction under Sec 8

·  When and how do the other Acts become operational?

·  Is it expected that the powers of the sub-divisional level committee and the district level committee, in which the Forest Dept is involved, would be adequate to provide for checks and balances?

·  This needs to be made more explicit, while clarifying the precise relationship between this Act and other Acts.

 

14.   In Protected Areas where settlement of rights are being done, without taking into account the people who have been denied rights because of lack of clarity,

·  Will the process be opened up again under this Act?

·  How will the Act apply to the process of settlement of rights in intended and finally notified PAs?

 

15.  Sec 3(j) is about right to intellectual and traditional knowledge; potentially this is a powerful provision, but it needs to be elaborated in the Rules. What does such a right mean in operational terms? How is it to be enforced, and by whom? There is considerable debate and work on community intellectual rights, which needs to be built on to enable this provision to become effective.

 

16. The cut-off date for the recognition and vesting of rights as mentioned in 4(1)  be  extended from 25.10.1980 to at least 31.12.1993, since :

 

·   The 1980 cut-off date will violate the human rights of many persons who are cultivating land for the past 20-25 years for survival /livelihood needs.  The cultivation on these lands has been done with the tacit support of the forest department.

·   The Ministry of Environment and Forests itself, considering the ground realities,  in its Affidavit filed before the Supreme Court in I.A. 1126/2004 in W.P. 202/1995 has requested that the cut off date be extended to 31.12.1993.

 

17.  Regarding the Rights with respect to minor forest produce

To make the present bill in consonance with the provisions of the Panchayats Extension to the Scheduled Areas Act, Section 3 c) be changed to :

“Right of ownership of minor forest produce.”

 

18.  The Rights granted under the Bill as they do not require any deforestation shall not be subject to any of the orders passed by the Supreme Court with respect to payment of NPV and compensatory afforestation.

 

 

Courtesy:  Brain Lobo, Soshit Jan Andolan. (by email - July 07, 2005)