Indian Forest Law In The Context Of Tribal People.docx

“INDIAN FOREST LAW IN THE CONTEXT OF TRIBAL PEOPLE” - ABHISHEK SAAD

INTRODUCTION The dictionary meaning of forest is “A dense growth of trees and shrubs covering a large area”.i It is difficult to define the word “forest” as it differs from place to place and region to region based upon the objectives of management, vegetation, composition, altitude etc and there are many definitions of forest around worldwide. Forest may differ from one another as there are many types of forest around the globe which is determined by latitude, rainfall patterns, soil etc. In Forest area many tribal communities and other forest dwellers are living in and around the forest as it is their home. Tribal peoples are found all over the world and they are called by different name like tribal, primitive, indigenous etc. India has large number of tribal peoples across the country like Gonds, Bhills, and Oraons and so on. After the advent of British, the Forest Acts of 1865 and 1927 stopped the traditional rights of tribal’s and the forest dwellers which they were exercising in the forest and gave the control of forest to the government. After the Independence the National Forest Policy of 1952, the wildlife protection Act 1972, and the forest conservation act 1980 wiped out little problems of the forest communities but the village communities have been separated from their old traditional practices in forest which further branded this forest dwellers as “encroachers and illegal occupants”. Indian Forest Act 1927 and other State Legislation try to protect the forest by giving the forest into governments hand so that they can govern it according to themselves which they were misusing it. However, the tribal people living in forest were given some rights for years; the government had to restrain their rights to protect the forest from deterioration. Under Indian Forest Act the State Government was given authority to take the control over such rights by dividing forest into 3 parts i.e. reserved forest, protected forest and village forest. In reserved forest area there was no rights given to them. In protected area there were many rights to the user. In village area the government has the least control over it as this area is assigned for the village community.

THE SCHEDULED TRIBE AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006 This act recognizes and gives rights and occupation in forest land to scheduled tribe and traditional forest dwellers who have been residing in forest from generations and for the protection of their rights this act was made.ii

FOREST RIGHTS • They have the right to live and own a land in forest for their own survival as they are dependent on forest things they do agriculture there. This right is available as individual also. • Right to ownership, collect or access, use or dispose forest produces which has been collected traditionally within or from the boundary of the forest. • Right to use of water bodies products such as fish, grazing and traditional seasonal resources access to communities. • They have right to hold their traditional land in forest and to live their like habitat. • Right over disputed land situated in any state. • Rights over Pattas or leases or grants issued by any local authorities or any state government on forest land. • They have right to do settlement in forest village area, of their habitations even it is recorded or notified or not into revenue villages. • For sustaining themselves they have right to protect, manage or conserve their forest resources which is been used by them since the generation to generation. Right to protect, regenerate or conserve or manage any community forest resources which they have been traditionally protecting and conserving for sustainable. • They right to in situ rehabilitation means they can claim the other land if the scheduled tribes and the other traditional forest dwellers community have been forcefully thrown out of the forest without receiving their legal entitlement to rehabilitation prior to the 13th December, 2005. This act came into force because scheduled tribe and forest dwelling communities were facing historical injustice as they were not given rights into their land which is their home saying that they are destroying the forest as it was colonial forest law which was misused by British for their commercial purpose by taking the forest into government control. Therefore, it was necessary to make such law for scheduled tribe and traditional forest dwelling communities. LAW AND CONSTITUTION: EVICTION OF FOREST COMMUNITIES iii To evict forest dwellers and communities form forest which is their home on which they are dependent on the grounds that they are treat to forest, wild life, national and global environment it is difficult to imagine. The Indian Forest Act 1927 gives power to state to exercise the control over forest resources and the ownership. Forest were classed into three parts i.e. Reserved, Protected and Village Forest and

in reserved and protected forest was divided it take away the rights of the scheduled tribe and traditional forest dwelling communities there were few or no rights given to them.

The notion of “common property” was forced aside and was replaced by state control in the name of interest which was later on used for the commercial purpose of the state. The forest act says many things that state may prohibit forest communities doing anything in forest but there was no such limitation on state like state has the absolute control over the forest and the forest is state property. This was an illogical law as the forest dwelling communities were not exploiting the forest as it was their home and who destroy their home and in forest they were not able to use the recourses and they were sent to exile this act take away many rights from the forest dwelling communities. Post-Independence the constitution of free Indian was promulgated 1950; the continuity of same forest law was difficult because Article 372 of Indian Constitution says “that all the law in force in the territory of India immediately before the commencement of this constitution shall continue in force therein until altered or replaced or amended...” In 1950s and 1960s the state gave emphasis on industrial growth as development so in the name of development industries were allowed to access forest recourses on very low rate. After the UN Conference on Human Environment held Stockholm in June 1972 the parliament enacted the Air (Prevention and Control Pollution) Act in 1981 and in 1974 the Water (Prevention and Control of pollution) Act this acts made to reduce the problem of pollution urbanization was increasing due to growth of industries. Industries cause harm to environment and yet blame is given to the forest communities. Wild Life Protection Act was passed in 1972 and was amended in 1982 and 1991. 1991 act was made for the harmonizing the needs of tribal people and protection of wildlife. Two Articles were inserted by the 42nd constitution amendment act 1976 • Article 48A of directive principles of state policy it says that “State shall try to protect and make the environment better and to safeguard the forest and wildlife of country”. • Article 51A was also introduced in fundamental a duty which says in point (g) “It shall be duty of every citizen of India to safeguard and make environment better, forest, lakes, wildlife and the other living creature”. As there is always development in system according to time everything changes so does the judiciary was developing in the process the Article 21 was expanded (Right to dignity, health, clean environment, right to education, shelter) was expanded in it. In S.P Gupta v. Union of India (1981 Supp SCC 81) the term PIL was introduced to provide justice to illiterate people and to those people who are not aware about their rights they are ignorant about

Rights and will remain silent if nobody goes to them. Even for the environmental issues PIL were filled and court tried to solve the matter which came in the court.

Therefore, even there are constitution provisions made but still the forest dwellers are being evicted from the forest and the state is making benefit out of it in terms of revenue and for the development they are causing harm to ecological system. FOREST LEGISLATION AND ENVIORNMENT PROTECTION A state government has power to make laws to prohibit activities such as clearing of vegetation, pasturing cattle, or breaking the tress or clearing the land for doing cultivation in forest. However, it strange those provisions which are made to safeguard the environment are only enforceable against the private individual and when government activities affect the environment it not enforceable.iv FOREST CONSERVATION ACT 1980 Even the restriction are imposed by Forest Conservation Act 1980v, Even thought this act prohibits government for non forest use without taking prior approval for central governmentvi to which it can give permission or even it can refusevii to not to do such activities which are harmful full for the environment like making the roads, constructing the dams and so on in reserved forest area.viii This act has given environment value to take action against deforestation. Act has also reduced the power of state government however; the another loophole is that the government misuse the power and grants the approval to do their work in forest as they claim it is the non forest work and it is for the development. There are many instances where the volition of forest conservation act is done intentionally for preventing it the penal provision were incorporated in Act of 1988 the punishment for it was merely fifteen days and such punishment is inadequate.ix Therefore, the provisions which are there in Forest Conservation Act for the prohibition of acts is alone enough to protect the forest from deterioration some new strategies should be made and should be implemented in the law for the development of the forest. SUSTAINABLE DEVELOPMENT As the forest has abundant recourses like timber, stones, minerals etc so it cannot be ignored it is major source of revenue for government and for industrial development. Construction of hydroelectric and irrigation projects are carried out and in the name of development forest is Exploited ignoring the environmental value, vegetation is likely to disappear from the earth living human life in peril. Both factors should taken into consideration we cannot ignore the development and environment issue also if total ban is imposed on forest it will hamper the development. How to balance between these? To some extend to resolve the situation Scientific line (Conservation)x as development with conservation ensures sustainable developmentxi with environment protection. We can collect some amount of revenue without hampering the forest recourses by not destroying their regeneration potential. In case of clearing forest land for development activities their care should taken that it should not hamper the eco system and the environment that it will cause harm to human life. Basically development activities should harm the environment which is the life supporting system of human being.

RURAL LITIGATION AND ENTITLMENT KENDRA V. STATE OF U.Pxii The Supreme Court of India tried to solve the conflict between development and environment as RLEK filed a PIL in Supreme Court of destructive lime stone quarrying activities was going on in Doon Valley of Dehradun. Supreme Court after considering all the factors of ecological and environmental directed to appoint committees to investigate the problem if the quarrying is permitted in that area what will be the problems. After the committees submitted their reports court ordered the closure of certain mines. Court favored sustainable development. As from Doon Valley lime stone quarried was very essential to manufacture defense armaments it will affect the defense of the country if total ban was imposed on quarrying.xiii Court directed the government to file affidavit too see whether there is an alternative source is there or not to meet the defense need. In 1988 the court directed to close all the mines in that area except three and the owners were said to give and undertaking that it should not harm the ecological system and the environment they should make the balance when they are carrying the mining activities. Therefore, even though judiciary is trying to protect and safeguard the environment it is not enough to protect the forest as court look into only that matter which came before it then what about the cases which are not brought before the court. Still there is some loophole in protecting the forest. HINDRANCES IN TRIBAL DEVELOPMENT • “National Development”: In the name of national development the government has forgot the interest of tribal people the mobilization of tribal’s for government. Therefore, tribal interest and welfare is sacrificed in the name of national development. • Tribes have failed to safeguard and promote their language, culture and religion: The Article 29 of the Indian Constitution says that a cultural or linguistic minority has the right to conserve their language and culture. The state cannot compel anyone by law to follow any culture or language. Tough the state has not compelled them to follow any language or culture but the steps which are taken by states are in accordance with the provisions laid down in Indian Constitution. • Lack of institution arrangements: State is not giving importance to protect the language and culture because of it tribes are losing knowledge of their own culture and language and they are not self sufficient enough to promote their culture and language. Because there is lack of control over human, organizational and financial resources, the tribes and the forest dwellers have not been able to take effective measures. Some support is made available by state that’s the reason they are able to safeguard their culture to some extent. • Exclusion and Marginalization of Tribes: It is irony that even though we have laws for tribal people the process of marginalization of the tribe is not so strong as there are so many flaws in the law. We can say that the one of the root cause of such marginalization is law itself as it has many loopholes in it. Even we can see that majority of tribal people don’t know to read and write and they have no tradition to keeping record of such laws they are not aware about proceedings, language and practice of court it is

alien to them. As there is lack of awareness the other people have taken advantage of such laws and have been depriving tribal peoples from their land. • Tribal Interest vs. Public Interest: Laws have been also made for tribal people to protect them and their rights as laws are meant for general citizens and for human beings. Tribes are not even able to get citizenship right and more important is the human rights. On the same vein are the laws aimed at protecting tribes and those aimed at public interest such as land acquisition act, conservation act, forest act, wildlife sanctuary act, etc. Tribal people have sacrificed to the greater cause of the nation and public interest. HUMAN RIGHT AS ISSUExiv The human privileges the indigenous individuals and groups of people are unequivocally set out in the ILO Indigenous and Tribal Peoples Convention (No. 169), the Universal Declaration of Human Rights, the International Covenants, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, and other generally adhere to global human rights settlements and Declarations. They incorporate the accompanying indissoluble, associated and interrelated human rights. The human ideal to opportunity from any refinement, avoidance, confinement or inclination dependent on their indigenous status which has the reason or impact of hindering the pleasure in human rights and central opportunities that is: As it the human right that the every person is equals the law and they are also protected as It gives right to freedom that he buy a house, take education, avail the services of government, get employed in any company which he wants to and so on without any discrimination. The human right of indigenous peoples to exist. The other human beings.

The human right to freedom from genocide and ‘ethnic cleansing’ As the basic rights the tribal also have right to live and work which they were using. They have right posses their material things they can own their land and they can sell ittraditionally. They have right to make their own schools and other education institutions of their own language so that can give knowledge about their culture and language to their children the human right to develop their own culture and language. They have right to form an association. Tribal people have right to use and to protect the forest recourses. According to them they have right to take participation in making decisions in policies for their community at everywhere and even they can promote it. In acknowledgment of the way that indigenous and innate people groups are probably going to be oppressed in numerous zones, the primary general, central rule of The Tribal People's Convention No. 169 is non-segregation. Article 3 of the Convention expresses that indigenous people groups have the privilege to appreciate the full proportion of human rights and central opportunities without deterrent or separation. In Article 4, the Convention likewise ensures delight in the general privileges of citizenship without separation. Another guideline in the Convention concerns the utilization of every one of its

arrangements to male and female indigenous people without segregation (Article 3). Article 20 accommodates counteractive action of oppression indigenous laborers. In light of the helpless circumstance of indigenous and ancestral people groups, Article 4 of the Convention calls for uncommon measures to be received to defend the people, establishments, property, work, societies and condition of these people groups. What's more, the Convention stipulates that these unique measures ought not to conflict with the free wishes of indigenous people groups. In Article 6, the Convention gives a rule about how counsel with indigenous and ancestral people groups ought to be directed: Discussion with indigenous people groups ought to be attempted through proper systems, in compliance with common decency, and through the agent institutions of these people groups; The people groups included ought to have the chance to take an interest unreservedly at all levels in the plan, execution and assessment of measures and projects that influence them specifically; Another imperative segment of the idea of interview is that of representatively. In the event that a fitting meeting process isn't produced with the indigenous and innate establishments or associations that are genuinely illustrative of the people groups being referred to, at that point the subsequent discussions would not consent to the prerequisites of the Convention. The Convention additionally indicates singular conditions in which meeting with indigenous and inborn people groups is a commitment. Interview ought to be embraced in accordance with some basic honesty, with the goal of accomplishing understanding. The gatherings included should look to set up a discourse enabling them to discover proper arrangements in a climate of shared regard and full cooperation. Compelling counsel is interview in which those concerned have a chance to impact the choice taken. This implies genuine and auspicious interview. For instance, a straightforward data meeting does not establish genuine discussion, nor completes a gathering that is led in a dialect that the indigenous people groups present don't get it. CONCLUSION Initially the forest law in India was made by British people and their intension was to make revenue from forest. The law had taken away the rights of tribal people and other traditional dwelling communities they were not able to access forest recourses they were being evicted from the forest. Tribal people were not able to promote their language and culture as majority of people were not educated and they were not self sufficient enough to preserve their language and culture. As some people says that the tribal and the other traditional dwelling communities does harm to forest firstly it is home for them why will they destroy their own house and the tribal people know how to use the recourses properly what should be done when the fire is caught how to cut the tree what should be done when wild animals comes etc they are very much used to it then the forest officer residing over there. State shall not forget these things it should be kept into the mind that it is their home where they want to live.

State has given the power to make the laws according to the needs there was no central law for forest that was one of the reasons for not getting rights to tribal communities and the other people use the benefits of it state should make the central law which should be applicable all over the India and only some powers should be given to the state. Law should maintain the balance between the tribal communities and their basic right like land access to basic resources of the forest and state itself should be able use the recourse to generate the revenue from the forest. State should take care of the environment as it is base for human life deforestation must taken care about strict laws should be make for harming the environment and even state itself should not do pollution it should take care about it. State shall not sacrifice the environment pollution or water pollution for the sake of earning some money. Strict laws should be made in violation the environment. Therefore, tribal people have paid and are still paying the biggest price for development in India. They are subsidizing the cost of development through sacrifice of their land, traditions and cultures so that the urban elites can enjoy comfortable lifestyle. The government needs to enliven the various constitutional and legislative provisions so that this community can live to its fullest.

i D.VENKATESWARLU, DEFINITION OF FORESTS - A REVIEW (Available at: http://www.terisas.ac.in/mct/pdf/assignment/VENKATESWARLU.pdf, Last accessed on 30th October, 2018 at 11:45 PM IST) ii Objects and reasons, THE SCHEDULED TRIBE AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006 iii Usha Ramanathan, Law and the Constitution: Eviction of Forest, International Environmental Law Research Centre, http://www.ielrc.org/content/f0401.htm (last visited 30-10-2018 9:00 pm) ivIndian Forest Act 1927. 8.35. See corresponding provisions in Kerala Forest Act 1961, $.33: Karnataka Forest Act L903. 5.39; Tamil Nadu Forest Act 1664. $.29: Raajastnan Forest Act 1953. $.35: Orissa Forest Act L972. 5.39 And Nagaland Forest Act 196a, $.36 v Act No.09 of l9sU. see for text, Appendix I viIbid. viiIbid. viii Ibid. ix Forest (conservation) Act S.3— A as amended by Forest (Conservation) Amendment Act 1988 (Act 69 of 1988). x T.N.Khoshoo Environmental concern and strategies. (1988). p.629 xi Journal of energy and natural resources law, vol-9 (1991), 1 at p-3 xii A.I.R. 1985 S.C. 65 xiii A.I.R. 1987 S.C.242 xiv Convention concerning Indigenous and Tribal Peoples in Independent Countries (Entry into force: 05 Sep 1991)