Statement Of Objects And Reasons Text And Note

 

 

STATEMENT OF OBJECTS AND REASONS

    Forest dwelling tribal people and forests are inseparable. One cannot survive without the other. The conservation of ecological resources by forest dwelling tribal communities have been referred to in ancient manuscripts and scriptures. The colonial rule somehow ignored this reality for greater economic gains and probably for good reasons prevalent at that time'. After independence, in our enthusiasm to protect natural resources, we continued with colonial legislation and adopted more internationally accepted notions of conservation rather than learning from the country's rich traditions where conservation is embedded in the ethos of tribal life. The reservation processes for creating wilderness and forest areas for production forestry somehow ignored the bona fide interests of the tribal community from legislative framework in (lie regions where tribal communities primarily inhabit. The simplicity of tribals and their general ignorance of modern regulatory frameworks precluded them from asserting their genuine claims to resources in areas where they belong and depended upon. The modem conservation approaches also advocate exclusion rather than integration. It is only recently that forest management regime have in their policy processes realized that integration of tribal communities who depend primarily on the forest resource cannot but be integrated in their designed management processes. It underlines that forests have the best chance to survive if communities participate in its conservation and regeneration measures. Insecurity of tenure and fear of eviction from these hinds where they have lived and thrived for generations are perhaps the biggest reasons why tribal communities feel emotionally as well as physically alienated from forests and forest lands. This historical injustice now needs correction before it is too late to save our forests from becoming abode of undesirable elements.

    2. Ins, therefore, proposal to enact a law laying down a procedure for recognition and vesting of forest rights in forest dwelling Tribes. The recognition of forest rights enjoyed by the forest dwelling Scheduled Tubes on all kinds of forest lands for generations and which includes both bona fide needs of forest land for sustenance and usufructs from forest based resources are (lie fundamental basis on which the proposed legislation stands.

    3. The Bill, inter cilia, provides for the following matters, namely: -

    4. The Bill seeks to achieve the above objects.

TEXT Of THE BILL

THE SCHEDULED TRIBES (RECOGNITION OF FORESTRIGHTS) BILL, 2005

A
BILL

to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled     Tribes who have been residing in such forests for generations but whose rights could not be recorded: to provide for a framework for recording the forest rights so vested and the nature of evidence required for such

recognition and vesting in respect of forest land.

    WHEREAS the recognized rights of the forest dwelling Scheduled Tribes include the responsibilities and authority for sustainable use, conservation of bio-diversity 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 WHEREAS the forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of Slate forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes who are integral to the very survival and sustainability of the forest ecosystems;

    AND WHEREAS it has become necessary to address the lone standing insecurity of tenurial and access rights of forest dwelling Scheduled tribes.

    BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:

        1.(1) This Act may be called the Scheduled Tribes (Recognition of Forest Rights) Act, 2005.

            (2) It extends to the whole of India except the Slate of Jammu and Kashmir.

    It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

    2.

In this Act, unless the context otherwise requires, -

CHAPTER II

FOREST RIGHTS

    3.

For the purposes of this Act, the following rights shall be the forest rights of forest dwelling Scheduled Tribes, namely:

CHAPTER III

RIGHTS OF FOREST DWELLING SCHEDULED TRIBES

    4.

(1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central and Government hereby recognizes and vests forest rights in the forest dwelling Scheduled Tribes, where they are scheduled, in respect of forest land and Scheduled their habitat including right to collect, utilize or transfer minor forest tribes produce in such manner as may be prescribed.

         (2) The recognition and vetting of forest rights under this Act to forest dwelling Scheduled Tribes in relation to any State or Union territory in respect of forest land and their habitat shall be subject to the condition that such Tribes or tribal communities had occupied forest land before the 25th day of October, 1980 or such other date as the Central Government may, by notification in the Official Gazette, specify.

         (3) A right conferred by sub-section (l) shall he heritable but not alienable or transferable

         (4) Save as otherwise provided, no member of 3 forest dwelling Scheduled Tribe shall be evicted or  removed forest land under his occupation till the recognition and verification procedure is completed in such manner as may be prescribed.

         (5) Where the forest rights recognized and vested under sub-section (l) are in respect of land,-

         (6) The forest rights recognized and vested under sub-section (l) in the forest dwelling Scheduled Tribe shall

         (7) In case any forest right recognized and vested under sub-section (l) is disputed by any Slate Government or local authority, the Competent Authority appointed by the Central Government shall consider the records prepared at the time of declaring the area as a Scheduled Area, and while notifying any tribe to be or deemed to be a Scheduled Tribe under article 342 of 'the Constitution, along with evidence and then pass an appropriate order in the matter:

    Provided that no order denying or refusing to gram any forest right shall be passed unless the aggrieved member or members of the community are given an opportunity of being heard.

    5. The holder of any forest right under this Act shall ensure that, -

CHAPTER IV

AUTHORITIES AND PROCEDURE FOR VESTING OF FOREST RIGHTS

    6. (1) The Gram Sabha shall be the authority to initiate any action for determining the extent of forest rights that may be given to the forest dwelling Scheduled Tribes within the local limits of its jurisdiction under this Act.

        (2) Every action under sub-section (l) shall be initialed in such manner and subject to such procedure as may be prescribed.

        (3) A Sub-Divisional Level Committee shall examine the decision taken by the Gram Sabha.

         (4) The composition and functions of the Sub-Divisional Level Committee and the procedure to be followed by it in the discharge of its functions shall be such as may be prescribed.

         (5) Any person aggrieved by the decision of the Gram Sabha may prefer an appeal to the Sub-Divisional Level Committee in such manner as may be prescribed and the Sub-Divisional Committee shall consider and dispose of such appeal:
    Provided that no such appeal shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to represent his case.

         (6) Every appeal under sub-section (5) shall be preferred within sixty days from the date of decision of the Gram Sabha.

        (7) There shall be constituted a District Level Committee with such composition and functions as may be prescribed to consider the record of forest rights prepared by the Sub-Divisional Level Committee for its final approval.

        (8) Any person aggrieved by the decision of the Sub-Divisional Committee may prefer an appeal to the Distinct Level Committee in such manner as may be prescribed and the District Level Committee shall consider and dispose of such appeal: Provided that no such appeal shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to represent his case.

        (9) In discharging the functions under this Act, the District Level Committee shall follow such procedure as may be prescribed.

        (10) Every appeal under sub-section (8) shall be preferred within sixty days from the date of decision of the Sub-Divisional Level Committee.

        (11) The decision of the District Level Committee shall be final and binding and the Gram Sabha shall maintain the records accordingly.

    7.

(1) The Stale Government shall constitute a State Level Monitoring Committee with such composition and functions as may be prescribed.

        (2) The State Level Monitoring Committee shall examine the record out recognized and vested rights of forest dwelling Scheduled Tribes submitted by the District Level Committee and conduct periodic inquiry into the process of recognition and vesting through random selection of sites.

    (3) The State Level Monitoring Committee shall submit to the nodal agency such periodic returns and reports as may be called for by that agency alone with the recommendations of the Committee for appropriate action.

CHAPTER V

OFFENCE AND PENALTIES

    8.

If any holder of any forest right conferred by or under this Act or any other person –

    1. contravenes or abets the contravention any of the provisions of this Act, or
    2. commits a breach of any of the conditions of the forest right vested or recognized under ibis Act: or
    3. engages in unsustainable use of forest or forest produce; or
    4. destroys wildlife, forests or any other aspect of bio-diversity; or
    5. fells trees for any commercial purpose,

    He shall be guilty of an offence against this Act and be punished with a fine which may extend to one thousand rupees and in case of the offence is committed more than once, the forest right of the person who has committed the offence shall be derecognised for such period as the District Level Committee, on the recommendation of the Gram Sabha may decide.

    9.

Where any authority or officers or member of such authority contravenes any provisions of this Act or any rule made thereunder shall be deemed to be guilty of an offence under this Act and shall be liable to be proceeded against and punished with imprisonment which may extend to thirty days or with tine which may extend 10 five thousand rupees, or with both:

    Provided that nothing contained in this sub-section shall render any member of the authority or head of the department or any person referred to in this section liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence

    10.

No court shall take cognizance of any offence under section 9 of this Act unless any forest dwelling Scheduled Tribe in case of dispute relating to a resolution of a Gram Sabha or the Gram Sabha through a resolution against any higher authority gives a notice of not less than sixty days to the State Monitoring Committee and the State Monitoring Committee has not proceeded against such authority.

CHAPTER VI

Miscellaneous

    11.

Every member of the authorities referred to in Chapter IV and every other officer exercising any of the powers conferred by tins Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.

    12. (1) No suit, prosecution or other legal proceeding shall lie against any officer or other employee of the Central Government or the Stale Government for anything which is in good faith done or intended to be done under this Act.

        (2) No suit or other legal proceeding shall lie against the Central Government or (lie Stale Government or any of its officers or other employees for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.

        (3) No suit or other legal proceeding shall lie against the Authority as referred to in Chapter IV including its Chairperson, members, member secretary, officers and other employees for anything which is in good faith done or intended to be done under this Act.

    13. The Ministry of the Central Government dealing with Tribal Affairs or any officer or authority authorized by the Central Government in this behalf shall be the nodal agency for the implementation of the provisions of this Act.

    14. In the performance of duties and exercise of powers by or under this Act, every authority referred to in Chapter IV shall be subject to such general or special directions, as the Central Government may, from time to time, give in writing.

    15. Save as otherwise provided in tins Act, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other any other law for the time being in force.

    16. (1)  The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act;

        (2) In particular, and without prejudice to the generality of the powers, such rules may provide for all or any of the following matters, namely: -

       

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

NOTE ON THE "SCHEDULED TRIBES (RECOGNITION OF FOREST RIGHTS) BILL, 2005"

    Background

   

The rights of forest dwelling Scheduled Tribes who are inhabiting the forests for generations and are in occupation of forestland have not been adequately recognized so far resulting in historical injustice to these forest dwelling Scheduled Tribes who are integral to the very survival and sustainability of the forest ecosystem.

    1. Scheduled Tribes are living in Forests for generations and are integral to very survival         and sustainability of Forests:

    It is well known that the forest dwelling scheduled tribes are residing on their ancestral lands and their habitat for generations and from times immemorial and there exists a spatial relationship between the forest dwelling scheduled tribes and the biological resources in India. They are integral to the very survival and sustainability of the forest ecosystems, including wildlife. In fact, the tribal people are inseparable with the ecosystem, including wildlife, and cannot survive in isolation.

    2.  Non recognition of their rights during the process of consolidation of Forests:

    The traditional rights of FDSTs on forest lands were, however, not adequately recognized and recorded in the consolidation of state forests during the colonial period as well as in Independent India though Indian Forest Act 1927 had provided for the determination of rights. However, the reservation processes for creating forest areas coupled with historical factors prevalent at that time in respect of excluded and partially excluded areas and emphasis on production forestry somehow left the bona fide interests of the tribal community unrecognized and recorded. The problems of these communities were further compounded after passing of the Forest (Conservation) Act, 1980 when even the development activities in their habitations were termed as non-forestry activities. They still do not even have a homestead and as such address of their own. They are people without identities.

    3. Permanent threat of eviction from their own land:

    The non-recognition of the rights of the FDSTs over land who have been living in forests since time immemorial has been attracting public attention since pre-independent India. Due to non-recognition of forest rights of FDSTs, who have been very deeply rooted in the forest areas for ages, have come to be erroneously looked upon as encroachers of forest lands and the threat of eviction consistently looms large in their psyche. Insecurity of tenure and fear of eviction from these lands where they have lived and thrived for generations are perhaps the biggest reasons why tribal communities feel emotionally as well as physically alienated from forests and forest lands. All these factors have resulted in historical injustice to them.

    4.  Non - Conferment of ownership rights over MFP in terms of Provisions of PESA, 1996

    Inadequate implementation of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, by non-transfer of control/ ownership over the natural resources, including the Minor Forest Products to the local communities and by non extension of PESA Act to the entire scheduled areas, including forest areas, have further compounded their miseries. Although the Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) gives the rights of ownership of MFP to the respective local communities, the collection and trade of most of the high value MFP is largely monopolized by the Corporations of the Forest Department of the States and poor FDSTs are just employed by the contractors only as wage earners.

    5. Even fruits of Developments Schemes Denied:

    The condition of the FDSTs traditionally living in their habitat in symbiotic relationship with the ecosystem is further becoming far more precarious and vulnerable due to displacement threats in view of ever increasing demand for conservation of forests on one hand, and tardy implementation Of developmental activities for welfare of FDSTs on the other, which is mainly due to non-availability of clear cut title of land in their favour. The poor FDSTs living in forestlands for ages cannot take benefits even under various schemes of the Government such as "Indira Awas Yojana".

    6. Existing Legislative/Policy Frame of the Ministry of Environment & Forests:

    The Government has been taking a consistent view on this central theme of integrating FDSTs living in and around forests in to every aspect of managing forests. Ail policy statements, including the Forest Policy, 1988, circulars, guidelines, Government Orders issued by the Ministry of Environment and Forests have been espousing the cause of tribal communities and emphasizing the need for putting these communities at the center of any conservation measures. Relevant excerpts of some of the important policies of MOEF are as under:

stresses that forests are a first charge to the tribal communities and their domestic and livelihood needs are paramount and superior to any other commercial needs.

while recognizing the symbiotic relationship between tribal people and forests, also safeguards the customary rights and interests of the tribal people and forest dwellers on forestlands.

for the association of tribal people closely in the protection regeneration and development of forest with a view to provide gainful employment to the people living in and around the forest, with special attention to:

    1. replacement of contractors by tribal cooperatives,
    2. Protection, regeneration and optimum collection of MFP along with institutional arrangements for the marketing of such produce,
    3. Development of forest villages on par with revenue villages, family oriented schemes for improving the status of the tribal beneficiaries, and
    4. Undertaking integrated area development programmes to meet the needs of the tribal economy, but the fact remains that most of the high value minor Forest produce are monopolized by the State Forest Corporations and the tribals are just employed as daily wagers.

    The latest guidelines of MOEF issued on 5.2.2004 extended the cut off date to December 1993 and the client group of the MOEF guidelines was much larger and encompassed all categories of forest dwellers. The Honorable Supreme Court has however stayed the operation of these guidelines.

"give legal recognition to the traditional rights of forest dwelling tribes. This would remedy a serious historical injustice, secure their livelihoods, reduce possibilities of conflict with the Forest Departments, and provide long-term incentives to the tribal to conserve the forests".

    7. Formulation of The Scheduled Tribes (Recognition of Forest) Rights

Bill, 2005

    8. The main features of the proposed Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 are as follows:

    Objective:

   

The objective of the Bill is to undo the historical injustice by recognizing and vesting the forest rights and occupation of forest land to forest dwelling Scheduled Tribes who have been residing there for generations and who are integral to the very survival and sustainability of the forest eco-system, including wildlife, but whose rights could not be recorded.

    8.1. Rights of Forest Dwelling Tribes: The Bill in Section 4 seeks to recognize and vest Forest Rights to forest dwelling Scheduled Tribes where they are scheduled. Such forest rights, as defined in Section 3, are in respect of recognition of occupation of FDST on forestland and their habitat, where they have been living for generations and include:

    Further provides that no forest dwelling Scheduled Tribes shall be evicted or removed from forestland under their occupation till the recognition and verification procedure is complete.

    8.2. Duties of Forest Right holders have been defined in Section 5 of Chapter 111of the proposed Bill which include responsibility of not carrying out any activity that adversely affects the wild life, forests and bio-diversity.

    8.3. The Authorities, including their functions, have been defined in Chapter IV of the proposed Bill, which include Gram Sabhas. Sub-Divisional Level Committees, District Level Committees having forest, Tribal welfare and revenue officials as members.

    8.4. Offences under the Act

   

Detailed provisions for penalty for contravention of the provision of the Act and also the offences by Government authorities under this Act have been provided in Chapter V of the proposed Bill. A simple imprisonment up to 30 days with or without a fine of Rs.5000/- has been considered appropriate as the proposed Bill also, in addition, provides for de-recognition of the forest rights in case the offence is committed more than once. The penalties provided under other legislation including Indian Forest Act, 1927, the Forest Conservation Act, 1980 are in any case not barred by this Act.

    8.5. Nodal Agency:

The Ministry of Tribal Affairs or any other officer or authority authorized by the Central Government in this behalf shall be the Nodal Agency and shall be responsible for implementation of the Act.

    9. Checks and Balances:

    The proposed Bill provides for far more checks and balances than the existing Legislative / policy frame of the Ministry of Environment and Forests. The specific provisions include –

has been provided in the body of the Bill. It is only a one-time exercise to recognize the age-old occupations as per the ground situation intended to put an end to so-called issue of encroachment forever. There is no question of abetment of fresh encroachment.
the vesting of rights will be done on "AS IS WHERE IS" basis and definitely no clearing of forests or felling of trees would be permitted.

    2.

The proposed Bill –

    3. The proposed Bill is thus only the logical culmination of the process commenced by the Ministry of Environment and Forests for settlement of the bonafide claims of forest dwelling communities in the 1990s.

The Bill only provides for a legal framework and sanctity to the ongoing administrative efforts of Ministry of Environment & Forests and uses the very language of the laws and policies of Ministry of Environment & Forests. The proposed Bill is equally conservationist and more conservatives in approach compared to the 1990 and posts guidelines and officially recognizes October 1980 as the cut off date for the settlement of claims.

    4. The proposed Bill has been drafted so as to strike a balance and to achieve the twin objective of environmental conservation and justice to the STs by being in tune with and providing for far more stringent checks and balances than the existing Legislative / Policy frame.

    5.

It may be mentioned that after enactment of the Bill, the Ministry of Tribal Affairs proposes to notify the Scheduled Tribes (Recognition of Forest Rights) Rules for carrying out the provisions of the proposed Act. Section 6 of the proposed Bill provides that the Gram Sabha shall be the competent authority to initiate the process of the recognition of and vesting of forest rights in the forest dwelling Scheduled Tribes and a Sub-Divisional Level Committee shall examine the decision of the Gram Sabha. A District Level Committee will consider the record of forest rights prepared by the Sub-Divisional Level Committee for its final approval. Further, Section 7 of the proposed Bill also provides for constitution of a State Level Monitoring Committee for examining the record of recognition and vested rights of forest dwelling Scheduled Tribes submitted by the District Level Committee and for conducting periodic inquiry into the process of recognition and vesting through random selection of sites. The Rules to be notified after enactment of the Bill will lay down the procedure for recognition of and verification of forest rights, the procedure to be followed by the authorities at all levels under the Act, the authorities under the Act, including their composition, and the nature of evidence to be taken into account for recognition and vesting of forest rights. It is proposed to provide in the Rules that the authorities would consist of officials from the department of Revenue. Forests, Tribal Welfare and reputed members of civil society so as to provide a well defined procedure of involving Gram Sabha i.e. the democratic institution, officials of concerned departments and reputed members of the civil society. 

    [The Ministry of Tribal Affairs, Government of India in its circular no. 17014/4/2005-S&M (Pt.) dated 03.06.2005 invited views/ suggestions on the draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 from the members of public, the social activists, academicians, anthropologists, the experts working for the cause of environmental protection and welfare of tribal people and other stake holders]

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