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Forest Bill 2005 and Tribal Areas

The debate on the 2005 Forest Bill calls for an examination of the changes in governance in tribal areas seen in recent years. The question is whether the state is actually retreating from its responsibilities or is reworking its governance strategy in sensitive areas. In the case of Jharkhand, for instance, the bill seeks an "easy" conversion of forest into revenue villages even as it places the onus of conservation of the forest dwellers and scheduled tribes.

Insight

Forest Bill 2005 and Tribal Areas

Case of Jharkhand

The debate on the 2005 Forest Bill calls for an examination of the changes in governance in tribal areas seen in recent years. The question is whether the state is actually retreating from its responsibilities or is reworking its governance strategy in sensitive areas. In the case of Jharkhand, for instance, the bill seeks an “easy” conversion of forest into revenue villages even as it places the onus of conservation of the forest dwellers and

scheduled tribes.

RITAMBHARA HEBBAR

T
he Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 has already been discussed extensively and, like other legislations of the government, has been criticised for its quick-fix approach to larger structural issues such as environmental conservation and tribal rights. By itself the bill does not seem as harmful as it did when I began examining the implications of the bill in the context of the economic policy adopted in Jharkhand. Even as the Forest Bill is being discussed all over the country, number of multinational and private companies are being allowed to get a foothold in Jharkhand to exploit the rich natural reserves in the area. Although the bill recognises tribes and the natural environment as victims of discriminatory practices of the state, which has led to the marginalisation of both the forest dwellers and environmental concerns, it is not clear whether the bill will be able to stall the wholesale and indiscriminate loot of natural and mineral resources in Jharkhand. In fact, the fear is that the bill might, wittingly or unwittingly, create conditions for greater commercial and private investments in the area thereby undermining the rights of locals on their habitat. The bill seems out of sync with the mood set by the Jharkhand government vis-à-vis its economic policy of encouraging private investors to set up shop in the area. The paper seeks to address this discernible and clear contradiction between the intention of the bill and the ground realities in Jharkhand (as in other tribal areas in the country) as well as its implications on the tribal struggle for self-rule.

The paper first of all presents an overview of the economic and political mood in Jharkhand post-statehood. An overview would highlight not only the contradiction between the Jharkhand state’s ambitious economic policy of making it one of the most industrialised states in the country and the continued struggle of the locals to stall processes of displacement and marginalisation due to development and industrial activities of the state and private companies but also how the contradiction has become far more severe after the creation of Jharkhand. Secondly, the paper also seeks to analyse the specific features of the bill in order to identify the probable loopholes that could work against the interests of Forest Dwellers and Scheduled Tribes (FDSTs). The attempt is also to examine the implications of the same on FDSTs given the general economic reality of tribal areas, as the state is increasingly opening up tribal areas for commercial exploitation. I argue that the bill, as a step towards deregulating state control over forest resources, distances the state from its responsibility of forest conservation thereby not only encumbering tribal rights on land and forests, but also restores control of the state over the decentralised mechanisms and institutions instated to manage land and forests. The bill then opens up avenues for the state to reclaim forests as the official intermediary between competing commercial interests and the locals.

Dissonance and Despair

In the last few years Jharkhand state is being watched closely by experts and laypersons alike. Created after a long drawn out struggle against the incessant exploitation of its natural resources and the simultaneous marginalisation of its various tribal groups, great hopes were pinned on Jharkhand in terms of evolving an ecologically viable course to progress and development which would also restore the rights of the local tribes on their land and forests. The initial euphoria has worn off and has been replaced by concern over the subsequent developments. The industrial policy of the newly formed state announced its intention of making Jharkhand the number one industrial state in the country by 2004 and in Asia by 2010. The effort was to make Jharkhand the “most preferred destination for investment” by providing the necessary infrastructure facilities such as water, electricity, transport, modern technology and land as well as flexible policies to attract foreign and private investors in the area.

The government even proposed to create “land banks” at the district level, with a view to make available land to entrepreneurs to overcome the delay in the land acquisition process. Wastelands, degraded forestland were to be taken up on longterm leases by evoking Section 2 of the Forest Conservation Act 1980 and Chotanagpur Tenancy Act 1908 for making these lands available to investors. Section 2 of the act requires the state governments to seek prior approval of the central government for using forestland for non-forest activity.1 This has been a critical issue for long as this section was taken up for discussion by the Supreme Court of India in 1996 when the union government questioned the right of the

4952 Demand for Rehabilitation Policy Economic and Political Weekly December 2, 2006

state governments of north-east India of disregarding this provision.2The Jharkhand government too has had to face similar objections from the central government in a number of instances.

The Jharkhand government has been pushing for a relaxation of the rule that requires prior approval of the central government for giving mining leases in forest areas.3 Jharkhand has signed over 40 memoranda of understanding with big and small investors. The big investors include Mittal Steel, Tata Steel, Jindal Steel, Essar Steel, and Power Company. The interest of the big investors in Jharkhand has got not only the people of Jharkhand worried but also the small investors, who fear being thrown out of gear once the big investors take over the business in Jharkhand. Rallies were organised by various organisations in Jharkhand in November 2005 to oppose the state government’s rush in opening up the state to private and multinational companies. The organisations included the Bhoomi Raksha Gramin Ekta Manch, Moolvasi Adhikar Morcha, Adivasi Adhikar Morcha and the Jharkhand Mines Area Coordination Committee.4 The organisations protested against displacement of tribes and deforestation that would take place due to the proposed projects.

Demand for Rehabilitation Policy

While the local tribal organisations have decided to resist the projects, even at the cost of their lives, political parties such as the Jharkhand Mukti Morcha (JMM) demanded a rehabilitation policy for the displaced. The party also demanded the implementation of the Panchayati Raj (Extension to Scheduled Areas) Act 1996, also known as PESA for short, and the Gram Panchayat Adhiniyam in Jharkhand. Although critical of the antipeople development agenda of the state and their commitment to the ‘jal, jungle aur zamin’ (water, forest and land) issues in Jharkhand, the chief convenor of Adivasi Adhikar Morcha (AAM) was open to discussing possible solutions to the impoverishment that would be caused due to the projects. He suggested that adivasi families could be compensated by giving shares in the investor companies while the latter continue to retain their rights on land.

Clearly, there is an air of general distrust regarding the situation evident in the combined opposition of various organisations to the proposed projects to be launched in the state in the near future. Yet, the opposition is inarticulate over the content and course of resistance. Although there are references to the ecological consequences of the proposed projects, that too, in the context of the displacement of the locals, the focus is primarily on the survival of tribes. The concerns are related to livelihood. Thus, while some of the organisations want to resist the projects at all costs, the JMM is demanding a proper rehabilitation policy for the displaced and the implementation of PESA. The experience of other states where PESA has been implemented has not been positive in that the power has not been vested in the gram sabha or the village assembly but in the gram panchayats or the intermediate panchayats, which are managed and run by a select few, mostly the powerful in the area. With regard to rehabilitation, the question that arises is whether a proper recompense is possible at all and whether it would eventually benefit the locals in terms of restoring their culture and way of life. The immediacy of the crisis facing the locals in terms of the high scale at which local tribes are being displaced from their habitats not just in Jharkhand but also in states like Orissa has left the leaders disoriented and frustrated. Moreover, large parts of Jharkhand and primarily the forest areas are under the control of Naxalites. Out of the 18 districts of Jharkhand, 12 are controlled by the Maoist Communist Centre (MCC) and the People’s War Group (PWG).5 Also, according to the National Front for Tribal Self-Rule, about 800 villages have declared self-rule in the Ghatshila block of East Singhbhum as a rebellion against state led exploitation of their land and forests.6

This then foregrounds the debate on the Forest Bill, ostensibly a move to grant land rights to FDSTs, while the forest dwellers of Jharkhand are preparing themselves to be displaced from their homes and habitats. How does one make sense of these contradictory situations? How are we to receive the bill? What is the rationale behind the bill and what is the significance of its introduction at this point in time? The analysis of the bill then is goaded by some of the questions that seek continuities and discontinuities between the larger economic compulsions of the state to open up the natural reserves of the state for profit and private investment, and the social and political commitment sought to be accomplished by granting land rights to FDSTs through the bill.

A Right or Wrong Move?

The controversial Forest Bill has had scholars and activists crying hoarse over tribal rights, wildlife concerns and environmental protection. The bill seeks to “restore” land rights to forest dwellers and scheduled tribes or the FDST and, in so doing, “undo”, as it proposes, the historical wrong committed against FDSTs during colonial rule and thereafter. The bill in its “Statement of Objects and Reasons” admits to the government’s disregard of the close association tribes have had with the natural environment, a colonial legacy perpetuated in independent India. It also concedes that if there is any hope for the survival of forests, then the rich tribal tradition based on the ethic of conservation have to be restored. The granting of land rights to FDSTs is supposedly a step towards that end. Inasmuch as the statement seems to be in a confessional mode, doubts have been raised about its real intention. There have been a number of reservations that have been raised as to its efficacy and intent.

Critics have trashed the bill as a “votecatching, land-grabbing garage sale of Indian forests”, “an alternative to bringing development to the forest, which will only bring in the land mafia (and) the Naxalites further disfranchising the ‘tribal’ population and ultimately destroying India’s remaining forests”. Some others have termed it as a “dangerous”, short-sighted “bait” to appease a hitherto “neglected constituency”. The opposition to the bill however is splintered. Although the critics are unanimous in denouncing the bill, the reasons for denigration differ. The critics are divided on why the bill should not be passed. For some critics the bill was handing over a “national” resource to a certain section of the marginalised and in so doing being unfair to the people of India who also have a right over forests. It is argued that there is no reason why sections of the marginalised other than FDSTs should be excluded from the legislation. Concerns have been raised over the conservation of wildlife and forests. The bill has rekindled the debate on whether conservation of wildlife and biodiversity can be ensured by turning the forests into the hands of tribes. Doubts have been raised on whether forest dwellers will be able to resist the local power dynamics and the bureaucratic

Economic and Political Weekly December 2, 2006 trappings that has for so long dominated their lives. Inversely, it has also been contended that giving land rights to FDSTs will “terminate the commitment to social equality essential to the tribal way of life”. The bill is considered as “yet another mechanism for detribalising the tribe” and of “converting forest dwellers to the status of low castes”. It would lead to the breakdown of the clan based social organisation of tribes and introduce the nuclear family system among them and the inequities of the kind known in caste society. Of course, the critics are quick to add that they are not trying to suggest that tribal cultures should be treated as frozen, and converted into a museum.7

Apprehension

Clearly, there are a number of apprehensions about the efficacy of the legislation, but underlying these doubts are presumptions about tribes as a social category, and conservation as a method and an agenda which do not seem to be uniform across the board. Tribes are seen as hapless victims of state pursuits; while at the same time there is a process of “othering” of tribes whereby tribes are conceptually juxtaposed to caste society. There is enough anthropological literature which has questioned this stark demarcation more with the intention of highlighting the ethnocentrism of such an exercise, which only presents tribes as non-caste groups. Such representations of tribes have also played down the participation of and the lead taken by tribal movements in creating and sustaining the environmental movement in the country and the world over. These representations have restricted the issue of conservation to tribes and not extended it to examine the already existing debate in tribal areas over state management of forests, forest conservation and tribal rights on their habitats. The objection to the bill has viewed tribes only as hapless victims, as pawns in the hands of the state and thereby raised concerns over their capacity to overcome the political implications of the same and stand up to the difficult task of conservation of the natural environment.

And what of conservation? What does conservation entail and would granting land rights alone ensure conservation while the state is unabashedly and indiscriminately allowing the corporate world to exploit and polish off the natural resources in tribal areas? The objections to the bill has resuscitated the debate of tribes versus forest conservation, a debate that has stayed with us since colonial times like an official hand-me-down, which has thereby managed to restrict the debate to whether tribes can or cannot live up to the responsibility of conserving the environment. The focus here, unlike the concern expressed by the local organisations in Jharkhand, is ecological conservation and not livelihood. This has diverted the issue from the main agenda of the state, of continuing with its anti-ecological economic policies in the name of modern development in tribal areas that have impoverished lakhs of tribal people. The state has been the biggest landlord in tribal areas and despite this the forests in tribal areas are in a dismal condition; a condition that goes unnoticed in the context of the bill even by the critics who express concern over granting land rights to FDSTs. Given this scenario, why is the state interested in giving up its control in the forest and is it really handing over the forests to the FDSTs as feared by the conservationists? And how are we to explain the duality evident in the practices of the state, wherein it has indiscriminately opened up its natural reserves for commercial exploitation and at the same time announced its intentions to pass the bill on granting land rights to FDSTs so that both the tribes and the forests have a chance for survival. The bill explicitly states that it seeks to reinforce and utilise the rich conservation ethos of tribes to revive and sustain forests.

Main Features

It would be useful to briefly examine the main features of the bill to reveal the discrepancy in the bill not only in terms of its promise of empowering the FDSTs by granting land rights to them, but also in terms of its accommodation of environmental concerns. The bill deals with the rights and responsibilities of FDSTs as well as spells out the administrative machinery through which the same would be routed. As mentioned earlier, the bill vests land rights, 2.5 hectares per FDST nuclear family, as the land would be registered jointly in the name of the male member and his spouse. This right however is heritable but not alienable and transferable. The land so procured cannot be used for commercial purposes and only for what the bill describes as “livelihood” purposes. Other rights include the right to access minor forest produce, biodiversity, community rights to intellectual property and traditional knowledge related to forest biodiversity and cultural diversity; rights of conversion of ‘pattas’ or leases issued by any local authority or any state government on forest lands to titles and, to consolidate this right, the right to convert forest villages into revenue villages.

Duties

The duties include protecting the forests, the biodiversity and the wildlife in the area. The unwritten clause of course being that the FDSTs would be held responsible for the health and maintenance of the forests. The FDSTs have not been granted any authority in terms of penalising or pressing charges against violations. Their rights are subject to the approval of the gram sabha. The gram sabha as the lowest tier of the Panchayat Raj Act (Extension to Scheduled Areas) Act 1996 is the official body that has been vested with the authority to “initiate the extent of forest rights that may be given to the forest dwelling tribes”. The gram sabha in turn would be answerable to the subdivisional committee. A district-level committee is also provisioned by the bill to hear appeals of and scrutinise the record of forest rights prepared by the subdivisional committee in cases of disputes and administrative confusion. A state level monitoring committee would also be constituted for periodic examination of the reports and records of the district level committee. The committees would consist of officials from the department of revenue, forests, tribal welfare and reputed members of civil society. Cases of derecognition of forest rights granted through this legislation would be heard and decided upon in the gram sabha and the higher level associate bodies.

By incorporating the gram sabha within the purview of the bill, the limitations of the latter as a body of empowerment, demonstrated in many parts of tribal India, would extend to the FDSTs covered under the bill. While PESA vests certain rights in the decentralised system, this power cannot overrule state imperatives. Contrarily, the system can be pressed into approving state programmes and plans. This is of significance especially in the light of the fact that the Forest Bill rests the right to decide and annul the land rights of the beneficiaries by the recognised decentralised body under PESA. Interestingly, the rights of FDSTs are routed through the gram sabha while the duties

Economic and Political Weekly December 2, 2006

are not similarly constrained, making the FDSTs singularly responsible for forest conservation. Moreover, in giving the right of converting forest villages to revenue villages, the bill is circuitously deregulating forests and pushing for availability of land for revenue purposes, easily procurable for supposed development activities by state and private interests. These features built into the bill forces us to move beyond the conventional forest conservation versus tribal rights debate on the bill and take cognisance of the larger purposes the bill seem to serve.

Conclusions

The bill provides the context for reflecting on the changes in governance in tribal areas over the last 10 to 15 years. The supposed devolution of power brought about the Panchayat Raj (Extension to Scheduled Areas) Act 1996 and now the devolution of power and decision-making sought through the bill has occurred simultaneously with the opening of the economy to private and global economic players. Scholars have looked upon this development variously; some have expressed their reservation while some have viewed it as natural and also desirable. But the question that requires reflection is whether the state is actually retreating from or is it now reworking its “strategy” for governing sensitive areas, where governance has entailed issues of self-determination and empowerment. By strategy, one refers to the “non-subjective yet intentional logic that can be discerned when one analyses a regime of governmental practices” [Dean 1999: 72]. The analysis of the bill reveals the new techniques of administration developed by the state to impact and influence issues concerning its interests. While the market limits the role of the state in economic and political matters, the state also creates markets where they did not exist. It has taken on an entrepreneurial role. The bill demonstrates the same wherein the state seeks to move away from its conventional welfare role towards its citizens to providing a set of services through its agencies enabling governance through decentralised institutions apparently managed by the people. It conveniently exempts its members and officers from prosecution or any other legal proceedings for activities, which is done in good faith or causes damage in the course of its services rendered under the provision of the proposed Act. There is then a “corporatisation” and “privatisation” of services that were previously public and the “contracting out” of services, which have emerged as technical modes of dissociating the state from its earlier proactive role in creating the social and the moral base for reform and development, thereby folding up from its earlier objectives, while still retaining its regulatory and punitive role within the system by securing control over the local and ostensibly autonomous mechanisms and institutions instituted for governance.

This rereading of state practices also helps to overcome the discrepancy mentioned above regarding the dual policy of opening up the natural reserves to commercial interests thereby rendering the local inhabitants and their habitats vulnerable, while simultaneously engineering new mechanisms and institutions to protect the latter from exploitation and marginalisation. How else can the state rescue itself from its earlier promise of social and economic restitution of tribes in the liberal economy?

EPW

Email: rhebbar@tiss.edu

Notes

[Revised version of the paper presented at a national seminar ‘Tribals, Forests, and Livelihood Concerns’, Department of Sociology, Mumbai University, March 9-10, 2006.]

1 Source: The Industrial Policy of Jharkhand 2001 available on the official website of the Jharkhand government.

2 It is ironical that the Jharkhand government seeks to evoke Section 2 of the Forest Conservation Act 1980 for the very reasons for which it has been challenged in the Supreme Court in 1996. The misuse of Section 2 (i) of the Forest Conservation Act in the north-east by the state governments was questioned in a case T N Godavarman vs Union of India 1996, filed in the Supreme Court of India, wherein the latter raised an objection to the state governments practice of acquiring forestland for commercial activities by dereserving them for industries and other commercial activities. The petitioner asked for a clarification of the term forest as used in the Act. The court stated thus – the term “forest” must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of the section (i) of the Forest Conservation Act. The term “forestland”, occurring in Section 2, will not only include ‘forest’ as understood in the dictionary sense, but also any area recorded as forest in the government record irrespective of the ownership. ...In view of the meaning of the word “forest” in the Act, it is obvious that prior approval of the central government is required for any non-forest activity within the area of any “forest”. In accordance with Section 2 of the Act, all ongoing activity within any forest in any state throughout the country, without the prior approval of the central government, must cease forthwith [in Diwan and Rosencranz 2002: 295].

3 A news piece carried by the Hindustan Times dated December 31, 2005 titled ‘HC Snubs Jharkhand for “Proxy War” Against Centre’ states how the Jharkhand government was being warned by the Delhi High Court against involving third party petitioners as ‘proxies’ to court for securing and extending mining leases in Jharkhand after the petitioners request for mining leases sent by the Jharkhand state were rejected. The petitioners had challenged the central government’s decision on the grounds that the natural justice of the petitioners was being violated. Also refer to news titled ‘Ore Nod Raises Brows’, The Telegraph, January 10, 2006.

4 Source: ‘Jharkhand Tribal Groups up in Arms against Projects’, November 16, 2005, posted Online by Jharkhand Mines Area Coordination Committee www.firstpeoplesfirst.org

5 The forest areas of Gumla, Lohardaga, Palamu, Giridih, Santhal Pargana, Garwa, Chatra, Koderma, Hazaribagh, Dhanbad, and Latehar are reportedly under the control of Naxalites. Information gathered from Down to Earth report titled ‘Forest War’ published in the December 31, 2001 edition.

6 See Down to Earth, August 31, 2002 for a full report on the same. As per the report titled ‘The Second Independence’, hundreds of villages in Andhra Pradesh, Chhattisgarh, Rajasthan, Uttaranchal, Karnataka and Jharkhand have declared self-rule after a bitter experience with the local administration over issues of governance, forest regulations and procurement of basic amenities.

7 Singh, Malvika, ‘May I Dwell in the Forest’? in Indian Express, May 7, 2005; Dang, Himraj, ‘Cutting Down Forests for Votes’ in Indian Express, May 6, 2005; Mazoomdar, Jay, ‘Trapped in a Colonial Fairy Tale’ in Indian Express, May 4, 2005; Mazoomdar, Jay, ‘Who’s Bothered about Tribal Welfare’? in Indian Express, May 5, 2005; Thapar, Valmik, ‘The Tribal Bill: Moving Beyond Tigers’, posted Online, October 21, 2005.

References

Dean, Mitchell (1999): Governmentality: Power and Rule in Modern Society, Sage Publications, London.

Diwan, Shyam and Armin Rosencranz (2002): Environmental Law and Policy in India, OUP, Delhi.

Giblin, Robert (2001): Global Political Economy: Understanding the International Economic Order, Princeton University Press, Princeton and Oxford.

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