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Upholding Tribal Autonomy To Propagate India's Forest Wealth

Shyama Kuriakose & Vineet Gupta
7 May 2020 6:06 AM GMT
Upholding Tribal Autonomy To Propagate Indias Forest Wealth
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Conservation of forests in states with high tribal density

India's immense forest wealth is spread across different parts of its territory. Amongst them, regions with a high concentration of forest dependent tribal communities or Scheduled Tribes have been successful in maintaining this natural wealth. A report by Center for Policy Research, New Delhi, states that:

"38% of the Forest Cover in India lies in the Scheduled Areas districts (123 districts of 640)…. almost 30% of the Fifth Schedule Area districts and 76% of the Sixth Schedule area districts are under forest cover…. concentration of forest cover in the Scheduled Areas is just over two and half times than that compared to the rest of the country."

These communities' symbiotic relationship with nature can be attributed as one of the reasons for the above-described state of affairs. It is thus interesting that such areas with a high tribal population have also been provided special statuses under the Constitution.

For instance, states of Assam, Meghalaya, Tripura and Mizoram who enjoy a special status under 6th schedule are home to several tribal groups as well as a rich biodiversity. Similarly, other North Eastern states of Arunachal Pradesh, Manipur, Nagaland and Sikkim which take benefits of Articles 371A to H of the Constitution in giving primacy to their own traditional forms of governance and customs over other modern systems, have a similar advantage. Further, special status is granted to tribal communities in 5th scheduled states such as Andhra Pradesh, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Himachal Pradesh, Gujarat, Rajasthan and Telangana which have some of the most diverse biodiversity and natural terrains in India. Article 35A of the Constitution prevented anyone who was not a permanent resident from purchasing lands in the Union Territories of Jammu & Kashmir and Ladakh and these Union Territories are ecologically and culturally unique as well.

While it is true that the purpose of above-mentioned special statuses to states was not conservation of the environment, however these provisions have enabled to keep these ecological sensitive regions pristine to some degree. The special status provisions under the Constitution of India, like governor making rules for restricted transfer of land, regional and district council making laws for transfer of land and determination of permanent resident of the state by state legislature under Article 35A have focused on common ownership or restrictive transfer of land and have long kept the forest, agriculture and hilly lands away from rampant commercialization.

Further, practices such as total protection of certain species or specific habitats such as sacred groves, lakes, etc., traditional, seasonal and periodic restrictions on hunting, fishing, cutting of trees etc., kitchen gardens, among others, provide great impetus to conservation efforts in these states. This has in turn successfully promoted community forestry among the local tribal population. "At least two thirds of schedule 6 area forests are officially under the legal authority of the Autonomous District Councils, and are physically controlled and managed by people".

Existing legal framework to protect tribal autonomy

Although the land rights of the schedule tribal areas flow from the Constitution, their effective implementation can only be guaranteed by proper legislation. State governments play a vital role in transfer of land (state list) and land acquisition (concurrent list) under the Indian Constitution. For safeguarding the land rights of the tribal population, all states which have designated 5th schedule and 6th schedule areas and also few of them which do not have such designated schedule areas have enacted laws to restrict transfer of tribal land to non-tribal and private individuals. Some of these state laws include Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, Maharashtra Restoration of Land to the Scheduled Tribes Act, 1975, Himachal Pradesh Transfer of Land (Regulation) Act, 1968, Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of transfer of certain lands) Act, 1978, Orissa Scheduled Area Transfer of Immoveable Property (by Scheduled Tribes) Regulation, 1956, among others.

Such restrictions to 5th schedule area have also been dealt in the case of Samatha vs. State of Andhra Pradesh whereby court upheld a legislation which prevented transfer of tribal land for mining activity to private industries and non-tribal population. It also held that mining activity in schedule area can only be carried by State Corporation in compliance with environmental laws along with other conditions for the upliftment of tribal populations. The clauses under 5th schedule itself provides complete restriction (or certain modification) of central or state laws being applied to schedule 5 areas (power exercised by the governor).

There are certain central laws as well which protect tribal land rights irrespective of 5th or 6th scheduled status. Traditional rights of forest dwelling tribal populations over community forest lands is provided under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Even the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 provides for acquisition of tribal land only as last resort after proper rehabilitation of tribal population and also proper consent from Gram Sabhas or autonomous district councils as applicable. It is to be noted however that state amendments (land acquisition is in concurrent list) to this law, has led to a dilution of all those safeguards.

Despite a constitutional guarantee and numerous enactments for the protection of customary rights and practices, there are constant attempts at encroachment into these areas by the center, state government as well as private entities with the intention of industrialization, exploitation of natural resources and destruction of these ecological fragile areas. Successive governments continue to use their power of 'Eminent Domain' to acquire property for public purposes even if such property is falling within Schedule 5th and 6th areas. This has led to a plethora of land acquisition, mining and forest laws overriding the tribal rights laws and their special status in the name of 'public purpose and development'. With the public consultation process set to be weakened within the Draft Environment Impact Assessment Notification of 2020, autonomy of local communities in ecologically sensitive regions will further diminish.

Impact of dilutions

The India State of Forest Report 2017, notes a decrease in forest cover in five northeastern states — Mizoram (531sq km), Nagaland (459sq km) Arunachal Pradesh (190sq km) Tripura (164 sq km) and Meghalaya (112 sq km). This decrease is a direct result of the disregard for customary law and traditions and overriding effect of land acquisition, forest and mining acts. For instance, amendment and dilution to the existing acts of land ownership (like in case of Chhota Nagpur and Santhal Paragana in Jharkhand and also Chhattisgarh) or allowing quarrying and mining in core wildlife habitats as well as forest areas or setting up enterprises to exploit natural resources without paying adequate royalty to landowners (ONGC in Nagaland), etc., have taken a toll on the biodiversity of these regions. After the scrapping of special status of J&K questions have been raised on environmental viability of industrialization and mining activity in J&K especially in Ladakh since the land here is not suitable for excessive industrialization. Post the repeal of Article 35A in 2019, large swathes of forests were cleared for developmental projects in clear violation of community rights.

Hurdles like weak clauses and non-implementation of tribal specific laws mentioned above; misuse of powers given to panchayats and local communities in the case of development projects to gain influence; and lack of awareness among tribal population to implement their land rights, have led to their exploitation. The latter can be seen from the Meghalaya example of privatization of community lands to promote illegal rat hole mining.

Why tribal autonomy is paramount for environmental protection?

It has been pointed out by the Bhuria committee report that lands and forests are vital source for tribal life and this support system is being hampered by rampant urbanization and industrialization. While special status was initially meant to preserve tribal and local identity, it has in turn led to a significant driving force in the preservation of forests in these tribal dominated areas. The autonomy to tribal areas, provided by the drafters of our Constitution, has successfully given a voice, identity and a medium to enforce local community/tribal rights and also knowingly or unknowingly bring about preservation of environmentally sensitive areas. These communities may be deemed to be remote or backward but it is their traditional wisdom and customary practices which have allowed this forest wealth to be maintained. Having stated this, it is ironic that so many years after independence, successive governments continue to deride such traditional wisdom and opt for developmental activities in these forests that threaten the lives and livelihoods of these communities.

Views Are Personal Only
(Shyama Kuriakose is Senior Project Fellow at Vidhi Center for Legal Policy. Vineet Gupta is a 5th year BA LLB (Hons) student at Rajiv Gandhi National University of Law, specialising in constitutional law)


[1] Supra note 8

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