TRIBALS RIGHT TO LIVELIHOOD IN FOREST

TRIBALS RIGHT TO LIVELIHOOD IN FOREST

Written by Shaili A. Shah

 

ABSTRACT

It is the responsibility of the state to provide equal rights to the tribal’s because they are also the citizens of India. The government previously did not recognize the rights of the tribal community and so the tribal community had to face many hardships in order to earn their livelihood. This was the main issue because the government laid down certain restriction wherein they restricted to conduct any type of activity in the forest area. But later the government realized that in order to protect and preserve the forest area, the protection and preservation of the tribal community is must. So the government enacted various acts wherein they provided many rights to the tribal community.

The government also laid down many activities in order to provide livelihood to the tribal community.

This paper examines all the issues which were faced by the tribal community when the government did not recognize their rights, it also discusses about the various enactments done by the government to provide the right to livelihood to the tribal community. All the issues are discussed along with the various case laws.

Key Words: The Environment (Protection) Act, Supreme Court, High Court.

 

 

 

 

 

 

 

 

INTRTODUCTION

The word “Forest” means “Foris”. Basically Foris is a Latin word, whereby it means “outside the dwelling house”. In India, if we see, Forest plays a very important role for providing the basic necessities of life. In India, Forest plays a major role of being natural resource. In India, forest acts as a life-line providing factor for the people and it also plays a role wherein they protect and preserve the wild life of India[1]. In India, forest is recognised much beyond from providing flora and fauna but it also includes minerals, water sheds, etc[2].

Forest is not defined under any Indian statute or Indian law. But according to section 2 of the Act, the term ‘Forest’ is interpreted as follows:  forest includes ‘cattle’ under which all animals are included like elephant, camel, sheep, lambs, goats, horses, pigs, rams, etc. Forest also includes ‘Forest Officers’. Forest Officers are the one who are appointed by the state government or the officer appointed by the state government. Forest also includes ‘Forest Offences’. Under this, offences which are punishable under this act are included. Forest also includes ‘Forest Produce’ consists of timber, charcoal, etc it further includes trees and leaves, flowers and fruits, plants including grass, creepers, etc, skins, tusks, horns, etc of the wild animals. Forest also includes ‘River’ which consists of stream, canal, natural or artificial channels, etc. Forest also includes ‘Timber’[3].

The Allahabad High Court in the case of Yashwant Stone Works vs. State of UP[4] adopted the definition of forest as mentioned in the food and Agriculture Organisation. According to the definition given by them, forest means the land bearing trees of any size which is capable of producing wood or other forest products.

The Supreme Court in the case if T.N. Godavarman vs. Union of India[5] stated that the term forest must be understood and interpreted from its dictionary meaning only. According to the dictionary meaning, the term forest means and includes the area of 10 hectors having 200 tress per hector. Apart from this, the forest also includes reserved forest, protected forest, government forest and recognised forest.

In order to understand the meaning of the term ‘Scheduled Tribes’, it is defined under the Constitution of India. Accordingly, ‘Scheduled Tribes’ means “Such tribes or tribal communities under article 342 are deemed to be the scheduled tribes under the Constitution.”[6]

The President of India, in respect to any state or union territory, after the due consultation with the governor of that state or the union territory and by a public notification may declare a particular group or community as a ‘Tribal’ communities in that state or union territory.[7]

Relationship between Tribal’s and Forests:

In India, if we see, the tribal’s are considered to be the internal part of the forest. Meaning whereby is that when we talk about the forest, the tribal’s are included in it. The tribal’s had complete right over the forest and the forest products. But the government of India never recognised the rights of the tribal’s over the forest or the forest products. Due to this reason tribal’s started feeling insecure about their livelihood and so they started moving away from the forest.

The ‘Indian Forest Act, 1927’ also did not recognise the rights of the tribal’s over the forest or the forest products. They never thought that the entire livelihood of the tribal’s and their daily wages are purely depended upon the forest and forest products. But the government by virtue of this act passed denied the rights of the tribal’s and forest dwellers over the forest and forest products. Under this Act, the government declared all the Indian forests as the forests owned by the government only and the ‘Forest Settlement Officer’ was appointed by the government. The main role of this officer was to determine the limits of the tribal’s and other forest dwellers in the forest. In a simple term it means that it was the duty of the officer to decide the particular area after due inspection of the forest and declare that area as the area which can be used by the tribal’s or forest dwellers for their regular work. But the tribal’s or the forest dwellers cannot go beyond the area given to them[8].

In the case of Banwasi Seva Ashram vs. State of UP[9] the issue was regarding the conversion of the forest land into the thermal power station where the government by the notification converted that forest land into the thermal power station and rejected the rights of the tribal’s over that forest land and forest products.

In the other case of Ishwar Chandra Gupta vs. State of UP[10] the Allahabad High Court made a distinction and made it clear that the ‘Scheduled Tribes’ and ‘Other Traditional Forest Dwellers (Recognition of Forrest Rights) Act, 2006’ are two different and distinct acts which are made for the betterment and development of the tribal’s and forest dwellers apart from the ‘Forest Act, 1927’ and so all the three acts should not be read together. Thus in this case, the tribal’s were asked to leave the forest and their work which they were carrying out in the middle of the forest to earn their livelihood. Thus from both the cases we can see that the government previously did not recognise the rights of the tribal’s and forest dwellers.

Due to constant denial of the rights to the tribal’s, the tribal’s started moving away from the forest in search of their livelihood and due to this reason the forests were not being maintained and so there was damages done to the forest. The government then realised the importance of the tribal’s in the forest and so they decided to provide certain rights to the tribal’s in the forest to earn their livelihood and in this way the tribal’s will not leave the forest area. In furtherance of this decision, the government made a committee ‘Bhuria Committee’ which was headed by a tribal. The committee conducted a survey and recommended that there is a much need to amend the Constitution of India under which the rights are provided to the tribal’s.  The government accepted the recommendations given by this committee and in furtherance to implement these recommendations, the Constitution of India was amended by the 73rd amendment and in this amendment rights were given to the tribal’s under the head of Panchayats (Extension to the Scheduled Areas) Act, 1996 also called as PESA. Also the government ensured that within one year from passing of this act, all the sates in India where the tribal community exists must adopt this act in their state legislature and must implement it and provide all the rights to the tribal’s which are ensured in that act[11]. This act empowered the panchayats and gramsabha that they can have the control over all the activities to be undertaken in the villages coming into their area.

Later after passing of the PESA, the government realised that they have done injustice to the tribal’s and other forest dwellers by not taking into consideration their rights over the forest and forest products and because of the government the tribal community had to face many problems to earn their livelihood and due to this reason, the government enacted another act “Other Traditional Forest Dweller (Recognition of Forest Rights) Act 2006[12].

Issues faced by Tribal’s:

The Forest Rights is the most important factor and the crucial issue in the today’s life because most of the tribal’s are dependent on the forest to earn their daily wages. In order to earn their daily wages, they carry out various activities in the forest and by those activities they earn money. The main reason why the tribal community is still considered as a backward community and the reason they are facing many hardships in earning their livelihood is that mostly all the tribal people reside in the core area of forest and they do not come out of that area. They carry out all their activities in that area only. This is the main reason why the tribal community is still backward because due to globalisation and liberalisation, the entire world has developed and is achieving great heights in respect of inventing and using new and modern technologies, but since the tribal community do not come outside the core areas of forests they are not developed and this is the main reason why they face many problems in earning their daily wages. Also the forests are reducing day-by-day, and many activities are being conducted in order to preserve the forest, the tribal community faces other problems also.

Due to reduction of the forest area, the government had passed “The Indian Forest Act, 1920” whereby they stated that if any harm is done to the forest then it would be considered as an offence which would be punishable. There is a conflict here, because the tribal’s earn their livelihood from the forest and if they cut or damage the tree that is considered as an offence. This issue is the main issue which is going on for the discussion[13].

In the landmark judgment of Samatha vs. State of Andhra Pradesh and others[14]  the Supreme Court in this case stated that if the land where the mining activities were carried out is a forest land, it is not in the hands of the court to issue the order whereby they can stop the mining activities. The Supreme Court further stated and directed the forest department of the Andhra Pradesh state to carry out the investigation and find out that the land on which the mining activity is being conducted actually is the forest land or not and after the due investigation and in the support of proper evidence, if the forest department of the Andhra Pradesh state comes to the conclusion that the mining activity is carried out in the forest area, then the Andhra Pradesh state must take immediate measures to stop that mining activity.

Step Forward:

If the government makes any act or passes any legislation wherein they restrict any type of activity to be conducted, it is the responsibility of the government to ensure the livelihood to the tribal’s residing in that area. If the government encourages any industrial activity to be carried out in the forest area, where such activities are permitted, they should also ensure that the tribal community residing in that area gets the work in that industrial activity in order to earn their livelihood.

It is the duty and the responsibility of the government to make sure that every citizen of India gets and earns the wages which can provide them their basic necessities of life. Tribal community is also a part of the citizens of India and so they should also get all the benefits which the other citizens of India get.

 

CONCLUSION

The tribal community must be given the knowledge about their rights over the forest. After the passing of the various acts by the government, the tribal’s rights are secured and now they do not have to face any injustice or discrimination which previously the state did to them.

The government in order to protect and preserve the forests and natural resources have set up various activities and campaign wherein they make people aware about the importance of our natural resources and that we should protect our natural resources in order to maintain our environment. Many activities are also carried out by the state government to protect the remaining forest areas. Under the activities of protecting and preserving the forest area, the activity of promoting the rights to the tribal’s are also included because tribals are the interior part of forest area and the tribal’s and forests are closely related with each other.

The tribal’s main source of earning the livelihood is from the forest and forest products and so it is the main responsibility of the government to ensure that if they do not allow any damage to the forest area, they should ensure the livelihood to the tribal’s in that particular forest area where any kind of activity is restricted. This is the only way where the government can ensure livelihood to the tribal community.

[1] Chapter 11: Forest and Conservation Laws, Fourth Edition, Environmental Law by Prof. Satish C. Shastri.

[2] Chapter 11: Forest and Conservation Laws, Fourth Edition, Environmental Law by Prof Satish C. Shastri.

[3] The Indian Forest Act, 1927.

[4] AIR 1988 All 121.

[5] (2006) SCC 28: AIR 2006 SC 1774.

[6] Article 366(25) of the Constitution of India.

[7] Article 342 of the Constitution of India.

[8] Chapter 11: Forest and Conservation Laws, Fourth edition, Environmental Law by Prof. Satish C. Shastri.

[9] (1987) 3 SCC 204

[10] AIR 2011 All 88.

[11] http://dalitskerala.wordpress.com/2011/02/20/for-tribals-only-paper-pledges/.

[12] Heinonline 4 Law Env’t & Dev. J. 20 2008 The Indian Forest Rights Act, 2006 A Critical Appraisal.

[13] www.pacsindia.org/projects/land-rights/forest-rights.

[14] AIR 1997 SC 3297

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