CONSTITUTIONALITY OF TRIBAL ACTS IN INDIA
INTRODUCTION
If we go back to the progress of human society, we can see that people had depended for the survival and subsistence of the forest from the very beginning. Gradually the man learned various other ways to fulfill his needs and moved towards modernization and globalization. However in the world and in India too, there are still a large number of people relying on forests for their survival and their livelihoods.
To address the plight of various forest dwellers this was due to non recognization of their pre- existing rights landmark legislation was passed. This legislation was Scheduled Tribes and Other Traditional Forest Dwellers Act, 2006. This Act has been passed in respect of the right to forest rights and to occupy forest land in scheduled forest dwellings and other traditional foresters, who have long lived in the woods but have never been recorded or recognized for their rights. The Act was drafted to satisfy the need for a comprehensive law to protect the rights of the planned tribes and other forest residents. The National Forest Policy made policies to ensure the customary rights and interests of forest citizens, recognizing the symbiotic connection between forest and forest dwellers.
This Act provides a right and power to conserve forest resources of the community, while Sec. 5 of the Act includes general measures for wildlife conservation, forest protection, and so on. This act acknowledges the historical discrimination committed against forest residents and it also gives them the right to maintain the forest in accordance with their custom. We may therefore assume that the Act gives only a small number of individuals the right to choose forest-related activities. By giving communities the power to conserve forests, the act enhanced conservation. These rights are addition to the rights to the rights given to forest department.
RIGHTS OF INDIGENOUS
As a common word, the term "indigenous" has long dominated. Often preferences can be such as tribes, Aboriginals, ethnic groups, adivasi, janajati etc. In some areas. Indians possess special languages, knowledge and values, and have invaluable knowledge of sustainable forest resources management. They relate and use their traditional land in particular. Their ancestral land gives their collective survival a profound value. They want to recognize their life and ways and their rights to property, land and natural resources. In T.N. Godavaranam Thirumulpad v. Union of India, the Supreme Court of India in its order gave a bigger perspective to the term forest. According to the FR Act, 2006, the people who dwell in the forests are an integral part of the forest. So, the definition of forest includes trees and also the traditional and other forest dwellers.
The Indian Constitution defines the word 'scheduled tribes' none of that really. Instead Article 366(25), those groups which are scheduled in accordance with Article 342 of the Constitution identifies scheduled tribes. In accordance with Article 342 the scheduled tribes are the communities of the tribes and the tribal groups that were proclaimed publicly by the President of India. India has various laws including the fifth schedule of the constitution for mainland India and the sixth schedule for certain northeastern areas of India which recognize the rights of indigenous peoples to land and self-governance. The various issues or violation of rights of indigenous can be understood from the following discussion:
VIOLATION OF SECTION 21 OF THE INDIAN CONSTITUTION: each human being has the right to life and liberty to decide on any means of life including sheltering, food, clothing and education. But for different reasons the displacement and expulsion of tribal peoples from their land of tradition deprives them of these privileges and forces them to live a wretched life. Though the act has provisions for giving compensation to the displaced families but this compensation is not adequate or proportional to their plight.
VIOLATION OF HUMAN RIGHTS UNDER INTERNATIONAL LAW: Land acquired from the landowners without their consent or manipulation of their consent which is a violation to their right to dignity.
INCREASE IN TERRORISM AND INSURGENCY: The number of tribal people who become Maoist or enter terrorism increases because of their induced displacement and because there is no proper rehabilitation plan.
THE RIGHT TO CULTURE: the tribal and traditional forest dwellers have a symbolic relation with the forest land and resources which gave origin to their cultural identity. The impact of urbanization and industrialization has affected their cultural identity by affecting forests.
RIGHT TO REHABILITATE
Section 4(2) of the Act provides for the relocation of persons from areas if it is necessary for the protection of wildlife. The first step in this process is to prove that relocation is scientifically necessary, and that no other process can be used, or is practicable, and that this must be achieved arbitrarily through public consultations. The second and main stage is for the local people to agree to the settlement.
What is extremely relevant in this section is that it must not only offer compensation, but also ensure a stable subsistence.
Forest rights of the scheduled tribes and other traditional forest inhabitants should be conditional on their occupation of the land before 25th October 1980. The rights of foresters of this forest would not be exceeding 2.5 acres per nuclear family but should only be confined to the region under actual occupation. In the case of married persons and on behalf of single head in the case of a single member's household, the land title should be registered jointly.
The Act does not explicitly limit the methods for excluding non-eligible forest inhabitants. This is an area of concern because if we look towards the history of tribal families many a time brutal force have been used to evict them and they have treated with great cruelty. The Act states that forest inhabitants can, by providing them with the appropriate indemnity, relocate from core National Park and Shrine areas. But the act nowhere describes that what kind of compensation would be paid to them and what would be the criteria to decide the amount of compensation. The Act also does not specify what would be redress, if not adequately compensated or totally refused by the authority for the scheduled tribes and other traditional forest dwellers.
CONCLUSION
The significance and the need of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of the Rights) Act of 2006 cannot be fully denied despite the controversial and debatable existence of this legislation. The law takes on even more importance in the case when the country is a development economy and is full-fledged on the road to capitalism, making it all the more important to provide the necessary evil of development and infrastructural growth in the remedy for vulnerable and marginalized groups and groups like Adivasis and other similar tribes.
The rules in The Scheduled Tribes and other Traditional Forest Dwellers Act, 2006 should be properly implemented. It’s high time that people’s participation in decision making should be given importance. Two criteria should be met by MoEF before permitting forest land to be diverted to use for non-forest use:
A right of each individual and community has to be recognized.
Consent of each individual is required.
In case of development related displacements there should be proper rehabilitation and compensation to be given to them before eviction. It should be seen that they should get proper opportunities and facilities as they are new to the mainstream world. The rehabilitation and resettlement money should be categorized in the act. There has to be more stringent laws for the forest authorities in case they violate any rules or use their position to abuse the rights of the forest dwellers.
PRAKHAR KUMAR
FIRST YEAR LAW STUDENT ( SYMBIOSIS LAW SCHOOL , PUNE )