ACT BEFORE ITS TOO LATE- THE SOLUTION LIES WITHINSCHEDULED AREAS IN INDIA NEED A FRESH APPROACH FROM THE LEGAL PERSPECTIVE TO SECURE LAND AND FOREST TENURE

SANJAY UPADHYAYADVOCATE SUPREME COURT OF INDIA

AND MANAGING PARTNER ENVIRO LEGAL DEFENCE FIRM

Scheduled Areas in India• Constitutionally mandated; tribal dominated;

mineral rich, forest rich and poverty stricken areas. • Scheduled Areas occupy a special place in Indian

Constitution where a special areas administration is envisaged with a Governors at the helm of affairs along with the Tribes Advisory Council

• Seven states of India have fifth scheduled areas• Four states of India especially in the north east India

have sixth scheduled areas which are almost autonomous in their administration through autonomous councils

Two Key Legislations for Scheduled Areas in India • Provisions of Panchayats (Extension to Scheduled Areas) Act,

1996 ( PESA) along with state adaptations – where every state was given one year to adapt its laws to ensure tribal

self rule especially transferring powers to Gram Sabha or the traditional village assembly

• Scheduled Tribes and Other Traditional Forest Dwellers ( Recognition of Forest Rights) Act of 2006 along with Rules of 2007 as well amendments in September 2012– Recognises and vests forest rights to forest dwelling scheduled tribes as

well as other traditional forest dwellers– Assumption is that securing forest tenure is key to sound forest

governance

Scheduled Areas as special areas of administration

• Erstwhile partially excluded areas, excluded and tribal areas • Scheduled areas declared as such by the President and are

tribal dominated, remote inaccesible areas where rtibal communites have been living in accordance with their customs and traditions and where the normal operational of law is a discretion of the Governor

• Most important role was envisaged by the constitutional head of the state i.e. the Governor.

• The Constitution also mandates the constitution of the Tribes Advisory Council which is a high powered political body aimed at giving direction to the policy relating to the tribal communities in the state among other welfare measures.

Role of Governors in Scheduled Areas:

• As special administrator of the scheduled areas but rarely seen performing!

• So what stops the constitutional heads of these scheduled state from actin?

• Is it lack of knowledge of the Constitution itself or the recent legal developments? Obviously not!

• Is it a designed inaction due to fear of the cabinet or the security of the comfortable position?

• Or is it the manner in which Governor's position is filled and the lack of basic orientation especially in such vulnerable areas.

Schematic and the current Project approach has not worked

• Schematic and programmatic approach of handing out largesse, primarily to integrate the marginalized tribal communities to the clichéd mainstream.

• The schematic approach to such areas coupled with inadequate action on self empowerment without giving regard to the customs, traditions and the special relationship with land has not worked and therefore needs to be corrected immediately

A new scheduled areas governance framework required

• Mere enactments of PESA and FRA are just like skeletons where flesh and blood and sinews need to be added in the form of operational rules, enabling orders, and easily understandable empowerment tools with massive awareness campaigns on self governance and community control over natural resources.

• What is required is a constitutionally backed, operationally easy, legally sound framework which is transparent, fair and equitable which caters to the most vulnerable, most marginalized tribal communities

Key Elements of Model Scheduled Areas Governance Framework:

• Constitutional position on Scheduled Areas therefore needs to be understood

• enabling operational directives from the state with a special focus on Governor, Tribes Advisory Council, customary laws and customary modes of dispute resolution is necessary to enable the scheduled areas to be functional as per the constitutional mandate.

• The operational framework of PESA needs to be further strengthened with clear devolution of functions, functionaries and funds.

• More importantly keeping the traditional village assembly at the centre stage.

• It is equally important to forge linkages between Scheduled Area Governance and forest governance especially in the light of the Forests Rights Act.

Key Elements of Model Scheduled Areas Governance Framework• Crucial to remove legal incongruences on specific subjects

that are crucial for a dignified tribal life. • These include – corrective measures on minor forest produce,

preventing land alienation and restoring alienated lands, controlling land acquisition, formulating and approving plans and programmes that impact the tribal community most,

• identifying and selecting beneficiaries, planning and managing minor water bodies and

• resolving disputes through traditional systems and integrating them with the recently introduced village level justice system, the Gram Nyayalaya.

New Hope New paradigm

• Assessing the robustness of the state adaptations of PESA, • Specific amendments required to smoothen the

implementation, breaking the complex model into small doable components on various subject matters such as minor forest produce, land alienation, minor water bodies, tribal sub plan and participatory models of criteria development to monitor programmes at the village level

• Exploring the concept of periphery development fund contributions by those who are using the natural resources,

• Strengthening the planning process and inclusion of scheduled area development to mitigate conflicts

• New political dispensation new hopes!

THANK YOU

SANJAY UPADHYAYsanjay@eldfindia.com

+91-9810298430