C. R Bijoymmpindia.in/documents/resources/Issues-Challenges-of-Schedule-Area.pdfexisting or deemed...
Transcript of C. R Bijoymmpindia.in/documents/resources/Issues-Challenges-of-Schedule-Area.pdfexisting or deemed...
………C. R Bijoy
Kotagiri, Tamilnadu 14 May 2017
Fifth Schedule Constitutional safeguards
Report by Governor to President regarding administration. (Clause 3)
Tribal Advisory Council (TAC) to advise Governor. (Clause 4)
Direction by Governor regarding Central/State Act not to apply or to apply with modification. (Clause 5)
Union to give directions to the States as to administration of Scheduled Areas (clause 3)
State-wise no. of Districts in PESA States
State Number of districts
fully covered
Number of districts
partly covered
Andhra Pradesh
including Telengana
- 9
Chhattisgarh 7 8
Gujarat 4 7
Himachal Pradesh 2 1
Madhya Pradesh 4 13
Maharashtra - 12
Odisha 6 6
Jharkhand 12 3
Rajasthan 2 3
TOTAL 37 62
Provisions in PESA
PESA
In consonance with the customary law, social and religious
practices and traditional
management practices of community resources
[Sec.4(a)]
A village: A habitation or a group
of habitations or a hamlet or a group of
hamlets [Sec.4(b)]
Ensure that Panchayats at the higher level do not assume the powers and
authority of any Panchayat at the lower level or of the Gram Sabha
[Sec.4(n)]
Follow the pattern of the Sixth
Schedule at the district level
[Sec. 4(0)]
Provisions in PESA
GRAM SABHA
Safeguard and preserve
traditions
[Sec. 4(d)]
Safeguard and preserve
community resources
[Sec. 4(d)]
Safeguard and preserve customary
mode of dispute resolution
[Sec. 4(d)]
Approve GP plans, programmes and projects for social
and
economic development
[Sec. 4(e)(i)] Identify
beneficiaries
[Sec. 4(e)(ii)]
Issue Utilisation Certificates to
Panchayats
[Sec. 4(f)]
Provisions in PESA
GRAM SABHA or PANCHAYATS
Right to mandatory consultation in land
acquisition
[Sec. 4(i)]
Right to mandatory consultation in Resettlement
& Relocation
[Sec. 4(i)]
Right to recommend prospecting
licenses/leases for minor minerals [Sec.4(k)]
Right to recommend for grant of
concession for minor minerals [Sec.4(l)]
Provisions in PESA
GRAM SABHA and
PANCHAYATS Regulate
sale/consumption of intoxicants [Sec.4(m)(i)]
Ownership of minor forest produce [Sec.4(m)(ii)]
Prevent land alienation and restore alienated
land
[Sec.4(m)(iii)]
Manage village markets
[Sec.4(m)(iv)] Control over money lending to STs
[Sec.4(m)(v)]
Control over institutions and
functionaries in social sector
[Sec.4(m)(vi)]
Control over local plans and resources
[Sec.4(m)(vii)]
Provisions in PESA
PANCHAYATS
Planning and management of minor water bodies to
Panchayats at the appropriate level
[Sec. 4(j)]
PESA and State Panchayati Raj Acts and Subject laws
States
An
dh
ra
Pra
des
h
Ch
hatt
isgarh
Gu
jara
t
Him
ach
al
Pra
des
h
Jh
ark
han
d
Mad
hya
Pra
des
h
Mah
ara
shtr
a
Od
ish
a
Raja
sth
an
Tel
engan
a
Sta
te P
an
chayati
Raj
Act
wh
eth
er c
om
pli
an
t w
ith
(Sec
tion
4 o
f P
ES
A)
d: Safeguard traditions and customs of the people Y Y Y Y Y Y Y Y Y Y
e: Approve Plan, programme and projects Y Y Y Y Y Y Y Y Y Y
f: Certification of utilisation of funds Y Y Y Y Y Y Y Y Y Y
h: Nomination of STs Y Y Y Y Y Y Y Y Y Y
i: Consultation before land acquisition and for settlement/rehabilitation Y Y Y Y N Y Y Y Y Y
j: Minor water bodies Y Y Y Y N Y Y Y Y Y
k: Prospecting licence for minor minerals Y Y Y Y N Y Y Y Y Y
l: Concession for minor minerals Y Y Y Y N Y Y Y Y Y
m
i: Consumption of any intoxicant Y Y N Y N N Y Y Y Y
ii: Ownership of minor forest produce Y N Y Y N N Y Y Y Y
iii: Prevent land alienation & restore alienated land Y Y Y Y N N Y Y Y Y
iv: Manage village markets Y Y Y Y Y Y N Y Y Y
v: Control over money lending Y N Y Y N N Y Y Y Y
vi: Control over institutions/functionaries in social sectors Y Y Y Y Y Y Y Y Y Y
PESA and State Panchayati Raj Acts and Subject laws
States
An
dh
ra P
rad
esh
Ch
ha
ttis
ga
rh
Gu
jara
t
Him
ach
al
Pra
des
h
Jh
ark
ha
nd
Ma
dh
ya
Pra
des
h
Ma
ha
rash
tra
Od
ish
a
Ra
jast
ha
n
Tel
eng
an
a
Co
mp
lia
nce
of
Imp
ort
an
t
Su
bje
ct L
aw
s w
ith
PE
SA
Land Acquisition N Y Y Y N Y N N N N
Excise N Y Y Y N Y N Y N N
Forest Produce N N N Y Y N Y Y N N
Mines & Minerals N Y Y Y N Y N Y Y N
Village Market N Y Y N N Y N N N N
Money Lenders N Y Y N N N N Y Y N
PESA: A Reality Check Operationalising the Law
Rules to operationalise the law– status
Notified in Himachal Pradesh, Andhra Pradesh (incl. Telengana),
Rajasthan in 2011; Maharashtra in 2014
Not notified in Madhya Pradesh, Chhattisgarh, Gujarat, Odisha and
Jharkhand
June 14, 2016: Maharashtra Governor under para 5 of Fifth Schedule
issues notification amending Sec.l36 A of the Maharashtra Revenue
Code, 1966 preventing the Collector from sanctioning transfer of land
from tribal to non-tribal without the previous sanction of the Gram
Sabha
PESA: A Reality Check Operationalising the Law
No State formulated the Sixth Schedule pattern at the District level nor has
the Centre
The Sixth Schedule pattern exist in the Tribal Areas 3 in Assam, 3 in
Meghalaya, 3 in Mizoram and 1 in Tripura
Autonomous Councils also constituted under State legislations - 6 in
Assam, 5 in Manipur and 1 in Jammu & Kashmir
Whither Municipal Law in Scheduled Areas The Missing Law
2001: The Provisions of the Municipalities (Extension to the
Scheduled Areas) Bill introduced in Rajya Sabha; referred to Parliamentary standing committee for discussion
2003: Parliamentary standing committee submits its report
2010: MESA Bill last enlisted for discussion in the monsoon session in 2010. Since then, it has not appeared in the list of business
Panchayat areas in Scheduled Areas upgraded to municipal
areas taking them out of the purview of PESA
About 181-200 municipalities functioning unconstitutionally in scheduled areas
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act of 2013 (LARR)
No acquisition in Scheduled Areas as far as possible
Prior consent of Gram Sabha; where they do not exist Panchayats or the ADCs
Development plan + settling rights including restoration of alienated land + alternative fuel, fodder and NTFP resource in non-forest lands within 5 years
1/3 of compensation to be paid as first installment; rest after taking over the land
Resettlement preferably within the same Scheduled Area in a compact block; if not addition of 25 percent plus Rs. Fifty thousand
If resettled outside Scheduled Area/Tribal Area, then all rights/ entitlements are to be extended to that area
Provision of land for community and social gathering
Recognizing Customary Tenure Systems Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act 2006; Rules notified in 2008.
Applies to - All forest land: "land of any description falling within any forest area" and includes unclassed forests, undemarcated forests, existing or deemed forests, protected forests, Sanctuaries, National Parks and Tiger Reserves
Potential: At least 150 m forest dwellers in over 170,000 villages with a minimum of 40 m ha
55,57,523.08 ha recognized in 17,90,624 titles out of 41,65,395 claims (42.99 %) filed on February 2017
transfer of power over part of the forest to Gram Sabha opening up a new era of forest and livelihood governance
a new people-based and people centered institutional mechanism (GS-SDLC-DLC-SLMC) of forest governance
provides space for a dynamic decision making to constantly seek and improvise solutions instead of the mostly failed straight-jacketed one-size-fits-all command-and-control solutions
Forest Rights Act 2006
COMMUNITY RIGHTS Non Timber
Forest Produce
Water bodies, fisheries etc
Grazing
Seasonal resource
access
Access to biodiversity Intellectual
property rights
Traditional knowledge
Cultural diversity
Habitat
Forest Rights Act 2006
INDIVIDUAL RIGHTS Self Cultivation
up to 4 ha
Habitation
Restoration of Titles, Grant or Lease
Disputed Lands
Alternate Land in situ Rehabilitation
Government acquired land not
used within 5 years after displacement
without Compensation
Forest Rights Act 2006
DEVELOPMENT
School
Anganwadi (supplementary nutrition
and health care to children and mothers)
Electricity / Telecommunication
Drinking Water Supply / Water Pipe Lines
Non-Conventional Energy
Roads
RIGHTS
Dispensary / Hospital
Fair Price Shops
Tanks/ Minor Water Bodies
Minor irrigation Canals
Vocational Training/Skill Upgradation Centre
Community Centre
Water or Rainwater Harvesting Structures
FRA potential and actual recognition Minimum
potential area to
be recognized
(in hectares)
No of
Number of
claims
Number of
titles
distributed up
to 28.02.2017
Extent of
forest land
for which
title deeds
issued (in
hectares)
Actual area
recognized
No. of
claims
rejected
No. of
claims
disposed off
400,00,000 # 41,65,395
(40,26,970
Individual,
1,38,425
Community)
17,90,624
17,27,655
Individual,
62,969
Community)
55,57,523
(16,51,013
Individual
and
39,06,510
community)
13.9 % of
minimum
potential area
18,47,071
(44.34 % of
total claims
and 50.78 %
of the total
disposed
off)
36,37,695
(87.33 %)
# Ministry of Environment and Forests 2009. Asia-Pacific Forestry Sector Outlook Study II: India Country Report. Working
Paper No.APFSOS II/WP/2009/06, Bangkok: FAO, p 72 accessible at http://www.fao.org/docrep/014/am251e/am251e00.pdf
FRA potential and actual recognition in
States with Scheduled Area
SL.
No State
FRA
Potential
area (ha)
Area
recognised
under FRA as
on
February 2017
(in ha)
Status as
on
February
2017
Per cent
Number of
claims as
on
February
2017
Titles
distribute
d as on
February
2017
1 Andhra Pradesh
25,96,732
2,60,343.99
21.78
1,73,590 87,030
2 Telengana 3,05,192.46 1,86,534 94,215
3 Chhattisagrh 10,03,195 8,89,742.44 88.69 8,69,516 3,86,432
4 Gujarat 12,55,846 5,09,875.04 40.6 1,90,056 83,512
5 Himachal Pradesh 13,90,704 1890 0.14 659 7
6 Jharkhand 19,94,387 58,181.22 2.925 1,02,510 56,181
7 Madhya Pradesh 32,30,528 8,47,937.73 26.25 6,14,718 2,38,842
8 Maharashtra 36,13,880 20,28,677.38 56.14 3,64,358 1,12,646
9 Odisha 23,02,706 3,60,890.67 15.67 6,25,698 4,10,617
10 Rajasthan 25,79,446 22,501.32 0.87 71,203 36,255
Forest Rights Act 2006 Inviolate Areas
STATE GOVERNMENT
• Establishes that irreversible damage and threat to species & their habitat (obtaining consent of STs and OTFDs that this is so)
• Concludes no option for co-existence (Obtain consent of STs and OTFDs and in consultation with an ecological and social scientist)
• Shall not be subsequently diverted by State or Central governments
GRAM SABHA
• Free informed consent to resettlement package for secure livelihood for individuals and communities (livelihood only and consent from the affected persons too)
• Relocate only after resettlement package is fully in place
FRA read with read with WLPA amendment 2006
Forest Rights Act 2006 Inviolate Areas
49 Tiger Reserves notified under Sec.38 V of the 2006 amendment of the
Wildlife Protection Act 1972
Covering an area of 7,024,400.10 hectares
Core or Critical Tiger Habitat area : 3,966,900.12 hectares
Buffer area : 3,057,400.98 hectares
Notifications do not fulfil provisions under both WLPA and FRA
Relocations too ex: Sariska, Ranthambore, Simlipal, Tadoba, Achanakmar
and Nagarhole Tiger Reserves – in violation of laws
…..and there are already 103 National Parks covering an area of 40,50,013
hectares with overlap with Tiger Reserves…………
Forest Rights Act 2006 Institutional Mechanism
Gram Sabha Sub-Divisional
Committee
District Level Committee
Forest Rights Committee
Community Forest Resource Management
Committee
Forest Rights Act 2006 Institutional Mechanism
Gram Sabha State Level Monitoring Committee
OFFENCE
Any authority violating any provision is an offence
The accused is to prove innocence
The aggrieved or Gram Sabha to issue notice to State
Level Monitoring Committee for action against the
accused
Action within 60 days
Forest Rights Act 2006 Forest Diversion
STATE GOVERNMENT
• Certifies completion of FRA
• Certifies diversion for development facilities under Sec.3(2) of FRA is completed
• Certifies completion of rights recognition of PVTGs under Sec.3(1)(e): habitat and habitation rights
• Certifies project proposal for diversion placed before Gram Sabha
• Certified Gram Sabha decisions taken with 50 % quorum
GRAM SABHA
• Certifies completion of FRA
• Grant s consent to forest diversion
Forest Diversion since 2008 -2015
Year Area diverted in hectares
2008 28,509.45
2009 87,883.67
2010 43,370.38
2011 26,171.88
2012 25,218.631
2013 41,716.921
2014 35,867.47
2015 11,525.59
TOTAL 300,263.992
1950-1980: About 4.3 m ha @144,000 ha per annum
1980-2007: 64,701.93 @ 24,026 ha per annum
Were the procedures for forest diversion followed since 2008 when FRA
became operational and implementation itself has been very poor????
Dilution of Forest Rights Act, 2006
MoEF 5 February 2013: Exemption of linear projects like construction of roads,
canals, laying of pipelines/optical fibres and transmission lines etc unless recognised
rights of PVTGs are being effected, from obtaining consent of Gram Sabhas
MoEF 28 October 2014: Exemption of forests notified 75 years prior to 13
December 2005 in villages with no STs from FRA and only Collector's certificate
required
MoTA 07 March 2014: Compliance with FRA required as the law does not provide
for any exemption
Dilution of Forest Rights Act, 2006
MoEF & CC August 2015 Guidelines for Privatization of Forests
leasing 40 percent of the 'degraded' forests to private companies for afforestation
without any mention of forest rights
restriction of community access to only "10-15%" of the leased out lands for
non-timber forest produce including fodder in violation of the Forest Rights Act
Dilution of Forest Rights Act, 2006
June 4, 2015: Madhya Pradesh Protected Forest Rules, 2015 where the government
can declare wooded areas traditionally used by forest dwellers as “village forest”
instead of giving communities titles over such land under the FRA.
July 28, 2015: Jharkhand government orders Deputy Commissioners to settle all the
“eligible” claims of FRA within a month and get implementation certificates from
gram sabhas by October 2.
August 2015: Chhattisgarh government asked gram sabhas or village committees to
certify that the law was implemented in full despite large-scale gaps. Such
certificates are mandatory for diversion of forestland for industrial purpose.
Dilution of Forest Rights Act, 2006
November, 2015: The Prime Minister‟s Office and the Environment Ministry
continued to pressurise bypassing of FRA even after its own Tribal Ministry has said
such moves are “illegal” for:
delinking forest rights recognition as pre-requisite for forest diversion,
fixing time to receive and settle claims,
exemption from FRA in all villages that do not have eligible forest rights
holders, and
exemption from FRA in all underground mining proposals.
MoTA again clarifies that these are not as per law on 14 December 2015.
January 8, 2016: Chhattisgarh cancels titles issued under FRA citing that tribals
were exercising rights which was coming in the way of mining in Parsa East and
Kete Besan coal blocks to be worked by Adani Mining. MoEF approved forest
diversion in March 2012 despite claims by people; CFR titles granted in September
2013.
Dilution of Forest Rights Act, 2006
March 28, 2017: The National Tiger Conservation Authority, Ministry of
Environment, Forest and Climate Change issued an order to the Chief Wild Life Wardens of all tiger range states that 'no rights shall be conferred in Critical Tiger Habitats which is duly notified under section 38 V(4)(1) of the Wildlife (Protection) Act 1972'. The Ministry does not have powers to issue orders related to forest rights and the order is in violation of Wildlife (Protection) Act as well as FRA.
Compensatory Afforestation, Management and
Planning Authority Act, 2006 (CAMPA) Campa fund - Net Present Value (NPV) collected by the government for forest land
diverted for non-forest purposes under the Forest (Conservation) Act, 1980 ranging
from Rs.4.38 lakh to 10.43 lakh per hectare (2008)
Legal Status‟ of the area diverted remains „Forest land‟ or „Reserved Forest/
Protected Forest
Fund to be used for regeneration of forests, forest management, protection,
infrastructure development, wildlife protection and management and related
activities
Afforestation in double the area diverted if on forest land and equivalent area if on
revenue land (to be later notified as forest land)
Compensatory Afforestation, Management and
Planning Authority Act, 2006 (CAMPA) Created on the direction of the Supreme Court in the case of T N Godavarman case
October 2002: Supreme Court (SC) directs the formation of a Compensatory
Afforestation Fund.
April 2004: CAMPA notified by MoEF
During 2006-2012 CAMPA fund grew from Rs 1,200 crores to Rs 23,608 crores and
now stands at about Rs.42,000 crores
Faulty assumptions
putting a price tag on forest land will reduce forest diversion
it is „blood‟ money collected by destroying natural ecosystems.
loss of natural forest and ecosystem can be „compensated‟ by planting trees
a forest is a sum total of trees; planting equal or even double the number of trees
felled would compensate the loss
Compensatory Afforestation, Management and
Planning Authority Act, 2006 (CAMPA)
Afforestation in –
Double the area diverted in degraded forest land rich in biodiversity
including grasslands, wetlands and scrub forest
Same area as area diverted in revenue land which are common lands
accessed for livelihood by marginalised
Forest departments lack the planning and implementation capacity (2013
CAG Report on afforestation)
Between 2003 and 2014 afforestation was carried out on 19.64 million ha
but the forest cover increased by only 2.4 million ha „leaving a hole of 17
million ha
Protecting Rights
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Amendment
Act, 2016:-
Notified on 1 January 2016 with effect from 26 January 2016
Provides for penal action of imprisonment of not less than six months extending to
five years with fine for –
wrongful occupation and dispossession of land, [Sec.3(1)(g)]
interference with rights including rights over forest (as defined under Forest
Rights Act), land and water, [Sec.3(1)(g)]
obstruction of rights to common property resources [Sec.3(1)(za)(A)]
Protecting Rights
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act of 2013
Fishing rights in reservoir area for loss of these rights in a river, pond or dam
FRA Community rights to be quantified and paid to individuals displaced
June 14, 2016: Maharashtra Governor issues notification amending Sec.l36 A of the
Maharashtra Revenue Code, 1966 preventing the Collector from sanctioning transfer
of land from tribal to non-tribal without the previous sanction of the Gram Sabha
June 18, 2016: Governor of Maharashtra issues Indian Forests (Maharashtra)
(Regulation of Assignment, Management and Cancellation of Village Forests)
(Amendment) Rules 2016 to exempt the application of Indian Forests (Maharashtra)
(Regulation of Assignment, Management and Cancellation of Village Forests) Rules
2014 to the Scheduled Area of Maharashtra.
The Way Forward….!!!!
1. Upgradation of Panchayats to Municipalities in Scheduled Areas
Declare null and void all upgradation of panchayats to municipalities since 74th Amendment 1992;
Ban all upgradation till enactment of MESA
Enact Municipalities (Extension to Scheduled Areas) Bill
2. Structures above the Gram Sabha at district level in Scheduled Area
A MoTA-MoPR Special Task Force to study and recommend a law for the District level patterned on Sixth Schedule
Amend PESA to incorporate these provisions
Directions under Fifth Schedule Provisos to amend State Panchayati Raj Acts
Rationalize Schedule Areas by reorganizing administrative units by issuing directions under Fifth Schedule Provisos
The Way Forward….!!!!
3. Compliance of State Panchayat Raj Acts with PESA
Issue directions under Fifth Schedule Provisos to amend State Panchayati Raj Acts
4. Aligning subject laws with PESA
Union Government
Amend Mines and Minerals (Development and Regulation) Act, 1957, the Indian Forest Act, 1927, the Forest (Conservation) Act, 1980, and the Indian Registration Act, 1908 and national policies such as the National Water Policy, 2002, National Minerals Policy, 2003, National Forest Policy, 1988, and Wildlife Conservation Strategy, 2002
State governments
Amend State subject laws
Issue directions under Fifth Schedule Provisos to amend State subject laws
The Way Forward….!!!!
5. Include tribal habitations not included yet under the Fifth Schedule
Issue directions under Fifth Schedule Provisos to amend State Panchayati Raj Acts
States to prepare proposals within a year for Presidential notification
A Special Task Force of GOI to expedite the process
6. Protection from land alienation and restoration of alienated land
Transfer of land alienation/restoration cases pending in the court to the Gram Sabha
Demarcate the geographical jurisdiction of the ‘villages’ tincluding the forest area recognized under FRA
All land in Scheduled Area to serve the interest of Scheduled Tribes
The Way Forward….!!!!
Prohibit all transfer of tribal/non-tribal lands to another non-tribal/tribal
Gram Sabha to buy all such lands using Land Consolidation Fund
Land Consolidation Fund' (LCF ) to be created at the State level,; release fund to Districts; for Gram Sabha to buy all lands within its jurisdiction for reallotment to landless STs or as common land
Issue directions under Fifth Schedule Provisos on the above
7. Redefine the role of Ministry of Tribal Affairs
Empower MoTA for inter-ministerial coordination regarding PESA in addition to FRA
The Way Forward….!!!!
8. Forest Rights
Amend Compensatory Afforestation, Management and Planning Authority Act, 2006 (CAMPA) to comply with FRA
Amend all State laws to comply with FRA for which issue directions under Fifth Schedule Provisos
Union Government to issue directions under Sec.12 of FRA to
Review and withdraw all forest offences falling within the purview of FRA
Empower the institutional mechanism under FRA
Give first priority to recognize Community Resource Rights [Sec.3(1)(I)] to all habitations and habitat rights of PVTGs.[Sec.3(1)(e)]
Consider rights under FRA to all lands demarcated as forest as land use in the census reports and forest survey of India reports at a minimum
Operationalise the appeal and offence clauses in Sec.6 and 7 and report to MoTA
…..thanks