India's post-Independence Industrial Revolution imposed an even more onerous burden on the tribals through what Nehru called the "temples of modern India" - massive hydroelectric projects that rendered millions of tribals homeless and hopeless, worsened by giant mining projects which added to the number and misery of the displaced. Meanwhile, traditional tribal self-sufficiency was replaced by non-tribal traders penetrating the forest in search of timber, bamboo, tendu leaves and "minor forest produce". Worse came the mining barons of the public and private sector, who turned the innocent tribal into either an unwanted alien in his own homeland or into an oppressed proletariat - what Marx called the "immiseration of labour" was never more stark than what beset the forest when non-tribals came to call themselves "stakeholders" in forest wealth.
The Twelfth Plan documents furnish the shocking figure that over the years since Independence, this allegedly free country has displaced over 65 million tribals in the name of development. Despite the tribals constituting a mere 8 per cent of our population, their share in the total number of displaced persons is well over half - some 55 per cent. No wonder our tribals do not regard development as desirable but disruptive.
Having been driven out of the mainstream into impoverishment in the forests thousands of years ago by predatory Brahminism, now that modernization has discovered the vast economic resources of the jungle, it is the tribals whom predatory industrialization, mining and the exploitation of forest wealth has reduced to further impoverishment, the deprivation of their livelihoods and the elimination of their identity. It would take a Karl Marx to effectively write up their sufferings.
Their tale of misery finally moved the governments of the Nineties to begin legislating the statutory protection and promotion of tribal communities. The first of these key steps was the Panchayats (Extension to Scheduled Areas) Act, 1996 [PESA] that wrote up the most progressive panchayat raj law for just the tribal population living in Fifth Schedule areas. That is, the law was applicable in areas of tribal concentration that are part of composite states like Madhya Pradesh, Chhattisgarh, Jharkhand, Odisha - and Maharashtra, which is of particular salience to this column. The Act specified that self-governing village panchayats in tribal Fifth Schedule areas would be organized on the basis of hamlets and strongly empowered the Gram Sabha (which was, in effect, a Hamlet Sabha and, therefore, manageably small in numbers and socially cohesive) to supervise and manage the hamlet's panchayat in the interest of the local inhabitants. Moreover, PESA conferred rights of ownership on minor forest produce - the chief source of tribal income - on the Gram Sabhas at hamlet level, besides a number of other rights involving the right to be consulted or even the right to consent in relation to the economic exploitation of local natural resources, particularly forest resources.
The second major legislation to safeguard tribal interests came a decade later in 2006, with the passage of the Forest Rights Act which gave tribals (and other traditional forest dwellers) a whole host of rights to protect them from forced displacement and ensure that the Gram Sabha gave its consent before tribal communities were driven off the land and the forests from which they derived their livelihood.
Devendra Fadnavis' Village Forest Rules 2014 were designed to deprive tribal villages of the rights they had secured under these two laws. The attempt was to restore control over forest produce to government and the businessmen, big and small, it wished to patronize. Jual Oram initially said, "Nothing doing". At this, Fadnavis roped in fellow-Maharashtrian, Prakash Javadekar, Union Minister of Environment, Forests and Climate Change, to lean on Oram to get him to withdraw his objections.
In a brilliantly argued note, Oram's ministry hit back. I have a copy of the note. It argues that the draft Maharashtra Village Forest Rules 2014 "encroach upon and are irreconcilable with the provisions of the Forest Rights Act and PESA." Setting out the rights conferred on tribal Gram Sabhas, Oram's ministry argued that the Forest Rights Act conferred "ownership of minor forest produce to tribal communities". The Act also conferred on these tribals the right to "community forest resources", as also rights to "fishing, grazing and other usufructuary rights." It was patiently explained that these rights, once granted,"cannot be taken away by the State executive under any circumstances." It further added that these rights "cannot be surrendered by the forest dwellers, whether voluntarily or otherwise."
Moreover, said the note, as the Forest Rights Act recognizes and vests these forest rights "notwithstanding anything contained in any other law for the time being in force" (I should know for I, as Minister of Panchayati Raj had proposed this!). The clause is "non-obstante", that is, it constitutes "a very important and categorical message from the Parliament that the rights vested and recognised by the Forest Rights Act shall over-ride any legal regime or executive arrangement which is contrary to such right." Moreover, says the note, the same approach is "mirrored" in the PESA clause that confers unfettered rights on tribal Gram Sabhas to "ownership" of minor forest produce. Hence, Maharashtra's Village Forest Rules 2014 are "invalid" as such rights "are non-transferable and cannot be surrendered or cancelled or taken away under any subsequent legislation or executive instruction or otherwise."
Oram's ministry went on to state that under the Forest Rights Act, Forest Conservation and Management Committees (FCME) were to be established "under the direct supervision of the Gram Sabhas" to draw up plans for "preservation, protection, management and conservation of the community forest resource" and to duly integrate this with the State Forest Department's working plans, while ensuring that "plans are made and executed under the authority of Gram Sabhas at all times." But quite contrary to these unambiguous statutory requirements, the Maharashtra Rules 2014 seek to compel the Gram Sabha to "divest itself of all its statutory powers and responsibilities" and revert to being "completely subordinated to the working plan of the Forest Department."
Nothing can more effectively take forest management back to the colonial era than Maharashtra's draft Rules. They are completely reactionary, backward-looking,anti-tribal and anti-democratic. That perhaps is why Modi's ardent acolyte, Devendra Fadnavis, clings to his Rules so avidly. As such, these provisions are, says Oram's note, "generally, specifically and inherently in violation of the Forest Rights Act".
However, they are in conformity with the Modi model of development in Gujarat that resulted in the tribal share of displacement reaching a staggering 76 per cent. And perhaps it is because the Maharashtra Rules are completely illegal that Ravi Shankar Prasad's Department of Legal Affairs has failed to tender its legal opinion on the validity of the Maharashtra Rules despite Oram's ministry pressing them to do so. They know they would have to declare in favour of Modi's preferences even though the2104 Rules are violative of the law. They dare not do so. So they hide behind the veil of not replying to a reference that is well over a year old.
Modi and Javadekar have thus pressurized Oram to abandon his position of principle and legal rectitude to agree to a messy compromise under which Maharashtra will go ahead with this wholesale destruction of hard-won tribal rights while Oram's ministry and Jadvekar's jointly work out Model Rules that will try to implement State Forest Department plans in "harmony" with the provisions of PESA and the Forest Rights Act. This is a myth as Oram's ministry have rightly asserted that the Maharashtra Rules "cannot, under any circumstances, be harmonized with the provisions of the Forest Rights Act"!
In Smrita Irani and VK Singh, we have ministers who have demonstrated an overt anti-Dalit bias. In its attempt to harmonize that which "cannot, under any circumstances," be harmonized, we see the anti-tribal bias of the Modi government. God help the marginalized and oppressed sections of our society from this government.
(Mani Shankar Aiyar is a Congress MP in the Rajya Sabha.)
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