“INDIAN FOREST LAW IN THE CONTEXT OF TRIBAL PEOPLE”

ABSTRACT

The Scheduled Tribe and Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
popularly known as Forest Rights Act was enacted in 13 December 2007 through the Ministry of
Tribal Affairs to correct the historic injustice done to the forest dwellers. These forest dwelling
communities were cultivating or occupying the forest land and using forest produce since ages.
The tribal’s and forest dwellers don’t have land security. The Act recognizes and vests individual
forest dwellers with forest rights to live in and cultivate forest land that was occupied before 13th
December 2005 and insists the State Governments to grant community forest rights to manage
protect and regenerate the forest to own use and dispose non timber forest produce from forests
where they had traditional access. The Government of India after independence introduced
different policies and laws that paved the way to recognize the rights of tribal and forest dweller
over their ancestral land, including the right to earn their livelihood from the forest and
maintained the cultural identity traditionally linked to the tribal and forest dwelling communities.
The FRA is the landmark in the evolution of government’s attitude towards the tribal people and
their rights.

INTRODUCTION

Tribal peoples form a major segment of the world population. They are found all over the world.
They are called by different names such as Primitive, Tribal, Indigenous, Aboriginal, Native, and
so on. India has a large number of tribal people. The major tribes in India are the Gonds, the
Bhils, the Santhals, the Oraons and the Minas. They live in different regions in the forest as well
as in urban areas, and mostly speak their own languages. The states of Madhya Pradesh, Orissa,
Bihar, Maharashtra, Gujarat, Andhra Pradesh, West Bengal, and the Northeastern Region have a
larger concentration of tribal population. The Andaman and Nicobar Islands are also inhabited by
several tribes such as the Great Andamanese, Sentenelese, Onges, Jarwas, Sompens, and so on.

The tribes, according to Verma, are “the autochthonous people of the land who are believed to be
the earliest settlers in Indian Peninsula” They are called Adivasis meaning the first settlers. Prior
to the caste system, people were divided into different tribes. At that time, each tribe was a
homogenous and self-contained unit without any hierarchical discrimination.

The scheduled tribes and other forest dwellers had a history of conservation and sustainable use
of forest as a resource base from times immemorial. With the advent of British, the main focal
point shifted from the forest, used as a resource base, for sustainable livelihood of local
communities to a state resource for commercial interests and development of land for agriculture.
And then the Indian Forest Acts of 1865 and 1927 stopped the centuries old traditional usufructs
rights of the local communities and consolidated the governments control over all types of
forests. Post independence, the National Forest Policy of 1952, the wildlife (Protection) Act,
1972 and the Forest (Conservation) Act, 1980 did little to wipe out the problems of the forest
dependent communities. Further the village communities have been separated from their age old
symbiotic relationship with forest which further branded these tribal communities as
“encroachers or illegal occupants”.

Forest and the Law

Indian forest act 1927 was enacted under British Rule as British government wanted the control
over Indian forest for earning money from valuable timber tress which was monopolized by
government. The government by exercising the absolute power excluded the forest dwellers from
exercising their rights over forest reserves where the resources like fuel, fodder were in
abundance. Forest was divided into 3 parts Reserve forest, Village Forest and Protected Forest

Tribes: Constitutional and Legislative Provisions

Backdrop: - Tribes in India have come to conceptualized primarily in relation to their

geographical and social isolation from the larger Indian society and not in relation to the stage of
their social formation. This is why a wide range of groups and communities at different levels of
social formation have all come to be categorized as tribes.

By virtue of their isolation from the larger Indian society, Tribes enjoyed autonomy of
governance over the territory they inhabited. They held control over the land, forest and others
resources and governed themselves in terms of their own laws, traditional and customs.

It was the advent of colonial rule that brought tribes and non-tribes into one single political and
administrative structure by means of war, conquest and annexation. This was followed by
introduction of new and uniform civil and criminal laws as well as setting up of administrative
structures that were alien to tribal tradition and ethos.

All these developments led to large scale alienation of land from tribes to non-tribes through
such processes and means as fraud, deceit, mortgage, etc. This being the case, the nationalist
leadership showed special concern for tribes in the post-independence India. This is reflected in
the provisions enshrined for them in the constitution.

Implementation:-

Through reservation of a certain percentage of posts in government services and seats in

educational institutions, the constitution aimed at safeguarding, protecting and promoting the
interest of tribal people. Of all the provisions, protective discrimination has been seen as one of
the most important rights given to tribal people. The Government earmarked 7.5 per cent of the
jobs in government, semi-government and also educational institutions for the scheduled tribe
category. Protective discrimination in favor of the group is also evident in relaxations granted to
candidates from the scheduled tribe category (particularly in age). Despite these provisions, the
result is far from satisfactory, more so in the case of scheduled tribes than scheduled castes.

Nevertheless, the inability of the state to fill up the quota is not considered as a violation of rights
enshrined in the constitution. This is so, because in the first place, necessary measures have been
taken in pursuit of the rights enshrined in the constitution. Secondly, the extensions of
reservation to candidates from the category are not automatic. Rather, it is contingent upon
certain conditions stipulated in the Constitution itself. Article 335, for example, stipulates that
the claims of the scheduled castes and scheduled tribe can be taken into consideration, consistent
with maintenance of efficiency of the administration in making appointments to services and
posts. Thirdly, though such rights have been given to tribes, they can avail of them only as
members of the tribal community. It is an individual in the sense that the individual is required to
take some action to ensure that he gets it. In the view of issues such as these, there is an inbuilt
difficulty in challenging the negligence or indifference of the state in the court of law.

In short, the provision of protective discrimination is not sufficient in itself.

To become effective, the provision must be supplemented by what may be called substantive
equality i.e. ability, resources and actual opportunity must be created to make the formal equality
or in the case of tribes, even protective discrimination, effective. This means there was a need for
making provisions but also through effective legal, administrative, infrastructure and financial
support.

Legislative and Government Measures:-

 In order to deal with the problem of land alienation to non-tribals and also for its
restoration, laws have been enacted in almost all states where there are tribal populations. In
some parts, such acts have been in existence since the British period like, Chotanagpur
Tenancy Act 1908 and The Santhal Pargana Tenancy Act 1940. The British initiated such
measures not so much out of concern for the tribes but for reasons of administrative and
political expediency. These were more in the direction of protection from land alienation of
the tribes and restriction of the movement of the non-tribal population into tribal areas. Post
independence, in some states, acts have even been amended with a view to protecting the
interest of non-tribes. 
 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities): POA Act,
1989:The Act prohibits the commission of offences against members of the Scheduled
Castes and Scheduled Tribes (SCs and STs) and establishes special courts for the trial of
such offences and the rehabilitation of victims.
 PESA Act, 1996:As a recent of such acts, tribal land continued to pass from tribes to non-
tribes. To reinforce the constitutional provisions for protection of the tribals, two important
laws have been enacted in more recent years. One was the Provisions of the Panchayat
(Extension to the Scheduled Areas), Act, 1996. The act empowers the scheduled tribes to
safeguard and preserve the traditions and customs of the people, their cultural identity,
community resources and customary mode of dispute resolution through the Gram Sabha. 
 The Scheduled Tribe and Other Traditional Forest Dwellers Act, 2006:The act is aimed at
undoing the age old injustice done to tribals by restoring and recognizing their pre-existing
rights. The recognition and restoration has been, however passing through rough weather in
respect of its implementation. 
 Panchshila:Under the Constitutional provisions of Directive Principles, the State’s major
concern for tribes has been their welfare and development. This was to be pursued under a
kind of constitutional provision, the letter and spirit of which was the most evident in the
five principles (panch shila, given by Pt. Nehru). Those principles have been taken as the
ethos of tribal development in post-independence India. The five principles entailed 
¬   Development along the lines of their own genius, 
¬   Respect of tribals’ right in land and forest, 
¬   Training and building up a team of their own people to do the work of administration and
development, 
¬   Not over- administering the areas with a multiplicity of schemes, 
¬   Working through, and not in rivalry, to their social and cultural institutions. 
 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill,
2014: The Bill amends certain existing categories of the 1989 POA Act and adds new
categories of actions to be treated as offences.
 Other legislative provisions:
¬   Bonded Labour System (Abolition) Act 1976 (in respect of Scheduled Tribes);
¬   The Child Labour  (Prohibition and Regulation) Act1986;
¬   States Acts & Regulations concerning alienation & restoration of  land belonging to STs;
¬    Forest Conservation Act 1980;
¬   Minimum Wages Act 1948.

Hindrances in Tribal development:

 Tribals: The biggest victims of “national development” : The approach adopted towards
tribes was quite to the contrary. This was mainly due to the imperatives of national
development. In fact, the national objective to build up a productive structure for future
growth and resource mobilization became far more important than issues concerning the
welfare and interest of the tribes. So, tribal interest and welfare were invariably sacrificed in
the name of national development. 
 Tribes have been unable to safeguard and promote their language, culture and
religion:The Article 29 of the Constitution states that a cultural or linguistic minority has the
right to conserve its language and culture. The state cannot, by law, enforce upon them any
other culture or language. While the state may not have enforced any language or culture on
them, the steps taken are far from being in consonance with the provisions laid down in the
Constitution. The posture they have adopted has invariably been in the direction of
assimilation into the language and culture of the major community, rather than protection
and promotion of the distinct language and culture of the tribes. Schooling extended to
tribes, for example, has invariably been made in the language of the dominant regional
community of the respective States. 
 Lack of institutionalized arrangement for protection: Tribes are increasingly losing
knowledge of their own language and culture. Indeed the promotion of language and culture
has been left to tribals themselves. Yet, because of lack of control over human,
organizational and financial resources, the tribes have not been able to take effective
 measures in this direction. Only where such support has been made available in some form
or the other, have tribes been able to protect and safeguard their culture. This explains why
in western, northern and southern India, there has been much more erosion of the tribal
language and culture. In eastern India, especially the northeast, the scenario is somewhat
better. This has been mainly due to the fact that in north- east India, there was a kind of
institutionalized arrangement that facilitated such development. This has received a major
boost with the creation of tribal states and autonomous districts. This shows that a collective
right such as this can be better realized only where tribes see themselves as a nationality or
nation, to govern themselves. 
 Exclusion and Marginalization of Tribes: It is ironical that despite a large number of well
meaning constitutional and legislative support, the process of marginalization of the tribals
has gone on unabated. Paradoxically, at the root of such marginalization are the laws
themselves. Tribes had no tradition of reading and writing and had, hence, no tradition of
record keeping and dealing with such laws. The court language and practice had been alien
to them. In the absence of such tradition, the non-tribes have taken advantage of such laws
and have been depriving tribals of their lands through variety of ways and means. The local
administration, which is generally manned by the non-tribals, has been working hand in
hand with their ethnic kinsmen to ensure smooth transfer of land from tribes to non-tribes. 
 Tribal interest vs public interest: Tied up with the above have also been laws that protect
tribes and the laws that are meant for general citizenry and human beings. The latter is
articulated in terms of citizenship and human rights. Indeed, rights meant for tribes have
invariably been pitied against citizenship rights and more importantly human rights. In the
process, specific laws meant for a group, even though marginalized, have invariably come to
be subjected to general laws. On the same vein are the laws aimed at protecting tribes and
those aimed at public interest such as land acquisition act, conservation act, forest act,
wildlife sanctuary act, etc. Tribal rights have come to be sacrificed to the greater cause of
the nation and public interest.
 Dams causing displacement: Building dams across rivers have caused large scale
displacement of tribal people among others.

The Human Rights at Issue:-

The human rights of indigenous people and peoples are explicitly set out in the ILO Indigenous
and Tribal Peoples Convention (No. 169), the Universal Declaration of Human Rights, the
International Covenants, the Convention on the Elimination of All Forms of Racial
Discrimination, the Convention on the Rights of the Child, and other widely adhered to
international human rights treaties and Declarations. They include the following indivisible,
interdependent and interrelated human rights.

The human right to freedom from any distinction, exclusion, restriction or preference based on
their indigenous status which has the purpose or effect of impairing the enjoyment of human
rights and fundamental freedoms that are :

 The human right to freedom from discrimination in access to housing, education, social
services, health care or employment.
 The human right to equal recognition as a person before the law, to equality before the courts,
and to equal protection of the law.

 The human right of indigenous peoples to exist.

 The human right to freedom from genocide and ‘ethnic cleansing’.

 The human right to livelihood and work which is freely chosen, and to subsistence and access
to land to which they have traditionally had access and relied upon for subsistence.

 The human right to maintain their distinctive spiritual and material relationship with the lands,
to own land individually and in community with others, and to transfer land rights according to
their own customs.

 The human right to use, manage and safeguard the natural resources pertaining to their lands.

 The human right to freedom of association.

 The human right to enjoy and develop their own culture and language.

 The human right to establish and maintain their own schools and other training and
educational institutions, and to teach and receive training in their own languages.

 The human right to full and effective participation in shaping decisions and policies
concerning their group and community, at the local, national and international levels, including
policies relating to economic and social development.

 The human right to self-determination and autonomy over all matters internal to the group,
including in the fields of culture, religion, and local government.

In recognition of the fact that indigenous and tribal peoples are likely to be discriminated against
in many areas, the first general, fundamental principle of The Tribal People’s Convention No.
169 is non-discrimination. Article 3 of the Convention states that indigenous peoples have the
right to enjoy the full measure of human rights and fundamental freedoms without hindrance or
discrimination. In Article 4, the Convention also guarantees enjoyment of the general rights of
citizenship without discrimination. Another principle in the Convention concerns the application
of all its provisions to male and female indigenous persons without discrimination (Article 3).
Article 20 provides for prevention of discrimination against indigenous workers.

In response to the vulnerable situation of indigenous and tribal peoples, Article 4 of the
Convention calls for special measures to be adopted to safeguard the persons, institutions,
property, labour, cultures and environment of these peoples. In addition, the Convention
stipulates that these special measures should not go against the free wishes of indigenous
peoples.
Recognition of the cultural and other specificities of indigenous and tribal peoples and
consultation of the Tribal People’s convention No. 169

Indigenous and tribal peoples’ cultures and identities form an integral part of their lives. Their
ways of life, customs and traditions, institutions, customary laws, forms of land use and forms of
social organization are usually different from those of the dominant population. The Convention
recognizes these differences, and aims to ensure that they are protected and taken into account
when any measures are being undertaken that are likely to have an impact on these peoples. The
spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on
which all its provisions are based. The Convention requires that indigenous and tribal peoples are
consulted on issues that affect them. It also requires that these peoples are able to engage in free,
prior and informed participation in policy and development processes that affect them.The
principles of consultation and participation in Convention No. 169 relate not only to specific
development projects, but also to broader questions of governance, and the participation of
indigenous and tribal peoples in public life.

In Article 6, the Convention provides a guideline as to how consultation with indigenous and
tribal peoples should be conducted:

Consultation with indigenous peoples should be undertaken through appropriate procedures, in

good faith, and through the representative institutionsof these peoples;

The peoples involved should have the opportunity to participate freely at all levelsin the
formulation, implementation and evaluation of measures and programmes that affect them
directly;

Another important component of the concept of consultation is that of representativity. If an

appropriate consultation process is not developed with the indigenous and tribal institutions or
organizations that are truly representative of the peoples in question, then the resulting
consultations would not comply with the requirements of the Convention.

The Convention also specifies individual circumstances in which consultation with indigenous
and tribal peoples is an obligation.

Consultation should be undertaken in good faith, with the objective of achieving agreement. The
parties involved should seek to establish a dialogue allowing them to find appropriate solutions
in an atmosphere of mutual respect and full participation. Effective consultation is consultation
in which those concerned have an opportunity to influence the decision taken. This means real
and timely consultation. For example, a simple information meeting does not constitute real
consultation, nor does a meeting that is conducted in a language that the indigenous peoples
present do not understand.
The challenges of implementing an appropriate process of consultation with indigenous peoples
have been the subject of a number of observations of the ILO’s Committee of Experts, as well as
other supervisory procedures of the ILO, which the ILO has now compiled in a Digest. Adequate
consultation is fundamental for achieving a constructive dialogue and for the effective resolution
of the various challenges associated with the implementation of the rights of indigenous and
tribal peoples.

INDEBTEDNESS AND DEBT RELIEF LEGISLATION

Conclusion
The tribal people have paid and are still paying the biggest price for development in India. They
are subsidizing the cost of development through sacrifice of their land, traditions and cultures so
that the urban elites can enjoy comfortable lifestyle. The government needs to enliven the
various constitutional and legislative provision so that this community can live to its fullest.

Bibliography
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2:- http://www.legalservicesindia.com/article/article/tribal-laws-&-customs-in-india-847-1.html

3:- http://www.preservearticles.com/2012011320772/short-essay-on-forest-and-tribal.html

4:- http://shodhganga.inflibnet.ac.in/bitstream/10603/25843/7/07_chapter%202.pdf.