The Forests and the Forest dwellers

The Forests and the Forest dwellers   “If you cut down a forest, it doesn’t matter how many sawmills you have, if you have no trees.” – Susan George Reverence to nature can be traced back to the Indus Valley Civilization which culminated in the early Vedic period and is eventually witnessing global warming and climate change. To say that we have forgotten how important forests are would be wrong but stating that development at the cost of forests to satisfy the material aspect of life would rather invite annihilation of human civilizations. To begin with, India has enjoyed abundance of green cover which required less or rather no disputes, special rights or any dispute settlement. This self-sufficient status was tremendously modified in the colonial era which, in the garb of Pax Britannica, deteriorated, manipulated and marginalized the forests and interests of the forest dwellers. They enacted the Forest Rights Act of 1927 to divert abundant forest wealth to meet their economic objectives. Our legal architecture which governs forests, forest dwellers and forest rights is complex and rather vaguely defined. Background Despite the law being draconian, various authorities misuse the legislation causing severe hardships to people. The forest department continues to use forest and wildlife offences to chew out or discriminate in the interests of forest-dwelling communities, whose members are often charged with the unauthorized use of forest resources under the Indian Forest Act of 1927 (IFA) and the Wildlife Protection Act of 1972 (WLPA). However, the symbiotic relationship between the forest dwelling communities and the forests found its recognition first in the National Forest Policy of 1988 and further strengthened by the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The policy and the legislation are aimed at protection, regeneration and development of forests. The latter however, was enacted to protect the marginalized socio-economic class of citizens and balance the right to environment with their right to life and livelihood. Current Controversy The Supreme Court on February 13, 2019 ordered eviction of lakhs of persons belonging to the Scheduled Tribes and Other Traditional Forest Dwellers (OTFDs) categories across 16 States, whose claim as forest-dwellers has been rejected under the Forest Rights Act. A Bench of Justices Arun Mishra, Navin Sinha and Indira Banerjee ordered the Chief Secretaries of many of these States to evict those whose claims were finally rejected. The Court directed that the eviction be carried out by July 24, 2019. The Court also cautioned the States that if the evictions were not carried out within the stipulated time, “the matter would be viewed seriously.” The order dated 13 February has however been questioned on the fact of what due process of law was adopted while rejecting the claims of such stakeholders. Being poor and illiterate, living in remote areas, these people are unaware of the appropriate procedure for filing claims. The Gram Sabhas, which initiate the verification of their claims, are themselves low on awareness of how to deal with them. This made it important for the court to rather re-visit its order dated 13 Feb. On February 28, the Court stayed its order though it said “the mighty and the undeserving” who have encroached on forest land would be shown no mercy. It has decided to examine whether due process was followed by the Gram Sabhas and the States under the Forest Rights Act before the claims were rejected. Problems with the legal construction of the statute - 1.Checking upon the powers of the Forest Authorities- The law confers upon the forest authorities unrestricted powers in order to control and monitor the use of forest resources by charging them for offences. They have been given the powers to arrest which has been often found to be misused for reasons known yet unheard of. This power to charge a forest and wildlife offence is part of an ideology of conservation where forest areas are to remain devoid of human interference. In the largely human-dominated forests of India, Adivasi communities that live in them continue to depend on forests for their livelihoods. Such an exclusionary model of conservation can only function by denying these communities their right to their lands and resources. The Forest Rights Act is rather aimed to challenge this exclusionary model of conservation by giving forest-dwelling communities the right to manage and conserve their areas. 2. Pendency of suits and disputes- If going by the figures provided by the National Crime Records Bureau, nearly 67.2% of inmates across the country are under trial and are awaiting a verdict. Given the inertia of India’s criminal justice system, Adivasi communities, which are seldom able to afford legal counsel, are forced to rely on the state’s legal services authorities for legal aid. These circumstances, when read with the discretionary-arbitrarily applied power of arrest, question the basics of the justice delivery system and the system of criminal trials. 3.Lack of government and governance- It is beyond denial that one wouldn’t know the indifferent, lethargic and uncommon government’s attitude towards the pain and plight of the forest dwellers. This is also evident in the government’s recent rejection of claims of several persons with regard to their rights of dwelling in the forests. Mere formulation of policy or an enactment of statute has been never complimented with any follow up plans, re-enforcements and resource services. 4.Anthropogenic impacts i.e. Development and rapid Urbanization- The fast pacing development and construction at various locations has jeopardized the interests of various communities living in the forests. This is not alone detrimental to their interests but also the wildlife living there. This makes the need of sustainable growth, development and expansion a necessary evil in relation to how encroached there lands already are. 5.Tourism and Activities- The rise in tourism in areas having vested forests rights has been found to be one with various conflicting parties. The tribal are found hostile to any foreign invasions as was also seen in the case of Sentinelese of Andaman having attacked a foreigner. Hence, it puts forward the need to balance tourism with their extent of invasions into lands restricted for use by tribal groups. Balanced view There exists difference between development and sustainable development. The former is uni-dimensional while the latter is all-encompassing. There exists a need to protect the downtrodden, marginalized and the depressed while balancing their needs with a compromise on someone’s greed. In pursuit of erecting infrastructure, earning profits and creating jobs, one must abstain from butchering the livelihoods, survival and needs of others. The controversy above mentioned is one of a similar nature dwindling between two ends diverging into satisfaction, discretely. At the same time, it is argued that it is highly risky to live in an environment where the wild animals are growing hostile and aggressive towards human bodies. Animal rights are a fairly well-known concept. Animal rights, including the rights of captive and domestic animals, are occupied with the rights of individual animals. Wild animals require a different set of rights, for example, the rights to forage, take refuge and disperse. Wild animals are feraenaturea – free by nature. A Supreme Court judgement in 2013 had held that wild animals are not the property of the state. Conservationists will contend that at least in sanctuaries, wild animals should be allowed to be free. This provides for a safe rehabilitation, not instant but gradual. This needs a more long-term based approach, understanding and communication which currently are unfortunately found nowhere. National Commission for Backward Classes – Ensuring Equity or Imbalance? -Aayushman Shukla An egalitarian society is a utopia; one based on the ideal of equality. Arti- cle 14 of the Constitution guarantees equality before the law. That means un-equals cannot be treated equally. Measures are required to be taken for the upliftment of the unequaled to bring them at par with the advanced classes. In view of this, the National Commission for Backward Classes (NCBC) proposed the sub-categorisation of Other Backward Classes (OBCs) back in 2015. In October 2017, President Ram Nath Kovind, in exercise of the powers conferred by Article 340 of the Constitution, appointed a commission to examine the issue of sub-categorisation of OBCs, chaired by retired Justice G. Rohini, to ensure social justice in an efficient manner by prioritising the Extremely Backward Classes (EBCs). The First Backward Class Commission was set up under the chairmanship of Kaka Kalelkar in January 1953. The Commission had submitted its report in 1955, classifying 2,399 backward communities, with 837 of them classified as ‘most backwards’. However, the report was never implemented. The Constitution (One Hundred and Second Amendment) Act, 2018 received the assent of the President. This Amendment is about giving “constitutional status” to National Commission on Backward Classes. The proposed commission will have a Chairperson, Vice-chairperson and 3 other members and hear the grievances of socially and educationally backward classes, a function discharged so far by the Scheduled Castes Commission. In order to safeguard the interests of the socially and educationally backward classes more effectively it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes. The National Commission for Backward Classes (Repeal) Act, 2018, has also been notified to repeal the existing National Commission for Backward Classes (NCBC) Act, 1993. The members that a provision will be made in the rules to include one woman member in the Commission. The powers of the States in respect of OBCs Commission will in no way be curtailed. Giving constitutional status to the OBC Commission will empower it to hear grievances and their redressal. The present Commission lacked powers on these fronts. It shall be the duty of the Commission- (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b)To inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) To participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; (d)To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports the recommendations regarding the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the socially and educationally backward classes; and (f)To discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify. But, the present move by the government to sub-categorise the OBCs would affect the socially and educationally advanced communities within the backward classes who have gained from the policy of positive discrimination over the past four decades. So far, nine states, namely Andhra Pradesh, Telangana, Puducherry, Karnataka, Haryana, Jharkhand, West Bengal, Maharashtra, Bihar and Tamil Nadu, have carried out sub-categorisation of OBCs. The OBC community feels that 27% reservation is inadequate compared to its population, which the Mandal Commission had put at 52%, extrapolating from the 1931 colonial census. The lack of credible data is the overriding challenge this commission faces. And the only reputable nationwide data on caste comes from the 1931 colonial census. Thus, if implemented, this step would surely prioritise the Extremely Backward Classes (EBCs) and wouldalso adhere to the principles of social justice. But, in ensuring equity an unforeseen imbalance must not be implanted in the society. Securing development through autonomy -Varsha Tomar The greatest dilemmas of life are often solved by balancing two diametri- cally opposed sides. In this sense, the epitome of balancing is shown by the Autonomous District Councils which protect the traditional customs and identity with development of tribal areas. Each tribal community carries forward their own traditional set of laws and customs. Hence, their needs cannot be catered to through any one system of governance. Their complexities and vulnerabilities necessitate the presence of such councils. Background The tribal communities had been demanding autonomous administration since the time of British. In 1929, the Nagas had petitioned to the Simon Commission for autonomy from the Indian state while the Khasis, Garos, Mizos and Karbis had demanded separation from Assam itself for self-governance. Therefore, after independence, the North East Frontier, Tribal and Excluded area Sub-Committee of the Advisory Committee to the Constituent Assembly of India, headed by Gopinath Bardoloi, had recommended setting up of District Autonomous Councils. This was incorporated into the Sixth Schedule [Article 244(2) and Art 275(1)] of the Indian Constitution which grants self-governing powers to the Councils of Assam, Meghalaya, Mizoram and Tripura to ensure smooth functioning through democratic decentralisation. Constitutional Provisions The Constituent bestows the Autonomous District Councils with legislative, executive and judicial powers for effective and seamless administration of Tribal regions. Such as: 1.The District Council for an Autonomous district has the power to make laws with respect to management of any forest (except reserved forest), matters of village/town administration including public heath, inheritance of property, marriage and divorce, etc. 2. The Councils have judicial powers for trial of offences committed by STs. There is a two-tier system for judicial administration at the district and village levels. Here, the District Court acts as the court of appeal. 3. District Council may establish or manage primary schools, dispensaries, cattle pounds, road and transport, waterways, etc. or make regulations for their control with the approval of the Governor. 4. The Governor makes rules for the management, payment, withdrawal or custody of money in the District Funds. 5. The District Council has the power to assess and collect revenue from the lands within the district. Besides these, the Governor has the power to divide an area into Autonomous regions for different scheduled tribes. Each Autonomous district is to have a District Council of not more than thirty members, with four members nominated by Governor and the rest elected. Proposed Amendments The Union Cabinet has recently approved amendment to Article 280 and the Sixth Schedule to the Constitution. These are measures to devolve more administrative powers to the Autonomous Councils of Assam, Meghalaya, Mizoram and Tripura, besides extending more financial relief to the Councils. 1. The Finance Commission, constituted by the Union, will now be mandated to recommend devolution of financial resources to the 10 Autonomous District Councils as well as the village and municipal councils in the Sixth Schedule areas. 2. It provides for constitution of State Finance Commissions in the states of Assam, Meghalaya, Mizoram and Tripura. 3.The amendment also provides for transfer of additional 30 subjects, including public works department, forests, public health engineering, health and family welfare, urban development and food and civil supply, to Karbi Anglong Autonomous Territorial Council and Dima Hasao Autonomous Territorial Council in Assam. 4. There will be reservations of at least one-third of seats for women in the village and municipal councils in the Sixth Schedule areas of Assam, Mizoram and Tripura and at least two of the nominated members in all autonomous councils in the Northeast Sixth Schedule areas. 5.The State Election Commissions has been given mandate for holding elections to the Autonomous Councils, village and municipal councils in the areas of Assam, Mizoram and Tripura.   Meanwhile, Meghalaya has, for the time being, kept out of the purview of the provision for elected village and municipal councils and one-third reservations for women. Possible Implications Setting up Autonomous District Councils is crucial to promote social, cultural and political autonomy to the people in tribal areas of specified states. It is an efficacious tool of governance having immense potential to protect and safeguard the cultural identities of diverse groups and communities. Autonomy allows the development policies to be shaped in accordance with the dynamic needs of the tribal communities’ culture and lifestyle. The above mentioned proposed amendments are bound to positively impact the functioning of these Councils as: 1. It will substantially enhance the availability of funds with these local government institutions for undertaking speedy development works in these tribal areas. 2. These will empower the village council for preparation of plans for economic development and social justice, including those in relation to agriculture and land improvement. 3. The reservation for women is bound to make it more gender equal and expand its scope of representation and empowerment. 4. Transferring additional subjects further enhances their importance in the lives of the tribal population. Expanding executive functioning goes hand in hand with more fiscal autonomy. 5. Reduced dependency on the state government will leave little scope of disputes with political parties and it would also avoid duplication, wastage and misutilisation of funds by the Autonomous Councils. 6. A more holistic perspective would be possible in administering the councils due to more representation. This will ensure no tribal community is left unattended. Suggestions The Ministry of Panchayati Raj 2006 report had stated that there exist a huge gap between the approved budget and the funds received from the State Government which has a direct impact on the execution of the functions and plans. Therefore, 1. There must be a proper third party reviewing body to ensure transparency of functions and avoids possibility of corruption and fund leakages. 2. More cooperation among institutions is to be promoted instead of competition 3. Clarity of role of the Autonomous Councils and well-demarcated scope of power provides for accountability. For this, a constant feedback and reviewing mechanism has to be kept in place. 4. Leaving the tribal groups in their own state only would deepen the divide between the mainstream and the tribals. Thus, their gradual integration into the mainstream keeping in mind their own needs and desires is essential. Balanced View The main goal behind the Sixth Schedule was protection and preservation of the cultural identity of the communities, but often the focus shifts towards a competing feeling among councils of higher autonomy, power, financial assistance, etc. which benefits only a small group of elites while excluding the major section. However, if proper checks and balance mechanism is established, the proposed amendments would be a game changer in enhancing the scope of Sixth Schedule as per the changing mechanisms and demands of the local communities. To protect the rich heritage of North-east India, improved awareness and active participation of the other stakeholders is imperative. The hallmark of welfare democracy is seen through such provisions which allow for development without the loss of identity. Curbing ponzi schemes Banning of Unregulated Deposit Schemes Ordinance 2019 President Ram Nath Kovind has promulgated the Banning of Unregulated Deposit Schemes Ordinance. It bars all deposit schemes in the country that are not officially registered with the government from either seeking or accepting deposits from customers. The Lok Sabha had passed the Banning of Unregulated Deposit Scheme Bill, 2018 but it could not get an approval from the Rajya Sabha. The government decided to issue an ordinance to implement the provisions of the proposed legislation. The legislation contains a substantive banning clause which bans deposit takers from promoting, operating, issuing advertisements or accepting deposits in any unregulated deposit scheme. The ordinance has issued by the government to ban unregulated deposit schemes does not stop any entity from seeking funds for its business or an individual raising a quick loan from relatives to tide over a crisis. At the same time, the Banning of Unregulated Deposit Schemes Ordinance, 2019 does not ban small and medium enterprises (SMEs) from receiving loans in the course of, or for the purpose of, business, the government has clarified. In this respect the Finance ministry, there is no ban on any amount received in the course of, or for the purpose of, business, citing Section 2(4)(I) of the ordinance promulgated last week by the President. The ordinance will also not have retrospective effect. Why ordinance was introduced? 1. The Central Bureau of Investigation had lodged about 166 cases in the past four years related to chit funds and multi-crore scams, with the highest numbers in West Bengal and Odisha. The Saradha chit fund scam in West Bengal is just one example of such a heinous financial crime against depositors. 2. As per information provided by the Reserve Bank of India, between July 2014 and May 2018, 978 cases of unauthorised schemes were discussed in state-level coordination committee (SLCC) meetings in various states and union territories, and were forwarded to the respective regulators or law enforcement agencies in the states. Exempted from the ordinance: 1. The government said individuals borrowing or taking loans or money from relatives or friends for marriage or medical emergency or business needs or any other personal reasons have nothing to fear from the law. Such transactions are not unregulated deposit schemes as defined in section 2(17). 2. An amount received by an individual by way of a loan from his relatives has been entirely exempted under section 2(4)(f). There is no ban on any individual taking a quick loan to tide over a crisis from relatives as prescribed under Section 2(4)(f). 3. Small businesses, proprietorship, partnerships, LLPs and SMEs that take unsecured loans from unrelated parties and enterprises are also exempt under Section 2(4)(I) of the law. 4. In the case of real estate, there were apprehensions that the sector may be hit as deposit can only be accepted for a designated transaction and can be adjusted against future sale consideration. The government has clarified that such transactions are exempted under Section 2(4)(g) and (l). 5. Chit fund is regulated by Chit Fund Act, 1982 and is treated as Regulated Deposit as per Schedule 1 of Banning of Unregulated Deposit Ordinance, 2019. 6. According to the Ordinance, the amounts received by way of contributions towards the capital by partners of any partnership firm or a limited liability partnership are exempt. The ordinance covers: 1. The ordinance proposes to create three different types of offences - running of unregulated deposit schemes, fraudulent default in regulated deposit schemes and wrongful inducement in relation to unregulated deposit schemes. 2. It provides for attachment of properties or assets and subsequent realisation of assets for repayment to depositors. Clear-cut time frames have been provided for attachment of property and restitution to depositors. The Ordinance also provides for severe punishment ranging from 1 year to 10 years and pecuniary fines ranging from Rs 2 lakh to Rs 50 crore to act as deterrent. It also has adequate provisions for disgorgement or repayment of deposits in cases where such schemes nonetheless manage to raise deposits illegally. 3. It also enables creation of an online central database for collection and sharing of information on deposit-taking activities in the country. 4. . It also enables creation of an online central database for collection and sharing of information on deposit-taking activities in the country. It allows the central government to designate an authority to create, maintain and operate an online database for information on deposit takers. This authority can ask any regulator or competent authority to share information on deposit takers. Further, all deposit takers will have to inform the database authority about their respective businesses. Limitations: 1. A number of legal experts who said that the law, while well-intentioned, may have unintended consequences. Thus in case of loans taken by individuals, sections 2(4)(f) only exempts loans from relatives or amount received by a firm from relatives of partners. There is no explicit exemption for loans from non-relatives including friends. 2. A businessman cannot take a loan for business purposes. It merely says borrowing from an acquaintance to meet personal obligations will be hurt. 3. With regard to charitable trusts, it doesn't say that donations received by such trusts are unregulated deposits. Instead it says that loans given by a trust to a student or ailing person could be construed as unregulated deposit. 4. As far as real estate is concerned, the exemption does not include any advance with a refund provision. Thus a home buyer, after giving an advance to a builder, may not be able to claim refund if the builder fails to deliver. 5. The ability to augment resources for meeting personal and social commitments, (or) medical and educational urgencies will dry up as no amount can be borrowed from persons other than relatives as defined under the Companies Act. The definition is restricted to only immediate family members. Balanced view: There is an urgent need to protect the savings of low-income Indian households. They are highly vulnerable to exploitation and ponzi and pyramid schemes. The ordinance would be definitely helpful in the creation of a central repository of all deposit schemes under operation. In this way, it would be easier for the Centre to regulate their activities and prevent fraud from being committed against ordinary people. besides that the ordinance also allows for compensation to be offered to victims through the liquidation of the assets of those offering illegal deposit schemes. The deposit schemes and chit funds are important instruments of saving for people in the unorganised sector. Considering the growing role deposit schemes such as chit funds and gold schemes, which as part of the huge shadow banking system, the government must needed to bring these deposits under its purview. In the absence of proper financial literacy, India urgently needed such laws. But these laws must be accountable at the implementation level.