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The ‘hukook’ & duties of an ‘adivasi’

TreeTake is a monthly bilingual colour magazine on environment that is fully committed to serving Mother Nature with well researched, interactive and engaging articles and lots of interesting info.

The ‘hukook’ & duties of an ‘adivasi’

There has been a never-ending debate over the rights and legalities of ‘tribals’ of India, their very status, and whether they are a threat or a protection to wilderness and wildlife. However, not many really understand what the term ‘tribal’ means or who the actual tribals are...

The ‘hukook’ & duties of an ‘adivasi’

There has been a never-ending debate over the rights and legalities of tribals of India, their very status, and whether they are a threat or a protection to wilderness and wildlife. However, not many really understand what the term tribal means, who are the actual tribals or even the exact law concerning them. In this report, Himanshi Shukla clears all such doubts

The term ‘tribe’ carries different connotations in different countries. In India it refers to the group of people who have been known by various names since primitive times such as ‘vanvasi’, ‘adivasi’, ‘vanyajati’ and ‘adimjati’. A tribe is also defined as a group of indigenous people with common language, distinct customs, rites and rituals, beliefs, simple social rank and political organization and common ownership of resources. Each tribe possesses some distinct culture that differentiates it from other tribes. Tribal people in India are known as adivasis or janajatis. They comprise 8.6% of India’s population according to the 2011 census. They have a large population in Andhra Pradesh, Chhattisgarh, Gujarat, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, West Bengal, North-Eastern states and the Andaman and Nicobar Islands of India. They are known as adivasi for being the original inhabitants of India. They have been categorised as scheduled tribes (ST) by the Indian Constitution. A large tribal belt exists along with the Himalayas ranging from Jammu and Kashmir in the North to Uttarakhand and in the West and Assam, Meghalaya, Manipur and Nagaland in the North-East India. Central India is the home to about 75% of the tribal population of our country. In fact, the tribals have a presence in almost all states of the country to a greater or lesser extent. The tribals or adivasis usually live a segregated and secluded life in remote and isolated areas like hills and forests. Each tribal community generally has its own unique culture, language, and religion.

Tribal societies are generally egalitarian and they believe in and practise community ownership of land. However, the Mughal invasion of India in the early 16th century had a seriously adverse impact on the tribals. It led to a serious disruption in the concept of collective ownership of land. During British rule, the tribal communities lost their rights over the forest area that belonged to them. According to the new legislation passed by the British, the forest areas belonging to the tribals became the legal property of landlords who were appointed by them. Subsequently, the arrival of non-tribals into tribal areas forced them out of the forest and ancestral land resources they depended on for their livelihood. They were brutally exploited by the landlords whose sole purpose was to gain the maximum economic benefits out of the forest resources. As a result, the tribals led a life of misery, suffering, deprivation, and hardship. Consequently, as a reaction to the cruel oppression and subjugation, they often revolted against the British and the landlords in the 18th and early 19th centuries. However, there was hardly any improvement in their lot since the colonial rulers turned a blind eye to their problems and needs. It would be worthwhile to take a look into the present scenario with regard to the tribal population in India.

Who are the tribals as per the Constitution of India?

As per Dr Vikram Singh, former DGP of Uttar Pradesh: “In India, most of the tribes are collectively identified under Article 342 (1) and Article 342 (2) as ‘Scheduled Tribes’ and their right to self-determination is guaranteed by Part X of the Indian Constitution. Part X contains provisions with respect to the administration of scheduled areas and tribal areas. The term ‘Scheduled Tribes’ first appeared in the Constitution of India. Article 366 (25) defined Scheduled Tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution.” Article 342 prescribes the procedure to be followed in the matter of specification of scheduled tribes. Article 342 states that “the President may, with respect to any State or Union territory… and where it is a state …after consultation with the Governor thereof by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of this constitution, is deemed to be scheduled tribes in relation to that state or Union Territory, as the case may be.” Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid, a notification issued under the said clause shall not be varied by any subsequent notification.”

“Thus, the first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned. These orders can be modified subsequently only through an act of the Parliament. The above article also provides for listing of Scheduled Tribes State/Union Territory-wise and not on an all-India basis. In the Constitution, this has specific provisions with respect to the Scheduled Tribes and the role of the Governor of the state in upholding those rights. The criterion followed for the specification of a community, as Scheduled Tribes is indication of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness. This criterion is not spelled out in the Constitution but has become well-established. It subsumes the definitions contained in the 1931Census, the reports of the first Backward Classes Commission 1955, the Advisory Committee (Kalelkar), on Revision of SC/ST lists (Lokur Committee), 1965, and the Joint Committee of Parliament on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill 1967 (Chanda Committee), 1969,” he says.

What areParticularly Vulnerable Tribal Groups & how are they different from other tribals?

As per the Union Ministry of Tribal Affairs: “Tribal communities are often identified by some specific signs such as primitive traits, distinctive culture, geographical isolation, shyness to contact with the community at large and backwardness. Along with these, some tribal groups have some specific features such as dependency on hunting, gathering for food, having a pre-agriculture level of technology, zero or negative growth of population, and extremely low level of literacy. These groups are called Particularly Vulnerable Tribal Groups (PVTGs). PVTGs are more vulnerable among the tribal groups. Due to this factor, more developed and assertive tribal groups take a major chunk of the tribal development funds, because of which PVTGs need more funds directed for their development. In this context, in 1975, the Government of India initiated to identify the most vulnerable tribal groups as a separate category called PVTGs and declared 52 such groups, while in 1993 an additional 23 groups were added to the category, making it a total of 75 PVTGs out of 705 Scheduled Tribes, spread over 17 states and one Union Territory (UT), in the country (2011 census).”

The government of India follows the following criteria for identifying the Particularly Vulnerable Tribal groups:

Pre-agricultural level of technology

Low level of literacy

Economic backwardness

A declining or stagnant population.

What are the laws governing tribals & what are the forest laws that have constant interaction with the tribals?

As per Wikipedia: “Since time immemorial, the tribal communities of India have had an integral and close-knit relationship with the forests and have been dependent on the forests for livelihoods and existence. The relationship was mutually beneficial and not one-sided. However, rights were rarely recognized by the authorities and in the absence of real ownership of the land, the already marginalized local dwellers suffered. The reason for this latter phenomenon is India’s forest laws. India’s forests are governed by two main laws- the Indian Forest Act, 1927 and the Wild Life (Protection) Act, 1972. The former empowers the government to declare any area to be a reserved forest, protected forest, or village forest. The latter allows any area to be constituted as a “protected area”, namely a national park, wildlife sanctuary, tiger reserve, or community conservation area.”

Under these laws, the rights of people living in or depending on the area to be declared as a forest or protected area are to be “settled” by a “forest settlement officer”. This basically requires that officer to enquire into the claims of people to the land, minor forest produce, etc., and, in the case of claims found to be valid, to allow them to continue or to extinguish them by paying compensation.” But this isn’t a bit as simple as it sounds. If the research paper ‘Disposed and Displaced- A brief paper on tribal issues in Orissa’ by Kundan Kumar, a tribal activist from Orissa is to be believed, in Odisha, around 40% of the government forests are “deemed reserved forests” which have not been surveyed.

Pradeep Prabhu, a tribal activist from Maharashtra, states in his article ‘The right to live with dignity’: “According to the Indian Forest Act, 1927, the Government could proclaim any piece of land to be ‘forest’ by issuing a notification to this effect and declare it to be government land. For most areas in India, especially tribal areas, a record of rights did not exist hence rights could not be settled during the consolidation of forests… therefore, the rural people, especially tribals, living in the forests since time immemorial, were deprived of their traditional rights and livelihood and consequently, have become encroachers in the eyes of the law. After independence, during amalgamation of princely states, lands of ex-princely states zamindari lands were proclaimed as reserved forests, without settlement of tribal rights as the records of rights never existed for tribals. Prior to 1980, there was indiscriminate diversion of pristine forest land for non-forestry purposes, out of which most of the forest land was diverted for agricultural practices. Even this benefit of indiscriminate diversion remained in the hands of a few powerful lobbies. Tribals again were in loss as their rights were not recorded and never recognized. The Forest (Conservation) Act, 1980 paved a way for legal solutions to long-pending settlement of rights of the tribals living on the forest lands since time immemorial.”

The passage of ‘The Scheduled Tribes and Other Traditional Forest Dwellers Act’ on 18th December, 2006 was thus a watershed moment in the history of tribal rights in India. Also dubbed as the Tribal Rights Act, or Tribal Lands Act, the law concerns the rights of forest-dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India. The law provides four types of rights to the tribals-

Title rights – i.e., ownership – to land that is being farmed by tribals or forest dwellers as on 13 December 2005, subject to a maximum of four hectares; ownership is only for land that is actually being cultivated by the concerned family as on that date, meaning that no new lands are granted.

Use rights – to minor forest produce (also including ownership), to grazing areas, to pastoralist routes, etc.

Relief and development rights – to rehabilitation in case of illegal eviction or forced displacement and to basic amenities, subject to restrictions for forest protection.

Forest management rights – to protect forests and wildlife.

What are the rights and duties of the tribals with respect to forests? What do the laws and established customs provide for?

Dr Vikram Singh says: “By tradition, the tribals have a right to ‘hukook’ which means ‘haq’ or simply their right over the forest products. If you go to Uttarakhand, you will find that it is well established with the forest officials and the police department that the tribals have the right to residence without permanent construction. They have a right to the fallen products like leaves, bark, branches. They cannot chop off trees but yes whatever is the forest produce that comes out naturally- like grass or fodder, bark that falls off and also dry wood that is available- is theirs. This is known as ‘hukook’ and it is sacred and sacrosanct and accepted the world over, including the United Nations, that the empowerment of the tribals is an essential condition for conserving and preserving the forest, flora and fauna. It is now accepted worldwide that the tribals have the greatest contribution and role in forest conservation. They are the ones who are the whistle-blowers. They are the ones who dedicate themselves for the protection of flora and fauna and especially wildlife and indigenous trees. They have a major role in protecting illicit felling of trees and that is why they are the biggest enemies of encroachers, land mafia and the timber mafia. The government in its own right has enacted acts like the Forest Conservation Act 2006. The act encompasses rights of self-cultivation and habitation which are usually regarded as individual rights, and community rights such as grazing, fishing and access to water bodies in forest habitat rights for particularly vulnerable tribal groups, traditional seasonal resource access of nomadic and pastoral community, access to biodiversity, community guide to intellectual property and traditional knowledge, recognition of traditional customary rights and right to protect, we generate or conserve or manage any community forest resource for sustainable use. It also provides rights to allocation of forest land for developmental process and developmental purposes to fulfil basic infrastructure needs of the community. In conjunction with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013, the Forest Rights Act protects the tribal population from eviction without rehabilitation and settlement.”

What are the instances when laws are misused for vested interests and legal loopholes exploited?

Kaushalendra Singh, wildlife conservationist and former member of the Uttarakhand Wildlife Board and GC Mishra, ex-Dudhwa National Park Forest official, whose PIL regarding Dudhwa National Park is pending in the High Court, state: “Tribal and Traditional Forest Dwellers Right (on Forest) Act 2005 (hereinafter referred as the FRA) promulgated by the central government in 2006. This act is being misused in Uttar Pradesh, maybe deliberately or under over-enthusiasm. A few examples being- In the North Kheri Forest Division (NKFD), which was subsequently converted into Dudhwa National Park (DNP) had 36 Tharu tribal forest villages. All these villages were converted into revenue villages during 1975-78. 34 villages were in the buffer zone managed initially by the NKFD (after the creation of the DNP) was settled in situ on as-is-where-is basis. The remaining two villages fell in the core area were allotted equal land in the buffer area for the relocation. Village Mora got peacefully settled in the area allotted whereas Surma preferred to go in for a writ petition in High Court against relocation. After a protracted litigation the petitioners lost the writ in 2003, and they were order to ship to the allotted sites within three months of the date of the order, being assisted by the district authorities. The district authorities flouted the court’s order and did not comply with the same. In 2007 the Government of India started pressing on the implementation of the Forest Rights act. Although Surma did not qualify for that but the district authorities showed over enthusiasm and declared Surma as a revenue village in situ. There is no local level empowered committee constituted as required under the act. Confusion and misunderstanding prevail among their use as well as the local forest staff regarding the implementation of the act. Tharus now consider it is free-for-all and, as and when they desire, they resort to illicit felling in the core area of the DNP. Forest officials remain helpless as the villagers come in morgue and former don’t get any assistance from the police and revenue authorities, perhaps due to a fear of violation of the Forest Rights Act. None of the Tharu villages qualify for treatment under the FRA as they already settled as revenue villages much before the enactment of FRA. A new village by the name of Golbohji has cropped up, which never existed in the first place. This village, as per information gathered, is found by the encroachers, a majority of them are the plantation and nursery labourers of the erstwhile Kheri plantation division. This division was wound up after creation of DNP when all the forestry corporations came to stand still.”

The principal opposition to The Scheduled Tribes and Other Traditional Forest Dwellers Act stemmed from the fact that it was perceived as a land distribution scheme. In this backdrop, an NGO Vanashakti was formed in Maharashtra which vehemently opposed the Act. Stalin Dayanand, Director of Vanashakti, states: “The moment we opposed the law, accusations were hurled against us about being ‘Anti-tribal’; but what we were really projecting was being pro-wildlife. The law has effectively ensured that lakhs of acres of forest land was distributed at the rate of four hectares per family to compensate for the ‘historical injustice’ to the tribals. The sarpanch (or head) of the village panchayat is the authority over us but he hasn’t been the resident of the tribe in that particular village/area for generations and is just a satellite imagery. There was a deadline of 2010 for closing applications which was not adhered to at all and the distribution still continues to this day. A provision in the law applies to national parks and wildlife sanctuaries a well, but with the condition that the critical wildlife habitat be demarcated properly and exempted. This hasn’t been done till date. Not one acre has been demarcated as ‘critical wildlife area’ and neither have the exclusive zones for animals being demarcated. What’s more, this forest is being cut down by the tribals themselves because if they don’t then someone else will. The land is being diverted for agriculture. In some areas, investors have started to pour in to commercialise the agriculture. Even the tiger reserves are reportedly being used for agricultural practices. This is why we often hear news of tiger poisoning by tribals because in the absence of clear demarcation of wildlife land, man-animal conflict is bound to happen. Peaceful coexistence of humans and animals isn’t really a thing. There are boundaries and spheres for both categories which must be adhered to.”

“The then government and the subsequent government should realise that the land which they distributed wasn’t theirs to give. Philanthropy- an endless pursuit at that cannot continue forever and that too at the cost of future generations. This is because forests are the most precious of all natural resources. They are the greatest reservoir of carbon sink and our greatest weapon in fight against climate change. Not only this, they are mother of all rivers. So, if there is any change that adversely impacts the forests, it is bound to have an adverse effect on the rivers as well. Next, we know, there'll be other ripple effects such as water shortage and crisis, change in flora and fauna and even extinction and the overall ecology of the place which are already being felt, but we aren't heeding any signs. The Yaval sanctuary in Jalgaon district of Maharashtra, has lost up to 1700 hectares of land-to-land mafias and the result is that the Great Indian Bustards over there have been reduced to zero. Yet, unfortunately this is only the tip of the iceberg,” he adds.

On the question of who will ensure that tribals aren’t evicted from the land that they’ve been living on from centuries, Stalin D states: “There should be no question of ownership but of possession. Their presence is recorded on every forest department and revenue department records. Let them live where they are without expanding their footprints. Or move them to the fringes where they can collect forest produce in the day and stay safe at night.” On the question of what he thinks could be the best way forward, Stalin suggests: “There should be complete freeze over cutting of trees to ensure the 22 percent forest cover that we have- remains (and even increases). The entire argument is lopsided as conservation practices aren’t being balanced with needs of forests. The act, though well intended, has failed to deliver its promises and its implementation is all the more challenging for forest officials. Instead, the government should adopt joint forestry management with the tribal people. The best approach is to leave them undisturbed because most tribals really are for sustainable agriculture and living within the forest.”

The flip side: What challenges do the tribals face?

As per Shashi Bhatia, social anthropologist: “Acute poverty is the main stumbling block in the path of progress and prosperity of the tribals.  The government of India has come up with various poverty alleviation programmes and welfare schemes from time to time.  However, these efforts have not yielded the desired results in an adequate and satisfactory manner.  As poverty and malnutrition go together, the tribals tend to suffer from various diseases which leads to poor physical growth and loss of productivity.  As a result of ill health, the death rate among the tribals is quite high. Though the poverty rate has declined, from 63.7 per cent in 1993-94 to 43.0 per cent in 2011-12 (Ministry of Tribal affairs), the decline is neither steep nor satisfactory. Unfortunately, poverty and illiteracy complement each other to a large extent. Education is a vital ingredient for success and progress in the modern world. However, it is out of reach for many tribals in India.  Despite government efforts to promote education, the literacy rate among Scheduled Tribes remains low as compared to the national average.  According to the 2011 census, Scheduled Tribes have a literacy rate of 59% only.  A number of factors are responsible for this sad state of affairs. Poverty, lack of resources, lack of transport facilities, lack of awareness, old mindset, availability of traditional experience and knowledge, lack of motivation etc are some of the major reasons for the educational backwardness of the tribals.  Formal education has made very little impact on tribal groups since it is not considered necessary to discharge their social obligations. Superstitions, blind beliefs, myths and phobias play an important role in their apathy towards education.”

Naxalism is yet another problem the tribal community has to face first hand. Naxalism has raised its ugly head in India since long.  It has played havoc with the tribal life of our country.  The tribals are caught between a rock and a hard place as they have to deal with the police authority on the one hand and Naxalites on the other.  They have often been harassed, tortured, exploited and intimidated by the Naxalites as well as the police which makes their life extremely miserable and pitiable.  Over the last few decades, a large number of innocent tribals have been threatened, brutalized and killed by the Naxalites for their selfish ends.  This has led to a lot of mental disturbance, confusion and psychological disorientation among the tribals. Thus, the rise of the Naxalite and Maoist movements has been highly detrimental to tribal welfare and progress in India.

Land acquisition for ‘developmental’ projects has been met with vehement opposition from tribal activists because often the loss far outweighs the compensation the government has to offer. Thus, the projects like Bullet Train project (Ahmedabad to Mumbai) and Aarey Forest destruction was recently opposed by tribals and, what is more important, the students and other people joined their cause. Likewise, there are other instances like the Ken Betwa River Interlinking project, etc. And who can forget the Narmada Bachao Andolan by Medha Patkar. “Apart from this, tribal population in India has suffered a lot due to highly inefficient, incompetent and corrupt administration in different parts of the country.  The Government of India has initiated many laudable schemes and welfare programmes for the uplift and development of the tribal people. However, the fruits of these programmes do not reach the intended beneficiaries due to rampant corruption, mismanagement, faulty implementation, and poor governance. Therefore, the condition of the tribals in India has not undergone any significant improvement over the years. Thereupon, I would suggest a more bottom-up approach to link tribals to the mainstream, thus ensuring their adequate development. The only way out is consistent efforts moving only in the forward direction,” she adds.

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