maharashtra-governor-modifies-law-on-forest-rights

Context: Maharashtra Governor has modified the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, allowing rightful claimants of forest rights to appeal against decisions of the district level committee (DLC).

More on News: 

  • A notification issued on May 18, 2020, said the Governor has modified Section 6 of the Act, in its application to the Scheduled Area of the State of Maharashtra, in exercise of the powers conferred on him by Schedule V of the Constitution.
  • The Governor’s office said the notification is important to provide justice to tribals whose ‘individual or community forest right’ has been rejected by the DLC, constituted under the Forest Rights Act (FRA).

About The Notification:

  • The notification applies to areas covered in the Panchayats (Extension to Scheduled Areas) Act in the State and allows appeal provision against the DLC’s decision.
  • The notification states that divisional level committees under the chairmanship of divisional commissioners have been constituted to hear the appeals against the DLC’s decisions.
  • In the case of an order passed by the DLC before commencement of the notification, the application for appeal needs to be made within six months from the date of issue of notification.  
    • However, if an order has been passed after commencement of the notification, the application has to be made within 90 days of the date of communication of the DLC’s order.
  • Despite a large number of applications being rejected, by DLCs, previously there was no provision in the Act for appeal against the decision.

Conclusion:

  • Activists fear that this committee will further delay implementation of FRA. Delay means denial of justice to genuine claimants and increased scope for fake claims.
  • Thus need is for the spirit of the law to be maintained which is not in the Governor’s hands rather is the responsibility of the State revenue and forests departments.

Forests Rights Act, 2006:

  • It was enacted to correct the historical injustice caused to forest-dependent communities during the colonial and post-independence period by granting them rights over forest lands where they have traditionally resided. 
  • It recognizes the rights of forest-dependent communities towards the conservation of forest biodiversity and maintenance of ecological balance while ensuring their livelihood and food security.
  • Provision of verification of forest rights under FRA, 2006
  • Section-6, FRA, 2006 provides for a 3-level verification process and grievance redressal mechanism regarding acceptance or rejection of the claims on forests.
  • Gram Sabha
    • The authority to initiate the process for determination of individual or community forest rights is vested with the Gram Sabha.
    • Gram Sabha is authorised for receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim.
    • The Gram Sabha shall, then, pass a resolution and forward a copy to the Sub-Divisional Level Committee.
  • Aggrieved party
    • Any person aggrieved with the decision of Gram Sabha can file a petition to the Sub-Divisional Level Committee.
  • The Sub-Divisional Level Committee
    • It shall examine the resolution passed by the Gram Sabha and prepare the record of forest rights and forward it through the Sub-Divisional Officer to the District Level Committee for a final decision.
  • Aggrieved party
    • Any aggrieved party with the decision of the Sub-Divisional Level Committee may file a petition to the District Level Committee within sixty days from the date of the decision of the Sub-Divisional Level Committee.
    • Any person aggrieved with the decision of Gram Sabha cannot directly file a petition with the District Level Committee.
  • District Level Committee
    • The State Government shall constitute a District Level Committee to consider and finally approve the record of forest rights prepared by the Sub-Divisional Level Committee.
    • The decision of the District Level Committee on the record of forest rights shall be final and binding. 
    • FOR MAHARASHTRA now divisional level committees under the chairmanship of divisional commissioners have been constituted to hear the appeals against the DLC’s decisions.
  • The State Government shall constitute a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights.
  • Conditions that one must satisfy to get rights
  • Well, a person to be eligible under the act for recognition of forest right must fulfil the following conditions:
    • The person must be residing in the forest for the mentioned period in the act.
    • A person or community depends upon forest and forest land for a livelihood.
    • STs must prove that they have ‘primarily resided in the forest or forest land prior to 13-12-2005’
    • Whereas, Other Traditional Forest Dwellers must prove that they have ‘primarily resided in forests or on forest lands for three generations (75 years) prior to 13-12-2005’.
    • Every forest claim must be accompanied by two documents as evidence, which could be: 
      • documents issued by the government; research studies; statement by elders; and
      • even physical evidence of possession or use of land, such as wells.

 

Fifth Schedule:

  • The Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas as well as of Scheduled Tribes residing in any State other than the States of Assam, Meghalaya, Tripura and Mizoram. 
  • Tribal habitations in the states of Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar Pradesh and Jammu & Kashmir have not been brought under the Fifth or Sixth Schedule.
  • In Article 244(1) of the Constitution, expression Scheduled Areas means such areas as the President may by order declare to be Scheduled Areas.
  • The criteria followed for declaring an area as Scheduled Area are -
    • preponderance of tribal population;
    • compactness and reasonable size of the area;
    • under-developed nature of the area; and
    • marked disparity in the economic standard of the people.
  • The Governor of each State having Scheduled Areas (SA) shall annually, or whenever so required by the President, make a report to the President regarding the administration of Scheduled Areas in that State.
  • The Union Government shall have executive powers to give directions to the States as to the administration of the Scheduled Areas. 
  • Para 4 of the Fifth Schedule provides for establishment of a Tribes Advisory Council (TAC) in any State having Scheduled Areas. 
  • If the President so directs, there will be established a TAC in a State having Scheduled tribes but not Scheduled Areas therein, consisting of not more than twenty members of whom, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State. 
  • If the number of representatives of the STs in the Legislative Assembly of the State is less than the number of seats in the TAC to be filled by such representatives, the remaining seats shall be filled by other members of those Tribes.
  • The TAC shall advise on such matters pertaining to the welfare and the advancement of the STs in the State as may be referred to them by the Governor.
  • The Governor may make rules prescribing or regulating
    • the number of members of the Council,
    • the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof
    • the conduct of its meetings and its procedure in general; and
    • all other incidental matters.
  • The Governor may, by public notification, direct that any particular Act of Parliament or of the Legislature of the State shall or shall not apply to a SA or any part thereof in the State, subject to such exceptions and modifications, as specified. 
  • The Governor may make regulations for the peace and good government of any area in the State which is for the time being a SA. 
  • Such regulations may
    • prohibit or restrict the transfer of land by or among members of the Scheduled tribes in such area;
    • regulate the allotment of land to members of the STs in such area;
    • regulate the carrying on of business as money-lender by persons who lend money to members of the STs in such areas.
  • In making such regulations, the Governor may repeal or amend any Act of Parliament or of Legislature of the State or any existing law after obtaining assent of the President.
  • No regulations shall be made unless the Governor, in case a TAC exists, consults such TAC.
  • At present, 10 States namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana have Fifth Schedule Areas. 

 

PESA 1996:

  • The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA is a law enacted by the Government of India for ensuring self governance through traditional Gram Sabhas for people living in the Scheduled Areas of India. 
  • Scheduled Areas are areas identified by the Fifth Schedule of the Constitution of India.
  • Scheduled Areas are found in ten states of India which have a predominant population of tribal communities. 
  • The Scheduled Areas were not covered by the 73rd Constitutional Amendment or Panchayati Raj Act of the Indian Constitution as provided in the Part IX of the Constitution. 
  • PESA was enacted on 24 December 1996 to extend the provisions of Part IX of the Constitution to Scheduled Areas, with certain exceptions and modifications. 
  • PESA sought to enable the Panchayats at appropriate levels and Gram Sabhas to implement a system of self-governance with respect to a number of issues such as
    • customary resources, minor forest produce, minor minerals, 
    • minor water bodies, selection of beneficiaries, sanction of projects, and 
    • control over local institutions.
  • The loss of access to forest, land, and other community resources had increased their vulnerability. 
  • Rampant land acquisition and displacement due to development projects had led to large scale distress in tribal communities living in Scheduled Areas. 

Source:

https://www.thehindu.com/news/national/other-states/maharashtra-governor-modifies-law-on-forest-rights/article31690811.ece