Former civil servant offers a solution to protect ST’s and FRA, here’s what he suggests

Published on: March 1, 2019

A Former Secretary to Government of India, Ministry of Welfare and retired IAS officer P.S Krishnan wrote letters to Minister of Tribal Affairs Jual Oram, PM Narendra Modi and BJP President Amit Shah on the need for a comprehensive ordinance before the election code of conduct Comes sets in so as to stay the evictions and offer a comprehensive solution regarding ST Rights under Forest Rights Act.


PS krishnan
P.S. Krishnan
 
A Former Secretary to Government of India, Ministry of Welfare and retired IAS officer P.S Krishnan wrote letters to Minister of Tribal Affairs Jual Oram, PM Narendra Modi and BJP President Amit Shah to heed to his suggestions for the ongoing battle against the hard-fought Forest Rights Act and the future of India’s forest dwelling tribes.
 
He stressed on the need for a comprehensive ordinance before the election code of conduct Comes sets in so as to stay the evictions and offer a comprehensive solution regarding ST rights under Forest Rights Act.
 
Suggesting a detailed ordinance, the former civil servant offered solutions in his letter and gave examples of the nation-wide struggle that has engulfed the country in the last few years.
 
“Akhil Bharatiya Vanvasi Kalyan Ashram (ABVKA), which has been working since decades among STs, has also, in its Resolution adopted in its Kendriya Karyakari Mandal meeting at Satna on February 24, 2019, demanded that the Central Government should intervene in this matter through either an Ordinance or a Review Petition. Review Petitions, in any case, will be filed by the State Governments as advised by the Central Party leaders.  The other step of Ordinance, which I have suggested and the ABVKA also demanded, remains,” he wrote in his letter to Oram.
 
“The decision of tribal organizations to call a Bharat Bandh on March 5, 2019, which will be called off only if the Centre brings an Ordinance before March 5, 2019. It is in the interest of the Government and in the interest of building up confidence in the system of democratic governance that the Ordinance is issued without the Bandh being necessary and before the Bandh takes place. The consequence of such Bandhs will not be pleasant,” he said suggesting an urgent legislative route.
 
“You may kindly recall the Bharat Bandh of SC organizations on April 2, 2018, demanding legislation to negate the dilution of the SC and ST (Prevention of Atrocities) Act, resulting from another Supreme Court judgment of 20.3.2018 in the Dr Subhash Kashinath Mahajan case. In that case, the Government did file a Review Petition and subsequently brought in the SC and ST (Prevention of Atrocities) Amendment Act 2018.  If the intention of the Government at that time had been publicized well before the Bandh of April 2, 2018, that Bandh and the killings of a number of persons of SCs, especially in Madhya Pradesh and Rajasthan, which created general resentment among them, could have been avoided.  With that precedent, I would suggest for your kind consideration that an Ordinance is issued urgently and the intention to do so may be announced immediately by you,” he wrote.
 
Offering a detailed overview for an ordinance, he wrote a comprehensive letter with solutions to Modi and Shah on Feb 25 and 27.
 
The retired IAS officer has worked on obtaining social justice for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and Educationally Backward Classes (SEdBCs), for the last seven decades.
 
He congratulated the leaders for advising BJP-ruled states to file Review Petitions on the Supreme Court order of 13 February 2019. But it was not without pointing out the inherent flaws of this advice. “Review Petitions virtually never lead to positive results. During the pendency of the Review Petition, which may take an unpredictably long time, the Damocles’ Sword of eviction will continue to hang over the heads of the STs, producing uncertainty, panic and resentment, reversing the limited gains achieved by Governments against extremist violence,” he wrote.
 
He wrote that what is required is decisive action, which will at one stroke resolve the problem. “This has to be through the legislative route. Since now there will not be any session of the 16th Lok Sabha, an effective Ordinance is the only satisfactory course available,” he said.
 
He proposed that the ordinance must include features like staying of eviction of STs among others.
 
He suggested ordering a review of all cases of rejection of the claims of the STs by a Committee in every state, headed by the Chief Minister, concerned Ministers and Secretaries and knowledgeable persons sincerely and constructively working for the legitimate rights of the STs, assisted by experts with the understanding and appreciation of the tribal situation and tribal rights, to review all rejections, giving real and due opportunity to tribal people, which was not done in many cases by the Divisional and District-level Committees, and to give remedial directions wherever necessary.
 
He said that the burden of proof should fall on people who oppose the ST’s claims. “Provision of an express presumption that members of the STs who are found, now or recently, to be cultivating or otherwise securing any benefit from the forests and other claims, must have been doing so since a long time, unless the contrary is provided, the burden of proving the contrary being cast on those who oppose their claims,” he wrote.
 
This presumption is embedded in the FRA read with its Preamble. Forests are the natural habitats of STs. It was the rapacious colonial Government that created a dichotomy between forests and tribes so that the colonial Government could exploit the forests and augment Governments’ income. This colonial distortion was continued by independent India’s Governments till recently. The presumption mentioned here is not only embedded in the Act but is the natural conclusion to be arrived from the fact that the STs have been residing in and near forests, he wrote.
 
He suggested that since this presumption was not drawn in the proceedings of the Committees, it has to be now to be laid down in express terms.
 
“There is a misconception that recognition of tribal rights will damage forests. This is untrue. It is only where tribals live that forests have survived. It is forests in non-tribal areas which have been destroyed and depleted. The concern for environmental balance is legitimate.  This and the tribal rights should be harmonized. This can be achieved by organising ST’s, who are given individual or community pattas or documents recognizing their rights, with their informed consent to grow trees in these lands as required as required for environmental protection. The usufruct from such trees should go to the STs,” he advised.
 
“Since growing trees is a long-term process, taking years, in the interim period, till the usufruct of the trees becomes available for the tribal people, livelihood support should be provided to STs through the MGNREGA and other means,” he added.
 
There is only a narrow window of time available for issuing the Ordinance, before the Election Code of Conduct comes into force and he urged all the parties to find common ground and decide in the favour of tribals and their future.


Background:
The Forest Rights Act, which was passed during the Congress-led United Progressive Alliance’s first tenure, requires the government to hand back traditional forestlands to tribals and other forest-dwellers against laid down criteria.
 
The Act is intended to provide a framework to “recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded.”
 
The Act, passed in 2006, has seen opposition from within ranks of forest officials as well as some wildlife groups and naturalists who believed that FRA was against the Constitution and would cause widescale deforestation and encourage squatters.
 
There are over 100 million people who make up India’s tribal population, 4 million of which reside in protected forest areas made up 500 wildlife sanctuaries and 90 national parks. The FRA gave them and other forest dwellers living on forest land before December 2005, the legal right to live and work on the land for three generations.

The Union Government failed to present its lawyers in defence of the Forest Rights Act on February 13, leading a three-judge bench of Arun Mishra, Navin Sinha and Indira Banerjee to pass orders giving states till July 27 to evict tribals whose claims had been rejected and submit a report on it to the Supreme Court. The written order was released on February 20, 2019.


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