Schedule V areas
Rights over MFP still a far cry
Nabaghana Ojha
Previously published in: Community Forestry, Volume 3, Issue 3, February 2004, p.4-7
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Background
Policy regulating MFP in states having Scheduled V Area
Issues
The way ahead
References
Forest provides invaluable income to millions of tribal people and forest dwellers and, thereby, plays an important role in their life support system. They depend on it for food, fodder, medicines, entertainment and also for their cultural practices. Despite forest being an integral part of their life support system, the state has left no stone unturned to gain and perpetuate control over it. As a result of this, this precious natural resource no more remains the resource of nature and has become the property of the state instead. The forest-dependent communities, based on their needs, have evolved different management practices for exploitation and consumption of different forest produces.
But the scientific forest management initiated by the state ignored these practices. The government's move started the process of alienation of the forest dwellers, paving the way for the entry of external elements into the tribal area, who gradually established complete control over the resource management system. Commercial exploitation of different minor forest produces (MFP) was introduced. Private traders/businessmen and government agencies started purchasing forest produces from the tribals and selling them to industry and other buyers at a hefty premium, initiating the process of tribal exploitation.
When the exploitation touched the limits of their endurance, tribal communities in many places organised themselves for a long and hard struggle to get social justice. In a number of instances, they revolted against the exploiters and the state. At some places, determined efforts were made by the tribal communities to regain their traditional control over natural resources, including forests, in their area. The state also took a number of steps to check the exploitation in tribal areas, provide livelihood security to the forest dwellers and restore traditional governance in these areas.
The 73rd Constitutional Amendment Act, which came into force on 24th April,1993, is a significant milestone in local self-governance. The Act conferrred constitutional status to Panchayats and introduced a three-tier panchayati raj system. The Act, however, could not be extended to Scheduled Areas, as local self-governance in tribal areas has to be in consonance with tribal needs, customs, traditions etc. as per the Constitution. To examine issues arising out of the extension of Part IX of the Constitution to Scheduled Areas, the government of India appointed a committee of parliamentarians and experts under the chairmanship of Dileep Singh Bhuria in June, 1994. Based on the recommendations of the committee, the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA) was enacted. This act (hereafter referred to as PESA) has extended the Central Act (73rd Constitution Amendment Act, 1992) to Scheduled Areas mentioned under clause (1) of Article 244 of the Constitution. All states which had Scheduled Areas within their geographical boundaries were mandated to amend their existing panchayati raj acts, incorporating the provisions of PESA within a year, i.e. by 24th December, 1997.
The basic provisions of the PESA were aimed at facilitating participatory democracy in tribal areas by empowering the Gram Sabha to manage and control its own resources. The Gram Sabhas were given special functional powers and responsibilities to ensure effective participation of tribal communities in their own development in harmony with their culture so as to preserve/conserve their traditional rights over natural resources. The Act restored primary control over natural resources including land, water, forest and minerals and bestowed ownership rights over minor forest produces to the Gram Sabha.
MP [Madhya Pradesh] was one of the first states to effect changes in its MFP policy in response to PESA. The MP Panchayat Raj Adhiniyam, 1993 was amended in December, 1997 to incorporate a separate chapter (XIV - A) for the Scheduled Areas and the Panchayat Raj Act of MP was amended in 2001. However, neither of the two amendments mentioned anything about ownership of Gram Sabha over MFP. The government, in May, 1998, issued a circular regarding the definition and management of MFP in the state. An order dated 24. 4. 1999 by the SC & ST Dept of Madhya Pradesh circulated to District Collectors of Scheduled districts regarding transfer of ownership rights to the Gram Sabha says in the light of PESA and the subsequent amendment to the MP Panchayat Adhiniyam, the power to regulate collection and sale of MFP had been given to the Gram Sabha. A circular dated 22nd Dec, 1999 issued by the SC & ST Department of Madhya Pradesh defined MFP as produces which are harvested on a non-destructive basis and do not include minerals and derivatives of animals. The collection and sale of MFP, vide this circular, was vested with the Primary Co-operative Societies (PCS) and the MP MFP Federation was authorised to trade in these produces. The federation was mandated to distribute incentives to the primary collectors after all expenses were met. This provision was to be applicable, apart from Scheduled Areas, to other areas as well.
Chhatisgarh is governed by the Panchayat Raj acts and rules of MP. According to the forest policy of Chhattisgarh announced in 2001, the state would take appropriate measures through the Chhattisgarh State MFP (Trade and Environment) Co-operative Federation Ltd. for sustainable utilisation and long-term conservation of all MFPs found in the forests of the state. The state would take necessary steps to give ownership rights over MFPs to local communities as per the provisions of PESA.
After the enactment of PESA, Orissa amended the Orissa Gram Panchayat Act, 1964, Orissa Panchayat Samiti Act, 1959 and Orissa Zilla Parishad Act, 1991 in December, 1997. In March, 2000, the Forest Department brought out an executive order (Resolution no - 5503/F & E, 31-3- 2000) named as NTFP policy, which classified forest produces into NTFPs, MFPs, Lease-bar items, Tree-borne oilseeds, etc. The policy handed over ownership, control and management of over 60 items to Gram Panchayats. In May, 2000, the Panchayati Raj Department came out with a set of guidelines (Resolution No. 8131/GP, 26.05.2000) providing for registration of traders and management of MFPs by the GP and outlining the roles of forest officials, TDCC and OFDC. The Forest Department issued yet another resolution in August, 2000 to hand over 7 more MFPs to the Gram Panchayat (Resolution no - 13285/F&E, 23-8-2000). The state Panchayati Raj Department circulated a draft rule; namely, the Orissa Gram Panchayat (Minor Forest Produce Administration) Rules, 2002 in July, 2002. After due deliberations, the rules were finally notified in November, 2002. The rules conferred ownership rights over 68 MFPs to the GP and laid down guidelines for registration of traders, regulation of the trade, fixation of price at the Panchayat Samiti level, reporting structures etc. The latest amendment to the transit rules came in December, 2002. Under the amended Orissa Timber and other Forest Produces Transit Rules, 2002, MFPs can now be transported without a Transit Permit.
The Bihar Panchayati Raj Act was enacted in 1993 following the prescriptions of the 73rd amendment to the Constitution. The act was further amended in 2000 to incorporate the provisions of PESA. The state has a separate act for dealing with MFPs in the Scheduled Areas i.e. The Bihar Minor Forest Produce (Endowment of Ownership to Gram Sabha) Act, 2000. This act handed over the ownership right over MFPs to Gram Panchayats. In case of Jharkhand, a new Panchayati Raj Act was enacted in 2001 and rules were framed for conducting elections to the PRIs. Since elections have not been held so far to the PRIs in Jharkhand, no transfer of power has been made to the Gram Sabhas and Gram Panchayats. The state is yet to come up with any rules handing over the ownership rights over MFPs to the Gram Sabha or Gram Panchayat. The Jharkhand Panchayat Act mentions that within the boundaries of the Gram Panchayat, it can use customary mode to plan and manage natural resources that include land, water and forests in conformity with PESA. In the section dealing with the functions of the Gram Sabha, Gram Panchayat, Panchayat Samiti and Zilla Parishad in the context of Scheduled Areas, no mention has been made on the ownership rights over MFPs. Section 75 clause 8 (i) of the Jharkhand Panchayati Raj Act, 2001 mentions that "the collection, storage, processing and marketing of MFP is to be arranged or organized by the Gram Panchayat in all the areas including Scheduled Areas." In the functions of Panchayat Samiti, it has been mentioned that the Samiti will have overall management and supervision of MFPs. The Zilla Panchayat has been entrusted with the overall management of MFPs.
PESA was enacted mainly with the purpose that the Gram Sabha would be able to exercise powers in all matters affecting tribal society and economy. The panchayat bodies at different levels - keeping in view local conditions, capacity and capability of a particular tier - would be required to execute the decisions taken by the Gram Sabha. In this respect, the provisions of the Maharashtra and Himachal Pradesh Panchayati Raj Acts are in greater consonance with the provisions of the Extension Act. But PESA itself creates confusion by authorising either the panchayat or the Gram Sabha or PRIs at appropriate level to perform certain functions. In some states, terms like 'every panchayat', as in Maharashtra and 'PRIs' as in Rajasthan, have been used, which have created a great deal of confusion because they do not specify which tier of PRI would perform what function. The Rajasthan government has promulgated, though belatedly, an ordinance. But it is as good as no legislation because it has left almost each and every thing relating to scheduled areas to the state government. This only reflects a mindset, which is against empowering the people at the grassroots level.
It may be mentioned here that the provisions of different state panchayat acts have largely been influenced by the biases and mindsets of the state governments. The meeting of the state ministers of Panchayati Raj and Tribal Welfare held on September 8, 1997 at New Delhi to discuss the implementation of the provisions of the Extension Act is a testimony to these biases and mindsets. In this meeting, concerned ministers and secretaries, barring Secretary, Tribal Welfare and Minister, Tribal Development of Andhra Pradesh, and Ministers (Health and Tribal Welfare), Government of Gujarat (they wanted the implementation of the act), all others raised various questions with the thinly-disguised intention of delaying the implementation of the Extension Act. Some of them (like those from Rajasthan) felt there was no need for this legislation. N. C. Sexena, the then Secretary, Rural Development, commented this after listening to the views of the concerned secretaries: "...it is unfortunate that certain elements in the bureaucracy still have anti-tribal and anti-poor bias. When it comes to helping the rich, laws and policies are flouted easily, whereas meaningless objections are being raised when a pro-poor legislation is sought to be implemented".
PESA does not define minor forest produce, which has led to a lot of confusion in the states with scheduled areas. The Ministry of Environment and Forest defines MFP as forest produce other than timber, harvestable on a non-destructive basis and the Ministry of Rural Development and Employment suggests MFP as gatherable biomass collected from living trees and forest areas on a sustained and non-destructive basis. As there is no clear-cut definition, different states have come up with their own definition of MFPs. Nationalised and remunerative MFPs have been cleverly earmarked for state or private agencies, while the rest have been handed over to Gram Sabha/Gram Panchayat.
MP and Chhattisgarh have categorised MFPs as nationalised (Tendu leaves, harra, Sal seed and gum) and non-nationalised produces. Primary Cooperative Society at the village level, District Union at division or district level and State MFP Federation at state level are engaged in collection, processing, storage and marketing of these nationalised produces. After deducting the costs involved in the process, the profit is distributed among the primary collectors as direct cash. A part of it is also utilised for infrastructure and forest development. However, this incentive is meant only for Tendu leaves. But that has not stopped forest officials in the two states from claiming that ownership rights over MFPs have been transferred to the tribals. The specious argument used by the forest department is that the poor tribals are not managerially equipped to control and manage MFPs. The best example is the trading of nationalised MFPs by the state MFP Federation. The forest department is very concerned about sustainable harvesting of MFPs. It apprehends that once ownership is given to the Gram Sabha, it may not take adequate steps for conservation and sustainable harvesting of the species. In Orissa, the state government has kept important MFPs like Tendu leaves and Sal seed under the firm control of the forest department, while state-owned corporations are involved in trading of these MFPs. In Bihar and Jharkhand, nationalised MFPs are under the control of state-owned corporations. In Andhra Pradesh, Girijan Cooperative Corporation still holds monopoly over important MFPs.
From the analysis of the ground realities in the scheduled areas of Orissa, Jharkhand, Chhattisgarh and MP, it can be said that the Gram Sabhas do not yet have any kind of ownership over MFPs. The awareness level in the Gram Sabha as well as in the Gram Panchayat/other PRIs on ownership, control and management of MFPs is very low. No organised efforts have been made by the respective state governments to inform, educate and organise Gram Sabhas and Gram Panchayats on ownership over MFPs. No steps have been taken to create a conducive environment for the PRIs and Gram Sabhas to own, control and manage MFPs either. On the other hand, the state confirmatory acts don't have adequate provisions to endow ownership rights over MFPs to the tribals. While Panchayati Raj acts have been amended, the corresponding forest acts in some of these states have not been amended yet to give full power over MFPs to the Gram Sabha. Detailed guidelines for ownership, control and management are yet to be developed by the state or by the PRIs themselves. In a majority of the states, state-owned corporations like tribal development cooperative corporations, state forest corporations, etc. have the real control over MFPs.
In Orissa, things are just a little better. As GPs are now empowered to register the traders in their territorial jurisdiction for trading of 68 items, they have a feeling that they are the owners of those. However, they have not been legally empowered to take any penal measures against traders who don't pay fair price to primary collectors. They have to run after the Divisional Forest Officer for further action. The Gram Panchayats can't collect royalty from the traders either.
In Chhattisgarh, MP and Jharkhand, neither the GP nor the GS has any concrete idea of the transfer of ownership over MFPs. The situation is very confusing in both Chhattisgarh and MP. Though circulars were issued to the district Collectors of the Scheduled districts of both the states on transfer of ownership rights over MFPs, the PRIs were not informed about it at all. But both states claim that triabls are the owners of forest produce. Most of the articles mention that ownership rights over MFPs have been transferred to the Gram Sabha. But neither the Forest Act nor the Panchayat Act has mentioned it properly. In Jharkhand, the situation is the worst. There are no panchayats in the state.
As seen above, the tribal people are yet to benefit in the real sense from state laws and rules. The real spirit of PESA has not been implemented in the scheduled areas. Some possible measures that need to be taken up by the states have been discussed below:
1. Indian Forest Act, 1927.
2. Jharkhand Panchayati Raj Vidhayak, 2001. Ranchi: Catholic Press.
3. Jindal, M.L. 2001. M.P. Panchayati Raj Avam Gram Swaraj Adhiniyam. Indore: Rajkamal Publications.
4. The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996.
5. Kathyian, Rashmi. 2001. Jharkhand Panchayati Raj Adhiniyam Dewang Jharkhand Panchayat Nirwachan Niyamawali. Ranchi: Crown Book Depot.
6. Malhotra, N.K & Vishal Malhotra. Bihar Forest Manual. Patna: Malhotra Books.
7. Orissa Village Forest Rules, 1985.
8. Sharma, B.D.1997. Self-Rule laws-MP Gram Sabha. New Delhi: Sahyog Pustak Kuteer
9. Govt of India. 1998. An expert committee report on conferring ownership rights of MFP on Panchayat / Gram Sabha. New Delhi: Ministry of Environment and Forest.
10. Regional Centre for Development Cooperation (RCDC). 2002. Policy Analysis and Trade Environment in MP and Chhattisgarh, Field Notes, Bhubaneswar
11. Singh, Yatindra. 2002. 'Decentralised Governance in MP: Experiences of the Gram Sabhas in Scheduled Areas' in EPW, Oct. 15. Mumbai: Sameeksha Trust.
12. Pal, Mahi. 2000. 'Panchayats in fifth schedule area' in EPW, May 6-12. Mumbai: Sameeksha Trust
13. Mahapatra, Richard & et al. 2002. 'The Second Independence' in Down to Earth, Vol. 11, No 7, August 31, pp 22-36, New Delhi: Society for Environmental Communication