The most disturbing aspect of the draft bill is the secretive manner in which the whole drafting process took place. No public meeting/hearing, no consultation, no attempt to reach a consensus on an issue of such vital national concern. It is unfortunate that human rights groups, who have been at the forefront in demanding people's participation and right to information, chose to act diametrically opposite and remain silent on what they have been vigorously campaigning for.
Even more surprisingly, though the subject matter of the bill concerns forests, the task of drafting it was entrusted to the Ministry of Tribal Affairs: a ministry with limited capacity to deal with an issue that concerns over 22 per cent of India's land mass. It is, therefore, no surprise that the draft bill assumes that there are no other environmental laws at all! Not even at one place does it mention the Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972 etc. It does mention "wildlife" and "biodiversity", but without defining them!
One basic assumption in the bill, that the conferment of tenurial rights by itself will lead to conservation and protection of biodiversity, is to a large extent misplaced. Most Northeastern states have the bulk of their forests under tribal control and ownership. Unfortunately, the forests controlled by the area councils have recorded the highest rate of deforestation, prompting the Supreme Court to regulate forest fellings in 1996. The provision of inalienable tribal land provided no safeguard since benami transactions became the order of the day. The proponents of the bill make no mention of the Northeast experiences.
There are other more serious implications of the bill that can significantly undermine existing conservation efforts, with chaotic implications. The draft bill is applicable to "forest dwelling scheduled tribes" living "in and around" the forest. Forest includes "existing, proposed, reserved, deemed etc". One can understand what "in forest" means, but how far is "around"? Does it apply to tribals living within 1 km or 5 km of forests? The bill is silent on this count. The bill provides that hunting is punishable with a fine to be imposed by the concerned gram sabha. This is in direct contravention of the Wildlife (Protection) Act, 1972, that provides for a minimum of three years' imprisonment and a minimum of Rs 10,000 for hunting a schedule one species. Thus, a scheduled tribe poacher who kills a tiger can escape punishment by paying a nominal fine to the concerned gram sabha!
Even from the perspective of the forest-dwelling scheduled tribes, the bill will create chaos. The bill states that it is an offence for a person who has been conferred a right to a forestland to fell trees, destroy biodiversity and engage in unsustainable use. A simple question: if a tribal is not allowed to do any of these activities, what is the use of the right over the land? Further, who decides "sustainability" and "unsustainability"? When there seems to be no consensus even in the scientific community on the issue of sustainability, it is impractical to expect that every gram sabha would be competent to decide on the same. In any case, the judgement is bound to be subjective, and local power equations are bound to influence many of the decisions.
If the bill has to correct "historical injustice" against tribals, it must be carefully drafted. If passed in its current form, the bill is bound to open up a floodgate of litigations and chaos in the forests. Because it presents a rather idyllic and romantic notion of tribal lifestyle, besides clubbing them as a homogenous ethnic group irrespective of their location and cultural background. The draft needs to be thoroughly reworked and openly debated so that it does not become the source of "future injustice" for forest dwelling communities, and a cause of further deforestation.
(The author is a Supreme Court advocate and Legal Advisor to the Wildlife Trust of India.)