http://epaper.manatelangana.news/985347/Mana-Telangana-Daily/30-10-2016#page/5/1
Wednesday 2 November 2016
Saturday 22 October 2016
Gender justice eludes Adivasi women
Gender justice eludes Adivasi women
THE HANS INDIA | Oct 22,2016 , 01:44 AM IST
Adivasis women are deprived of securing succession rights over the ensured forest titled land under the Forest Rights Recognition Act (FRA), 2006, due to inherent limitations in customary norms of tribe societies. The gender parity has been reduced to a cliché. A new legal space has been created under the FRA, ensuring the registration of forest land titles jointly in the name of both the spouses in the case of married persons.
These forest land rights are heritable. However, no justiceable inheritance laws are in place for making a claim by a Adivasi woman on a par with man. The FRA is a legal tool to recognise forest land rights of Adivasis and other traditional forest dwellers over forest lands. However, the new legal space created through the FRA can only ensure the joint titles and woman title holder can enjoy the land during her life time.
The women successors of either of spouses are debarred from negotiating for justice and claiming equity in inherited property rights on a par with their counter men in the family. A glaring gap in the policy and legal framework in the country exists in the context of Scheduled Tribes. The British legal concept of individual private property destroyed the tradition of joint ownership and sharpened tensions within the Adivasi society also, while eroding their relationship with nature.
However, in the post-colonial period, some policy efforts were made to issue land titles in the name of women or jointly in the name of spouses over the government lands. However, the uncodified customary laws of Adivasis do not recgonise the inherited property right of a woman in the family and her rights are severely circumscribed and limited to usufruct only. The right to inherited property to an Adivasi woman is a cultural dependent. The legal norms are giving blind endorsement to the cultural norms.
The Supreme Court of India while dealing with a gender bias case in 1996 (Madhu Kishwar and others Vs State of Bihar) held that “it is not desirable to declare customs of tribal inhabitants as offending Articles 14,15 and 21 of the Constitution and each case must be examined when full facts are placed before the court.” The judgement reinforces gender inequity and female subordination in sharing the resources on equal base
The Hindu Succession Laws were enacted to undo past injustice and elevate a Hindu woman to equal status with dignity of person on a par with man in sharing their rights over inherited property.
However, the Hindu Succession Act, similar to Hindu Marriage Act and Hindu Adoption and Maintenance Act, excludes applicability of customs to the Scheduled Tribes as defined by Clause (25) of Article 366 of the Constitution unless the Central government, by notification in official gazette otherwise directs. Explanation 11 to Article 25 does not include them as Hindus. Thus neither the Hindu Succession Act, the Indian Succession Act, nor even the Shariat Law is applicable to the custom governed Adivasis. Thus Adivasi women are discriminated only on the ground of sex in the matter of intestate succession to the estate of the parent or husband.
Thus, there is no legal way Adivasi women could seek justice within the State or non-State traditional Adivasi forums to get equal right on a par with men if an Adivasi woman died intestate. Unfortunately, the British or post colonial legal policies have neither eliminated the gender bias in the property rights nor could recognise the community collective concept of resources without individualising the cultivations on the name of land survey. Although, the Hindu laws would not apply to Scheduled Tribes, the general principles of justice and equity should make them apply. Thus this issue must figure in the eye of current debate on conflicting personnel and constitution laws which are abrogating the equality and fairness.
By Dr Palla Trinadha Rao
The Hindu Succession Laws were enacted to undo past injustice and elevate a Hindu woman to equal status with dignity of person on a par with man in sharing their rights over inherited property.
Saturday 8 October 2016
A cry in the wilderness
A cry in the wilderness
THE HANS INDIA | Aug 19,2016 , 05:14 AM IST
The Compensatory Afforestation Fund (CAF) Bill 2016 recently approved by Parliament, enabling the States to spend the accumulated fund of Rs 42,000 crore for compensatory afforestation (CA), will not only jeopardise the livelihood rights of Adivasis, but also affect the very objective of rejuvenation of natural forests in lieu of loss of forests due to diversion.
The State is under legal obligation to claim the CAF from user agency in lieu of diversion of forest land or de-reservation of forests for non-forest purposes under the Forest Conservation Act 1980. There are specific guidelines to calculate the costs of Net Present Value (NPV) of forests, CA or Additional Afforestation (AD).
As per the fixed rates of Supreme Court in 2008, the NPV rates vary from Rs 10.43 lakh to Rs 4.38 lakh per hectare for non-forestry uses of land falling in different eco classes and density of sub classes. Similarly, the NPV for the use of forest land falling in the national parks and wildlife sanctuaries, is 10 times and 5 times respectively of the normal rates of NPV.
The new legislation enables AP government to claim its due share of Rs 2,230 crore and Telangana can claim more than Rs 1,000 crore from the unspent amounts lying with the Government of India (GoI). As per the existing guidelines under the Forest Conservation Act, 1980, the Compensatory Afforestation (CA) shall be normally done over an equivalent area of non-forest land.
In the case of revenue lands or revenue forest lands, a notification under the Forest Laws shall be given for reservation of forests. However, in the case of non-availability of these categories of lands for creation of CA, it will be acceptable in other category of forest lands when the States having area of forest land more than 33 per cent of their geographical areas as per the stipulated condition by MoEF & Climate Change (GoI) in 2014.
This condition restricts the Telangana and Andhra Pradesh to create CA in forest lands because the notified forest area is 24.35% in Telangana State, while in AP it spreads over 22.73 per cent of the total geographical area. There are several instances to quote the deviations of MoEF orders in case of diversion of forest lands or creation of CA to balance the loss of forests.
As per the reports of MoEF (2013), the Government of AP diverted forests land in an extent of 14,208 ha, but no certificate was obtained to show non-availability of non-forest land for creation of CA in other lands. Thus, forest clearances were obtained for diversion of forests without any requisite certificates from the Chief Secretary of the State concerned.
As per the Audit Report of the Controller and Audit General (CAG) of India-2013, the total forest land diverted during 2006-2012 in combined AP was 13,775 hectares, while the non-forest land received was only 9,512 hectare for creation of CA which constitutes the shortage of 30 per cent. Thus it shows that the State is failing to regenerate forests in lieu of diversion of forests lands for the projects.
In complete violation of the provisions of Forest Conservation Act, the Singareni Collieries in Telangana conducted mining operations over 278 hectares of forest land without forest clearances and APSEB in AP was also allowed for diversion of forests lands in national parks and sanctuaries by flouting the specific orders of Supreme Court.
The MoEF & CC has been giving executive orders from time to time for simplified procedure for felling of trees in the name of execution of linear projects or public utility or security arrangements etc bowing to the pressure of States. Even an order was also issued diluting the spirit of Forest Rights Recognition Act by MoEF & CC in 2015, exempting the role of Gram Sabha in giving its consent to clear the forests for linear projects.
Adivasis whose source of livelihood is intertwined with forests and common property resources being affected both in the forest areas chosen for diversion for non-forest purposes and also for creation of compensatory afforestation in either forest or other category of lands. The customary laws of Adivasis are changed by legislative fiat and restrictions imposed on their usage through CAF Bill or other stringent forest laws.
The very legal basis of Compensatory Afforestation Fund (CAF) Bill 2016 is weak and also against the fundamental rights guaranteed under the Constitution of India. The Bill enables the State forest department to spend the 90 per cent of the amounts arising out of the diversion of forests for non-forest purposes.
As per the provisions of Forest Conservation Act 1980, no forest land shall be converted for non-forest purposes without a prior approval from the central government. In the light of this provision, a legal principle was evolved to deposit the costs of Compensatory Afforestation (CA), Net Present Value (NPV) etc in lieu of diversion of forests.
The principle to pay the costs for diversion of forests for non-forest purposes stands on a weak legal foundation mainly because the forest does not mean only trees, wildlife, but also Adivasis or other traditional forest dwellers whose survival is intertwined with the forest resources. The State with its extravagant unbridled sovereign power is prepared to hand over the forest land to user agency for non-forest purpose, unmindful of the potential liability to protect the interests of Adivasis who have symbiotic relationship with forests.
The Apex Court in MC Mehta Vs Kamalnath case in 1997 held that the public has a right to expect certain lands and natural areas to retain their natural characteristics. However, the State is following the neoliberal economic models and giving clearances for diversion of forests for non-forest purposes on one hand and diluting the very natural characteristic of forests by accepting the artificial monoculture plantations in the name of compensatory afforestation.
The Public Trust Doctrine invoked by the Apex Court, the State is a trustee to natural resources and enjoins upon it to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. However in practice the State is committing a blatant breach of public trust by handing over the ecologically fragile lands to user agencies.
It may be mentioned here that the National Forest Policy-1988 aims at ensuring environmental stability and maintenance of ecological balance which are vital for sustenance of all life forms, human, animal and plant. The policy in specific ensures to meet the requirements of fuelwood, fodder, minor forest produce and small timber of the rural and tribal populations.
The Supreme Court in WP No 26691 of 2010 held that the Forest Policy has a statutory flavour. The non-fulfilment of the principal aim would be violative of fundamental rights ensured under Articles 14 and 21 of the Constitution.
The principle for payment of costs for diversion of forest lands is based on the “polluter pays price” principle. But the principle laid down by the Supreme Court in Indian Council for Environ Legal Action Vs of Union of India lays emphasis that "The polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.”
But the Compensatory Afforestation principle is mandating the user agency to pay the clean up costs of forests but not civil liability to pay to the people affected by the diversion of forests.
The fundamental right to life under Article 21 of the Constitution includes the right to healthy environment and right to livelihood.
The laws in force for compensatory afforestation fulfil only a part of this right negating the right to livelihood of adivasis. Thus a law has to be developed to construct a new principle of liability to deal with forests when diversion of forests has arisen and which is likely to affect not only forests but also ecosystem people.
By: Dr Palla Trinadha Rao
The State is under legal obligation to claim the CAF from user agency in lieu of diversion of forest land or de-reservation of forests for non-forest purposes under the Forest Conservation Act 1980. There are specific guidelines to calculate the costs of Net Present Value (NPV) of forests, CA or Additional Afforestation (AD).
The fundamental right to life under Article 21 of the Constitution includes the right to healthy environment and right to livelihood.
A tale of judgements in tribal land cases
A tale of judgements in tribal land cases
By Our Bureau | THE HANS INDIA | Sep 10,2016 , 01:49 AM IST
The land stories of adivasis seem never-ending and each one is unfolding with apathy and sabotage in the implementation process of tribal protective Land Transfer Regulations 1 of 70 (LTR). The LTR is intended to prevent tribal land alienation and restoration of alienated their lands to non-tribals in the Scheduled Areas of Andhra Pradesh and Telangana States.
The land story of a tribal Koya woman Chodi Durga, a resident of tribal habitat Turpu Rekulakunta of Buttayagudem mandal in West Godavari district, is a classic example of how tribals are deprived of access to justice. The woes of the tribal woman in accessing land justice further stand as a sad testimonial to unfair, arbitrary, unlawful functioning of justice delivery mechanisms in West Godavari district.
The land story began a decade back when a tribal woman filed a case (SR NO 15/2005) in the Special Deputy Collector (SDC-Tribal Welfare), K R Puram, seeking restoration of alienated land of Ac 5.56 in RS No 571/2 and Ac 10.72 cents in RS No 1469 located in the scheduled village Turpu Rekulagunta in Buttaigudem mandal from the hold of non-tribals. The SDC Court after an elaborate enquiry into the land case passed an order in 2006 allowing only Ac.4.72 cents of Ac .
10.72cents in Survey No 1469 and disallowed her claim for rest of the lands. However, tribal parties filed an appeal before the District Collector, West Godavari, who is a designated authority as an Agent to the Government under LTR, claiming the rest of the lands also.
The District Collector did not touch the findinsg of the SDC in relation to land of Ac.4.72 given in favor of tribals, but upheld the contention of non-tribals for the rest of the lands (SRA No 24/2007/F2 ) in 2011 after due enquiry into rival claims. But even the order given in favor of tribals in relation to Ac.4.72 was not implemented by MRO, Buttayagudem.
While it is so, non-tribal parties filed a writ petition (WP 11159 of 2016) in the High Court of AP, pleading false information that an appeal was pending before the District Collector against the order of SDC passed in SR No 15/2005 and sought protection of their possession from eviction from the land of Ac.4.72 cents.
Relying on their representation with a pen stroke, the High Court passed an order in April 2016, directing implementing authorities ‘not to give effect to the order of SDC until their appeal is disposed off”. In fact an appeal against the order of SDC was already adjudicated by the District Collector and disposed of in 2011 which was suppressed.
To cover up the misdeeds, an appeal was filed by non-tribals against the order of SDC. In fact a revision lies against such order of District Collector before the State government.
However, the District Collector usurping the power of Revision Authority-State Government (Minister for Tribal Welfare/Principal Secretary (Tribal Welfare) under LTR entertained it and passed an order (SRA 16/2016/F2) in favour of non-tribals on 10th August 2016 contrary to the order of his predecessor passed in 2011 in favour of tribals in relation to land of Ac.4.72.
This is evident from the order of District Collector (SRA 16/2016) passed arbitrarily without even giving any notice to the original tribal claimant by foreclosing their window of reasonable opportunity.
It may be mentioned here that dealing with a tribal land case, Justice Sanjay Kumar of AP High Court (WP No 34638/2015) made a serious comment on the style and functioning of District Collector’s court in West Godavari district, observing that it is negating the valuable rights of litigants.
The hapless tribal woman who has been pushed to unwarranted litigations said that she had incurred litigation expenses and its related costs of Rs 35,000 so far and indebted to non-tribals and the order of the District Collector afresh will further push her to vicious debt-trap. Unfortunately, revenue authorities are becoming part of the tribal land problems instead of the solution.
It is imperative on the part of Governor to intervene under Fifth Schedule of the Constitution to put a check to the abuse of powers of revenue officials clothed with Judicial or Quasi Judicial powers in administration of civil justice.
By:Dr Palla Trinadha Rao
Riding roughshod over tribal rights
Riding roughshod over tribal rights
THE HANS INDIA | Sep 22,2016 , 02:35 AM IST
The implementation of the notified national project ‘Polavaram’ by the Government of Andhra Pradesh has become a hot topic for discussion for all political parties seasoned as well new actors on the political stage. Unfortunately adivasis in lakhs from erstwhile Telangana’s agency tracts of Khammam district or East and West Godavari’s agency areas do not figure in the ongoing debate.
Polavaram debate ignores social costs, injustice to adivasis
Jungle law justice
Utter disregard of tribal laws
The Land Acquisition Authorities under Polavaram Project are not recognising the title deeds granted over forest lands held by adivasis in the submergence area for payment of either land to land or monetary compensation. Besides, none of the elected representatives takes up the Rehabilitation and Resettlement Authorities’ refusal to settle the rights of adivasis over the forest and revenue lands.
The non-tribal farmers and industrialists in the mainland are seeking benefits through sacrifices of poorest of the poor in the society. Tribals, native of the state or those from erstwhile Telangana, seem to have ceased to be people or voters anymore in the current debate.
The Polavaram Project will submerge 9 tribal mandals viz., Polavaram, Velerpadu, Kukunoor and Burgampad in West Godavari and Devipatnam, Chintoor, VR Puram, Kunavaram, and Bhadrachalam in East Godavari. About 9,252 acres of forest land including deemed forests and 10,000 acres of common property resources (CPRs) which are key to the survival of tribals are going to be submerged in the reservoir.
For instance, the report of Tahsildar, Polavaram Mandal (Roc 270/2004(R&R), states that about 660 acres of hill banjari lands are under occupation of tribals in 27 habitations covered by 10 gram panchayats (GPs) without any D Form Patta and now they are denied compensation.
The Government of AP has managed to secure forest clearance(Ref No 123/2005/FRA) for the Project in 2010 by furnishing false information that the forest rights claims over forest lands under Forest Rights Recognition Act (FRA) 2006 were already settled. But the fact remains that several individual and community claims submitted by tribals seeking entitlements are yet to be recognised by the adjudicating bodies under FRA.
Only 178 out of 840 individual claims were adjudicated in four villages in Polavaram mandal by the end of 2015. The ITDA, West Godavari, data shows high rejection rate of 79 per cent in Polavaram mandal. The tribals’ individual forest land claims in other forest interface villages in the mandal were totally disallowed at the instance of forest officials, depriving the tribals of the right even to seek compensation under the project.
The reasons for rejection are not yet communicated, stopping the aggrieved claimants to file appeals to the higher level committees for justice. Instead of recognising the community forest rights in favour of tribal community under FRA, the government has granted title deeds to several Vana Samrakshana Samithis (VSSs) in West Godavari.
For instance, community forest rights over 8,222 acres in Kondrukota, Thutigunta, Chegondapalli and Koruturu Gram Panchayats of Polavaram mandal were granted in favor of 9 VSSs. Similarly, over 8,617 acres of forest lands in Devipatnam Mandal in East Godavari are granted to VSSs.
The Ministry of Tribal Affairs (MoTA), Govt of India (Circular No 23011/2013), held in the year 2013 that the grant of Community Forestry Rights titles to VSS is illegal and it directed the authorities for its withdrawal and grant in the name of community. The rights of adivasis have to be settled in thousands of acres of forest lands in several villages in East and West Godavari districts.
Land acquisition officers of Rajahmundry, Kovvur, working under Polavaram Project admit that no acquisition proceedings were effected so far for acquisition of forest land titles granted under FRA in Polavaram Submergence Area, in response to a query by the author under RTI.
Without settling the rights of adivasis, the government is using coercive steps to relocate the tribals from their habitats in and around at project dam site. No forest dwelling STs shall be evicted or removed from the forest land under Section 4 of FRA pending finalization of their forest land claims.
The MoTA gave a conditional clearance to the Government of AP for R&R project under the Polavaram Project that the government shall provide land to tribals in lieu of the land acquired from them in the command area and preferably within the Scheduled Area if the command area and Scheduled Area are co-terminus.
The Minster for Water Resources, GoI, answered an unstarred question of Palvai Goverdhan Reddy in Rajya Sabha in 2014 that the AP government is following its R&R Policy 2005 (GO Ms No 68) and shall acquire land in the project benefited area for rehabilitation of oustees.
Violating its policy and promises, the AP government is providing lands to affected tribals in the Scheduled Area only, affecting other tribals dependent on the CPRs and lands in their villages. Of 325 revenue villages transferred from Telangana to residuary Andhra Pradesh only 193 will come under the submergence of Polavaram Project and the rest are intended to provide rehabilitation to the displaced tribals.
The rehabilitation and resettlement in the tribal villages will invariably create large-scale social conflicts among the existing tribals and the relocated displaced tribals in sharing their CPRs and other resources for their livelihood. Both the land acquisition and rehabilitation project is implemented without obtaining free informed consent of Gramsabha and Mandal Praja Parishad under the Panchayats Extension to Scheduled Area(PESA) Act and Land Acquisition Laws.
The High Court of AP has stayed (WP No 33452/2015) the land acquisition in Kondamodalu gram panchayat in East Godavari district on a ground that officials cooked up gram sabha resolutions in the name of community. The Government of AP Policy 2005 recognises that the issue of displacement must be handled with utmost care human touch and forethought in respect of tribals, however it failed to implement on the ground. All responsible elected representatives need to avert a great disaster in the region that is neighbouring already highly disturbed Dandakaranya.
By Dr Palla Trinadha Rao
- About 9,250 acres of forest are going to be submerged in the reservoir
- Also 10,000 acres of common property resources key to survival of tribals will go under water
- No settlement of rights of several adivasis over forest and revenue lands
- Thus they stand to lose compensation under the R&R Act
- Those rehabilitated are deprived of access to common property resources
- AP wrongly reports that forest rights claims under Forest Act 2006 already settled
- In gross violation of FRA, AP transfers title deeds to Vana Samrakshana Samithis over 16,000 acres
The Land Acquisition Authorities under Polavaram Project are not recognising the title deeds granted over forest lands held by adivasis in the submergence area for payment of either land to land or monetary compensation. Besides, none of the elected representatives takes up the Rehabilitation and Resettlement Authorities’ refusal to settle the rights of adivasis over the forest and revenue lands.
A champion of rights of voiceless people
A champion of rights of voiceless people
THE HANS INDIA | Oct 08,2016 , 03:59 AM IST
Balagopal needs no introduction or prefix or suffix required to his name. He is a well-known champion of the cause of human rights in the country. He advocated a principled attack on violence, perpetuated by varied forces – state or non-state political actors. He was unceasingly diligent in pursuit of upholding human values and securing justice through courts of law till his last breath. A vast void has remained unfulfilled in the realm of legal rights movement against State oppression, deprivation and subjugation of the marginalised sections, particularly in the case of adivasis after his death.
Balagopal emphasised a broader attention towards violence, both the State physical violence and its structural violence on equal footing in understanding and addressing the human rights issues. Unlike other civil liberty activists, he raised a fundamental human rights question that one form of violence is not more justifiable to purportedly get rid of another form of violence. Does the human rights movement defend the choice and implicitly sanction taking of life? Or does it defend the right to life and lay itself open to the charge that it is implicitly defending or protecting structured iniquity?
Balagopal stood as a strong crusader for the adivasi movement for recognition of forest rights and ensuring the implementation of Forest Rights Recognition Act 2006 (FRA). He could get a favourable order from High Court of Andhra Pradesh seeking a direction to the implementing authorities to issue forest land titles to eligible forest dwellers when a writ petition filed in 2007 by former forest bureaucrats to stall the operation of the FRA. He fought against neglect of tribals, and the unfortunate loss of hundreds and thousands of lives of adivasi children and adults every year due to the failure of government to ensure access to safe drinking water and basic medicare in the agency areas.
He fought for prevention of epidemics taking toll of adivasis year after. He successfully argued that gastro enteritis deaths claiming several hundred lives of Gonds in Adilabad were a result of government failure to ensure conditions necessary for normal life scheduled areas. More importantly, he also articulated how adivasi opposition to the Polavaram project that is destroying their lives and identity is to be seen as a democratic demand.
He came to the rescue of several tribal households when the government was dispossessing them from their lands and habitats without recognising their rights over resources and the free and informed consent of Gram Sabha in the agency areas of East and West Godavari districts. He argued on behalf of hapless tribals before the High Court and obtained a stay of illegal process of land acquisition.
Balagopal provided legal aid to several needy tribals in the higher courts enabling them for restoration of thousands of acres of alienated cultivable land from the possession of non-tribals. He particularly supported the adivasi movements struggling to get legitimacy for their lands in the Scheduled Areas. He was instrumental for several public interest litigations (PILs) and securing pro-tribal judgements from the High Court of AP.
For instance, the authorities under tribal protective Land Transfer Regulations used to dismiss the claims of tribals for repossession of lands held by non-tribals by applying the general principle of resjudicata (no re-enquiry is permissible once the subject matter of the dispute was already adjudicated). However, Balagopal succeeded in getting a favourable order from High Court in 2003 to put a restriction on the use of such general legal principle while adjudicating the tribal land disputes by the authorities.
Balagopal strongly opposed the revenue authorities issuing protection orders instead of conducting enquiries either under 145 CrPC against the tribal occupants if peace was affected or leaving the owner of the property to get the occupants evicted by a decree of a civil court. The High Court of AP in 2008 held that the revenue officials had no legal authority to issue such protection orders in favor of non-tribals and against tribal land occupations.
Balagopal’s advocacy skills helped to arrest the illegal migration of non-tribals and settling in the Scheduled Areas by constructing houses in violation of LTR. The High Court passed a judgement (WP No 3373/2000) nullifying the order of government facilitating construction of houses and establishments by non-tribals in the agency areas. The Supreme Court also dismissed the Special Leave Petition (SLP 28423/2011) filed by the unsuccessful non-tribals of the case at the High Court.
He was a support to tribals and supported the present agency legal system in a case adjudicated by the High Court. The aggrieved parties moved civil appeals (CA No 5030-5036 of 2004.) against the ruling of High Court and finally the Supreme Court upheld the judgement of AP High Court in continuing the judicial power of revenue authorities to adjudicate civil matters arising from the Scheduled Areas.
Balagopal strongly supported the cause of thousands of families of Gothi Koyas affected by violence in Chhattisgarh moving to forest areas of Telangana and Andhra Pradesh in search of livelihood. He opposed the oppressive and violent acts of the forest department and burning their habitats in the name of forest land encroachments. Following his principles is the real tribute to him.
By Dr Palla Trinadha Rao
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