Fifth Schedule, PESA and FRA: View from Governor’s office of Maharashtra

Fifth Schedule Special responsibilities for Governors of Fifth Schedule states Para 3 –Report by the Governor to the President regarding administration of Scheduled Areas; Attorney General has opined that this report is a discretionary power of the Governor Para 4 – Tribes Advisory Council to advise the Governor on welfare and advancement of Scheduled Tribes

Fifth Schedule (contd.) Para 5(1) Very important function given to the Governor Notwithstanding anything in this Constitution , Governor may by public notification direct that , any particular Act of Parliament or State shall not apply Or apply with certain modifications that he may specify. Such modifications can be also given retrospective effect Advocate General and various Courts have opined that this power is the sole discretion of the Governor , not bound by TAC Permission of Hon’ble President not needed

Fifth Schedule (contd.) Para 5(2) – Governor may make regulations for peace and good government Example: Act I of 1959 and 1970 in Andhra pertaining to keeping land in Scheduled Areas as non-alienable to non-STs All Regulations to be submitted to the assent of the President The powers of issuing notifications are a powerful tool to protect interests of Scheduled Areas Scope for welfare is vast and virtually unlimited

Tribal Cell in Governor’s Office Formed in Maharashtra in 2012 Aims: Welfare of tribal areas/Scheduled Areas Policy feedback to the government Advocacy Bringing changes in laws to ensure welfare of tribal communities Special focus on ensuring implementation of FRA and PESA Vision: To bring rights-based transformation in Scheduled Areas To bring tribal issues on the centre stage

Tribal Cell interventions Regular review of districts by Video Conferences, with special focus on FRA and PESA Important agenda of review during Governor’s visits to various districts Meetings with departments on various interventions in health, nutrition, land, service delivery, increasing financial resources Getting feedback from civil society Stress on training and awareness generation Liaison with Government Departments to issue facilitating guidelines and Orders for Scheduled Area welfare

FRA in Maharashtra- as in 2011 IFRs- Over 1 lakh claims approved But…… Large scale rejection ---Almost 70% Low average acreage No reliance on non-documentary evidences Use of technology to disprove credible cases

FRA in Maharashtra as in 2011 CFRs: 922 approved , 337000 acres But….. Almost all CFRs in Gadchiroli Despite Gadchiroli claiming substantive rights uphill struggle to access bamboo; a lot of bamboo was being auctioned to BILT Gram Sabhas not coming forward for concerted action on MFP due to lack of awareness or lack of mobilisation Well documented lease rights such as Dali and Eksali not granted Habitat Rights not claimed

Initiatives by Governor Office for FRA Intensive review; stress on giving all relevant CFRs to all villages; special stress on section 3 (1) (i) Appointment of FRA district and Taluka managers using Tribal Cell innovative funds to expedite claims Training to districts and workshops to help create awareness about importance of CFRs

Results … CFRs under section 3(1) increased to almost 19 lakh acres Substantial CFRs now given in many districts On request of Tribal Cell TDD directed districts to reopen cases where there was modification/rejection without intimation But….. Quality of CFRs barring a few districts still a concern Tendency to avoid giving access to MFP OR restricted access Still more than 8000 villages which need to be given CFRs DLCs still rely only on documents to decide IFR cases

PESA Non-implementation of PESA even after 15 years of PESA Absence of PESA Rules in most States till recently Many state Acts were not in line with PESA PESA was not even a point of discussion in Scheduled Area districts Many administrators at the field and some at policy levels had sketchy knowledge of PESA No field level mechanisms to carry forward mobilisation and awareness

Steps taken Governor of Maharashtra insisted that PESA be implemented vigorously First Stage Bringing State Acts in line with PESA Putting policy decisions about access to community resources in place Issuing guidelines about various rights enshrined in PESA Ensuring that PESA rules were published

Steps Taken (Contd.) Second Stage Use of Fifth Schedule Powers by the Governor to bring legislative changes and ensure implementation of PESA Special focus on ensuring access to MFP and minor water bodies Third Stage Consolidating on the gains made in First and Second stage Massive mobilisation about PESA Setting up a state PESA cell

Mobilisation Formation of a State PESA Cell in RDD Appointment of PESA coordinators in all Blocks and Districts Issue of GR for appointment of Gram Panchayat mobilisers Use of the GPDP program of MoPR as a vehicle to spread knowledge about PESA in all villages

Notifications issued by Governor of Maharashtra Para 5 (1) of Fifth Schedule of Constitution of India gives to the Governors of Scheduled Areas power to amend any Central or State laws This power has been largely unused in independent India Gives scope to modify laws which may not be in the best interests for Scheduled Areas Power is “notwithstanding anything in the Constitution ”

Notifications (contd.) Notification dated 9th June, 2014 Identifies 10 service delivery posts to be reserved for STs in Scheduled Areas By subsequent notifications numbers raised to 16 Posts identified are Patwari, Surveyor, Gram Sewak, Anganwadi Supervisor, Teacher, Agriculture Assistant, Forest Guards, Livestock assistant, ANM, MPW, etc. Idea is to prevent rampant absenteeism Addresses lack of knowledge of local languages and customs

Notifications (contd.) Notification dated 19th August, 2014 for ensuring access to MFP to Gram Sabhas State MFP law passed in 1997 ensured access to only 33 MFPs; Bamboo and Tendu excluded; power to Gram Panchayat , not Gram Sabhas Notification amended Transfer of Ownership of MFP Act to redefine MFP on the lines of definition in FRA Inserted the provision for Gram Sabha access Amended Section 2 (7) of Indian Forest Act, 1927 to explicitly that bamboo is not a tree

Notifications (contd.) Notification dated 30th October to bring Acts in line with PESA Amended five State / Central Acts in order to bring them in line with PESA Redefines social sector in the Village Panchayat act to ensure that departments outside the PRIs are also answerable to Gram sabhas Ensures that 5% of the TSP shall be annually and unconditionally devolved to GPs in Scheduled Areas for their developmental works As per this, Rs 250 crore have been directly devolved to Scheduled Area Gram Panchayats in the past two years; very popular scheme

Notifications (contd.) Governor, by notification dated 30th October 2014, amended Indian Forest Act , 1927 Despite earlier notification need felt to further protect MFP rights Introduced new Chapter III A regarding MFP Rights to Gram Sabhas in the IFA, 1927 (1) Notwithstanding anything contained in this Act, the transit permits, in relation to transportation of minor forest produce in the Scheduled Areas referred to in Clause (1) of article 244 of the Constitution of India shall be modified and given by the Panchayats at the appropriate level and the Gram Sabha or a committee thereof.

PESA and FRA (contd.) (2) All decisions for the collection and sale of minor forest produce in the Scheduled Areas, and the sharing of all sale proceeds shall be taken by the Panchayats at the appropriate level and the concerned Gram Sabha.” GR was accordingly issued by RDD to ensure that Gram Sabhas could auction Tendu , Bamboo and other MFPs on their own.

Impact Many Gram Sabhas came forward to auction Tendu and Bamboo, especially in Gadchiroli Last year almost 25 villages in Gadchiroli auctioned Bamboo In 2016 March to June almost 100 villages have auctioned Bamboo and almost 600 villages have auctioned Tendu on their own Occasional issues still persist about permit passes, working plans, etc. Resistance from certain departments in some parts Knowledge about rights under PESA and FRA with reference to MFP still sketchy

Notification (contd.) Notification dated 14 June, 2016 to protect tribal land Earlier land alienation from tribal person to non-tribal person allowed by Maharashtra Land Revenue Code,1966 subject to Government permission No role for Gram Sabha, thus, contrary to section 4 (m) (iii) of PESA Notification of Governor amended MLRC,1966 No tribal to non-tribal land transfer without permission of Gram Sabha

Non-Notification Interventions

Interventions in nutrition in Scheduled Areas Governor expressed desire that eggs may be introduced as an additional nutrition intervention for pregnant and lactating women and for children in Anganwadis Pointed out that scope for additional financial allocation within existing TSP budget APJ Abdul Kalam Yojana introduced accordingly Stream I For pregnant and lactating women last year Since August 2016 second stream has started working in Anganwadis for children in Scheduled Areas

Dali land issue for Katkaris Katkaris are a PVTG, in Raigad and some other districts Dali land leases in forest lands were given pre-independence Regularisation was done by Government but could not be realised due to FCA, 1980 Matter taken up by Governor under FRA Nearly ten thousand hectares have now been recognised under CFRs However, certain demands for IFR rights which are being examined

Homestead land for Katkaris Most Katkaris have their homestead on the lands of landlords Not transferred in the name of Katkaris despite provision existing in Tenancy laws Governor has directed that this process should begin at the earliest Move has potential to impact almost 30000 persons of Katkari communities

Potential issues for interventions through notifications- in brief Addressing the question of unsecured/unrecorded tribal tenants Ensuring rights over income of minor minerals, partially or wholly Ensuring income to GPs over timber harvested by forest department, partially or wholly Ensuring changes in Transfer Act to prevent vacancies in high burden tribal areas Ensuring communitisation of institutions as per the mandate of PESA

Other non-notification interventions Identification of Beneficiaries, Approval of Plans, social audit by Gram sabhas Powers to identify illegal land alienation and restore land GR for transfer of all minor water bodies to Panchayats GR for Seed capital for access to MFP and fisheries in Scheduled Areas Appointing District and Taluka managers for FRA in 6 important districts Number of studies initiated regarding tribal welfare Taking up issue of transfer of subjects to PRIs with state government

In conclusion… Scope for using Fifth Schedule provisions intensively in all the ten states Possibility to use it creatively and by consulting Need for questioning legality of laws that contradict the letter and spirit of PESA Helping create knowledge about laws

Thanks