Memorandum of Indigenous People’s Forum ( IPFO) , Odisha for 15 th

November 2016.

Odisha Adivasi Situation:

Friends,

We, The Adivasis of Odisha are going through a crisis and facing toughest challenge to our

survival and are on the way to siege. The insensitivity, apathy and wilful negligence by the

State, through its Governance and bureaucracy system in the Last 69 years of Independent of

the Country are the proof by itself. We have more miseries and slavery than freedom and dignity.

We are facing largest ever armed assault by the State in the name of Green hunt, Maoist

combing operation ..etc. to hand over the Natural Resources to corporates and we are

dispossessed and displaced from our ancestral land and our territories. The police who is to safe

guard and protect the life and property of SAs and STs are excess on Adivasis and hundreds of

innocent Adivasis are languishing in the jails. We are facing systemic discrimination and exclusion

from political and economic power. We continue to be over-represented among the poorest, the

illiterate, the destitute . The specific laws and rules to govern the Scheduled Areas (SA)and

Scheduled Tribes (ST) in the country and in the State are not implemented.

ODISHA STATE DATA:

In Odisha, SA covers 44.7% of State’s geographical areas. We have 7 fully and 6 partially

districts with SAs together with 21(Integrated Tribal Development Agencies) ITDA, 119 Blocks,

46 Modified Area Development Approach Cordon (MADA),14 Clustered Villages, 13

Particular Vulnerable Tribal Group (PVTG) and 17 Micro Projects for the development of the

Tribals/Adivasis. We the 62 types of Adivasis/Tribals (22.8%), constitute 95,90,756 out of

41,974,218 State population according to 2011 census live in 19,338 villages out of 51,349 total

villages of the State.

Finance and Tribal Development:

Knowing Adivasi miseries, right from the declaration of the Constitution in 1950, the Govt. Of India,

Under article 275 (1) of the constitution, a Consolidated Fund of India as grant-in-aid of the revenues is

allocated for the purpose of promoting the welfare of the STs, which is known as Tribal Sub Plan

(TSP). The State also allots a considerable amount of funds for the Tribal development. In spite

of, the Central and State Governments plans, schemes, projects and allotment of crores of

rupees, what we get is known to you all. The State, Bureaucracy and System have failed

miserably. Let thousands of years come, if this system remains, the Adivasis will never ever be

developed.

Governance, Laws, Rules for Scheduled Areas and for Tribals

There are beautiful laws, Acts and rules are inscribed in the constitution of India as well as in the

State for the STs and SAs development, e.g 1. The Fifth Schedule,2. The Orissa Scheduled

Areas Transfer of immovable Properties Act 1956 or Regulation 2 of 1956 3.The provisions of

the Oanchayats (Extension to the Scheduled Areas) Act or PESA Act 1996, 4. The SC/ST

Prevention of Atrocities Act1989 and rule 1995, 5.The Scheduled Tribes and Other Forest

Dwellers (Recognition of Forest Rights ) Act 2006,6. The land Acquisition, Fare compensation,

Rehabilitation and Resettlement Act 2013 (LARR-2013), Art. 19 (4) and (5), Art. 275 (1),

Art.243 M and 243 ZC and many others, but they are not being implemented. Therefore the SAs

and STs are marginalized and living a subhuman life. The State mechanism have failed and the

Non Tribal Bureaucrats have NO interest in the SA and ST development is clear from the 69

years of the State governance. The Fifth Schedule of the Constitution is NOT looked into by the

Governor, who is the Constitutional custodian for SAs and STs of the State.

PROPOSALs:

1. Removal of all Arbitratory Laws of the country in the Scheduled Areas, MADAs and

Clustered Areas.

2. Implementation of ‘Fifth Schedule’. The honourable Governor actively take up the

Administration and Control of SAs and STs as, Governor is the Constitutional custodian.

3. Structural Change in the Governance in SAs/MADA Areas:

i. Village / Gram Level: The Gram Sabha be formed as per 4(b) of PESA Act1996.

ii. Intermediatory Level: Instead of Sub Divisions, Blocks and Gram Panchayats,

Villages, the Tribals / Adivasis have their own intermediatory governance system

that is 4(d) of PESA.

iii. District Level: The District Autonomous Council (DAC) be formed by the

Adivasis/Tribals as per 4(o) of PESA. The Tribal Chiefs shall be there in DAC as

members and Executives.

iv. State level: The Tribes Advisory Council (TAC) as per ‘Fifth Schedule’ be

empowered. The TAC and the Hon’ble Governor as its chief shall look after the

administration and control of SAs and STs. (It shall have a separate administrative

and Financial management system than general administration of the district).

We will have Adivasi Darbar consisting of all the 62 Tribal Chives with their

office.

v. Finance for SAs and STs: The financial management of the SAs

/MADA/Clustered/ PVTGs/ Micro projects be separate. It needs to be

administered through TAC and Ministry of ST department and ITDAs and not

through district administration. The TSP and other fund for STs be given to

Governor and TAC then to DAC and ITDA- Intermediotary and to Gram Sabha.

vi. Evaluation and Monitoring: Annual evaluation and monitoring team of Adivasi

experts be formed and they will make the monitoring and evaluation of the

SAs/STs administration and development. Also annual report that will be sent to

the president of India.

vii. Single Window System: The Adivasis need to be governed in a single window

basis and not be harassed in different offices. It will function in Governor office.

Implementation of PESA 1996

1. Recognition of village/ward/Tollas/Tolies/Sahi/Poda as Gram according

to 4(b) of PESA Act 1996 and 2 (p) of FRA 2006 in Scheduled Areas

(SA), Modified Area Development Agency( MADAs) and Clustered

villages as our homelands. It is because PESA defines the village for the

first time in the Constitution (also accepted in the Forest Rights Act,

2006) and acknowledges the competence of the traditional governance

system as well as the control over natural resources by the village

community.

2. ‘NO’ to Un willing posting of NON Scheduled Tribes (ST) officers and

who are NOT interested on Tribals and Rural Development officers in

SAs. Many are posted as Punishment Postings. Single line

administration; imbibing the spirit of Self-Governance as in PESA Act

1996.

3. Immediate release of all innocent tribals who are languishing in jails on

false and fabricated charges. Drop all charges against them at once.

4. Stop the selling of liquor in tribal areas as envisaged in the 1974 Excise

policy of the Central Government; Respect the authority of Gram Sabha in

control over liquor as per PESA 1996;

5. In view of the transfer of power over of issue of certificate in respect of

caste, marriage, birth and death from Gram panchayat to the different

governmental authorities, the common people are getting harassed a lot.

As per section 4 (d) of PESA Act 1996, the gram Sabhas in Scheduled

areas in Odisha should be authorized to issue certificates of caste ,

marriage , birth, death and residence of its inhabitants.

6. Extend 74th Amendment to the Scheduled Areas by enacting suitable law

by the Parliament; End the constitutional violations in urban areas of

Scheduled Areas by withdrawing the illegal extension of State Municipal

Laws.

7. Bring a state policy on mother tongue based preschool in tribal areas,

appointment of tribal anganwadi workers and culture appropriate

curriculum.

8. None of the three principal Panchayat laws ( Odisha Gram Panchayat

(OGP) Act 1964, Panchayat Samiti Act 1959 and Zilla Parishad Act 1991

) in Odisha are not complied to 73rd rd constitutional amendment act 1992

( now part IX of the constitution) and also the PESA Act 1996 because

such panchayat laws have bestowed substantial powers of control and

domination over the Gram Sabha and panchayat in all areas in schedule or

non-schedule area. So Odisha should replace these three laws by a single

consolidated panchayat laws like other states and in conformity to the

letter and spirit of the part IX of the constitution and PESA Act 1996. The

effort is to be made to evolve the Gramsabha as an institution which will

have a decision making authority.

9. Amend and change all the subject laws of the Centre and the states The

Mines and Minerals (Development and Regulation) Act, 1957, Coal

Bearing Areas (Acquisition and Development) Act 1957 etc in conformity

with the letter and the spirit of PESA, particularly with reference to the

provisions of sections 4(b) and 4(d) ;

10.The existing state laws like Land Reform Act 1860, Government land

settlement act 1954, OPLE Act 1972 along with OSATIP 1956

(Regulation-2) along with schemes like Mo Jami Mo Diha and

Basundhara to be drastically amended in confirming to Item-2 of 11 th

Schedule of the Constitution and PESA 1996.

Land and Displacement

11. Stop police repression on all anti-displacement mass movements such as

anti-POSCO, anti-Vedanta, and the Kalinganagar movements. Withdraw

false cases against the anti-displacement leaders and activists.

12.Acquisition of land must be with the consent of people and Gram Sabha

as prescribed in the PESA 1996, FRA 2006, Samata Judgement, and

Recent Supreme Court judgement on Niyamagiri 2013.

13. Enforce the Orissa Scheduled Area Transfer of Immovable Property

(OSATIP) Regulation 2 of 1956 and restrict the transfer of patta land of

tribals to non-tribals.

14. Return all unlawfully alienated land to their original tribal owners, and

Other land related Matters: settle Encroached Government Land, in favour

of tribal and dalit small farmers:

15.A large number of tribal families have lost their lands to unscrupulous

money lenders, and other vested interests through unlawful, deals and

transactions. In addition, a large number of tribal farmers have been

cultivating land for several generations that is still not recorded in their

name. Very often, such land is usurped by vested interests through

nefarious deals or through money lending and usury.

16.Land reforms have taken but limited effect in the Fifth Scheduled areas.

Much of the land settled in the name of the tribals, is still in possession of

the land lords. Such cases should be reviewed and urgent steps taken to

restore the ceiling surplus land to its rightful owner.

17. Ensure that the industries first implement complete relief and

rehabilitation in the existing and abandoned projects before fresh leases

are granted for mining more lands and displacing more people in the green

field areas.

18.Gram Sabhas, should be empowered to decide on these cases, in keeping

with section 4.m.iii of the PESA Act 1996. In addition, Land Tribunals or

Fast Track Courts under Article 323-B of the Constitution should be set

up for expeditious redressal of such cases, in consultation with the Gram

Sabha.

Non implementation of protective legislation like FRA 2006

1. Confer individual and community Rights to people under Scheduled Tribe

and other traditional forest dwellers (Recognition of Forest Rights) Act

2006.

2. The implementation of the Community Forest Rights as per the Forest

Rights Act has been poor, often contrary to its empowering provisions and

it’s potential to achieve livelihood security, strengthen forest conservation

and governance has hardly been achieved.

3. Recognise the gram/ward sabha's power to protect and manage forests,

own non-timber forest produce under the FRA 2006, and obtaining Gram

Sabha’s informed consent for forest diversion for projects; . Steps must be

taken to protect the indigenous tribal knowledge of plants and their use.

4. All the forest villages should be given the status of Revenue villages with

immediate effect. There are 48061 revenue villages in Odisha. Besides,

based on the 2001 census report, the govt. of Odisha has identified 587

forest villages/un surveyed villages in the district. Besides, there are more

hundreds of such villages located in the reserve forest area which needs to

be identified.

5. Recognize the traditional community forest management in Odisha which

is an impeccable symbol of democratic, egalitarian and sustainable socio-

economic and cultural units exhibiting the advanced structures and

sustainable models on which traditional Indian economies are built.

6. The SDLC (under FRA) to provide map, voter lists and awareness

materials to the Gram Sabha / Forest Rights Committee as per rule (6) of

Forest Rights Rule 2007 which has been attempted yet by any SDLC—in

the state despite huge amount of money sanctioned to ITDA / DRDA

since the year 2008/9 for the above purpose.

7. Countless Pattas in favor of ST families under FRA 2006 have been

issued especially in the schedule districts of Odisha containing such

unwarranted conditional ties (as you can n’t “ fell any tree on the allotted

land “ and this right is subject to the final verdict of the Odisha High

court) which is ultra virus the section 4 (7) of FRA Act 2006 that says the

concerned forest land so allotted should be free from all encumbrances. It

is therefore urgently required that the above mentioned pattas be replaced

by the legally valid pattas.

8. Numerous pattas under FRA 2006 have been issued across the state

without the sketch map of the forest land attached with which is ultra

virus the formats specified for the issues of individual and community

titles.

9. The existing Odisha minor forest produce ( administration )Rule 2002 is

ultra virus the FRA 2006 since the former give the ultimate power of price

fixation to the district collector and power of penalty to DFO whereas the

Gram Sabha is the ultimate authority of the right over minor forest

produce as per section 6 of Forest Rights act 2006.

10. In view of the firm provision made in FRA that the gram sabha and forest

right committee to act as the competent authorities in the matter of all the

forest rights. The so called Odisha Joint forest management resolution

2002 which entrust substantial power to forest officials over the holders of

forest rights is against the letter and spirit of FRA 2006.

11. The government of Odisha ought to jettison its skewd implementation of

FRA which is evident from the utter neglect of the community rights over

forest land and forest resource and also recognistion of forest rights of the

Other Traditional Forest Dwellers.

12.Recongise and respect the gram/ward sabha's power to protect and

manage forests, own non-timber forest produce under the FRA 2006, and

obtaining Gram Sabha’s informed consent for forest diversion for

projects;

Violation of tribal rights by forest administration and forestry programs

13.Number of laws, policies and programs implemented by the Ministry of

Environment and Forests potentially dilute protective legislation (FRA,

PESA) and violate rights of tribals. Notable ones are the Compensatory

Afforestation Act, 2016, the proposal for privatization of forests,

notification of Village Forest Rules in the states of Maharashtra and

Madhya Pradesh, promotion and strengthening of the Joint Forest

Management, plantation in land occupied and used by tribals for

livelihoods.

Rights of PVTGs

14.The Particularly Vulnerable Tribal Groups (PVTGs) among the tribes

need special attention due to their vulnerability in the present situation.

Their customary right to land, forest and sources of livelihood must be re-

spected and protected.

15.Habitat Rights of Particularly Vulnerable Tribal Groups (PVTG) have to

be recognised.

Tribal Sub-Plan (TSP)

16. Bring a new legislation on Tribal Sub-Plan (TSP) for prohibiting

diversion of TSP money in no-tribal areas and bringing transparency and

accountability.

17. All the development of the area under the Tribal Sub- Plan should be

planned and administered by the Panchayat bodies as per the PESA Act

1996.

18. Special allocation must be made for fast implementation of forest rights

act, National bio-diversity act and panchayat (Extension to Schedule

Areas Act) PESA.

19.Inclusion of tribal and Panchayat representatives for planning of money

allocated in the District Minerals Fund and TSP.

Tribal Governance and Administration

20.As per para 2 of 5th Schedule of the constitution, the state government or

for that matter the Governor, as the head of the state directly holds the

executive power over the schedule areas. So a special cell dealing with

schedule areas and schedule tribes be put in place in the office of the

Governor.

21.As per para 3 of the 5th Schedule of the constitution the governor should

dispatch an annual report or a report as when required by the president of

India to the President concerning the state of affairs prevailing in

Schedule Areas. But it’s a matter of great regret neither the STs nor the

public at large are the know of such reports if any being sent to President

of India ever since the proclamations of the constitutions. It’s therefore

earnestly urged that the governor should himself ensure timely preparation

and dispatch of such constitutionally mandatory reports and also their

wide scale circulation among the Sts in particular and public in general.

22.Ensure a strong functioning of Tribal Advisory Council (TAC) of the state

which has become defunct.

23.Establishment of a Tribal Commission in Odisha for monitoring the issues

and problems of tribals in the state in view of ensuring their development

with dignity.

24.Establishment of the Autonomous District Councils (ADCs) as per the 5th

Schedule of the Constitution. These councils should be been given

Legislative, Administrative and Judicial powers. No law of the Centre or

the State in respect of the legislative powers conferred on the Autonomous

District Councils could be extended to those areas without their prior

approval. The district councils should be empowered to constitute Village

councils and also Village courts.Establish district level councils for

Adivasis in the line of autonomous district councils as specified in the 6 th

schedule of the Constitution, i.e., in North-East states of India.

25.Implement the recommendations of Report of the High Level Committee

on Socio-Economic, Health and Educational status of tribal communities

of India, Ministry of Tribal Affairs, Government of India May, 2014 with-

out delay. The Committee was mandated to prepare a position paper on

the present socio-economic, health and educational status of STs, and is

expected to suggest policy initiatives as well as effective outcome-ori-

ented measures to improve development indices and strengthen public ser-

vice delivery to the Scheduled Tribes.

26.Tribal traditional food like millets should be included in the PDS across

the state.

27.Take stern action against the traffickers of tribal girls to cities. Take

immediate action to bring back all the tribal girls who have been

trafficked, ensure their safety in the place of destination and make a

roadmap for their employment in their place of origin so that they and

their parents do not fall prey to the allurements of making quick money in

cities.

28. A drastic revision of the extend and boundaries of the schedule areas in

Odisha is required as per para 6 and 7th of 5th Schedule to the constitution.

29.Update the lists of the schedule tribes under the article of the 342 of the

constitution and as per the PESA 4 (n) – revision of the boundaries of 5 th

Schedule areas as per para 6 and 7 of 5th Schedule. Besides the state tribe

advisory council and governor should recommend to the president of India

for covering certain tribes as Jhodia, Kanda Dora, other adivasi

communities in the lists of the ST of the article 342 of the constitution .

30.In view of the fact that the Right To Education Act 2009 recognizes right

of every child to elementary education in his / her mother tongue which is

so far denied to the children in schedule areas, the government of Odisha

should immediately ensure its implementation.

31.An exhaustive inventory of the tribal languages are be built up and the

entire gamut of oral traditions to be given written form in different Indian

languages.

32.To address the problem of low representation of the tribals in higher

education, it is necessary to refurbish primary and secondary school

education through special coaching.

33.Institutions of ITDAs/ITDPs and micro-projects support to the tribal

schools should be strengthened for prevention of dropouts

34.The Government of India should ratify ILO Convention No. 169 on In-

digenous Peoples.

35.United Nations Declaration on the Rights of Indigenous Peoples 2007

should be effectively implemented.