Tribal Habitats: Who a Forest Dweller Is

In one line

Two classes of person, one of them defined by seventy-five years of residence, and a definition of habitat that is not a definition of land.

In the wording a student can write in an exam: "forest dwelling Scheduled Tribes" means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs, including Scheduled Tribe pastoralist communities; and "other traditional forest dweller" means any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depends on the forest or forest land for bona fide livelihood needs, the Explanation providing that "generation" means a period comprising of twenty-five years.

The two classes

Section 1 gives the short title, extends the Act to the whole of India except the State of Jammu and Kashmir as it then was, and provides for its commencement on a notified date. The name is long and should be written once in full: the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and every word of that title is doing work.

The Scheduled Tribe forest dweller, section 2(c). Two tests, both of which must be satisfied: he must primarily reside in the forest or forest land, and he must depend on it for bona fide livelihood needs. Pastoralist communities of the Scheduled Tribes are included in terms, which matters because a pastoralist does not reside in one place.

The other traditional forest dweller, section 2(o). The same two tests, and a third: he must have satisfied them for at least three generations prior to 13 December 2005, and a generation is twenty-five years. So the requirement is seventy-five years of primary residence and dependence, ending on the day the Bill was introduced in Parliament.

That is the hardest evidentiary burden in Indian resource law, and it is the reason the great majority of claims allowed under the Act are by Scheduled Tribes rather than by other traditional forest dwellers. A non-tribal must prove what his grandfather's father was doing.

And it is the reason the date matters. 13 December 2005 fixes the cut-off for both the three-generation calculation and, under section 4(3), for occupation of forest land.

Habitat, and why it is not land

Section 2(h): "habitat" includes the area comprising the customary habitat and such other habitats in reserved forests and protected forests of primitive tribal groups and pre-agricultural communities and other forest dwelling Scheduled Tribes.

Read what that definition does. It is not a definition of a plot; it is a definition of the area a community uses, including areas inside reserved and protected forests, and it names primitive tribal groups and pre-agricultural communities specifically. A right over a habitat is therefore a right over a territory rather than over a survey number, and section 3(1)(e) turns it into a right.