Prof. V.P. Gupta,Director, Rau’s IAS Study Circle, New Delhi – Jaipur – Bengaluru
This article caters to the Social Justice portion of
General Studies-Paper II and for Essay Paper in
UPSC Main Examination
The Supreme Court’s order to evict occupants of forest lands who failed to make a successful claim under the Forest Rights Act, 2006, has once again highlighted the dilemma of reconciling inalienable tribal rights with biodiversity conservation.
Note: Recently, the Supreme Court has put on hold its own order.
The Forest Rights Act, 2006, which entitles communities and protects claims over their generational land, has long been a bone of contention. Despite its ambiguities and many opacities, the FRA is a watershed law that entitles tribal land claims and seeks to grant, for the first time, negotiating power to tribal communities.
THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006
What are called “forests” in Indian law often have nothing to do with actual forests. The Indian Forest Act, 1927, India’s main forest law, had nothing to do with conservation. Under it, the areas were often declared to be “government forests” without recording who lived in these areas, what land they were using and what uses they made of the forest. Because of this situation, millions of people are subject to harassment, evictions, etc. on the pretext of being encroachers in their own homes. Torture, bonded labour, extortion of money and sexual assault are all extremely common. The reason why people’s rights were not respected was because The Indian Forest Act, 1927 was created to serve the British need for timber. It sought to override customary rights and forest management systems by declaring forests state property and exploiting their timber.
Post-Independence, the National Forest Policy was adopted, subsequently Community Forest Management Programmes like Joint Forest Management and Community Forest Management Programmes were implemented from 1990 onwards with people’s participation. Till then, there was mistrust about how forests are being managed and people felt alienated especially in forest areas where tribals are living in large numbers.
Post-Independence most of the forests had degraded and when the government started course correction in 1990 onwards we came across the idea of people’s rights over forest land and forest resources.
Basics about Forest Rights Act (FRA)
Aim : The legislation was passed in December 2006 and is concerned with the rights of forest-dwelling communities to land and other resources which was denied to them over decades as a result of the continuance of colonial forest laws in India. Thus, the Act grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the forest laws.
In order to claim eligibility under the Act, the claimant has to prove firstly, primarily residing in forests or forest lands and depending on forests and forest land for a livelihood. Secondly, either the claimant must be a member of the Scheduled Tribes in that area or must have been residing in the forest for 75 years.
There are different rights recognised under the Act which can be summarised as Title rights—i.e. right to ownership to land farmed by tribals or forest dwellers subject to a maximum of 4 hectares, ownership is only for land that is actually being cultivated by the concerned family and no new lands will be granted; Use rights—to minor forest produce (also including ownership), to grazing areas, to pastoralist routes, etc.; Relief and development rights—to rehabilitation in case of illegal eviction or forced displacement and to basic amenities, subject to restrictions for forest protection; and Forest management rights—to protect and conserve forests and wildlife.
The Act provides a transparent three-step procedure for deciding on who gets these rights. First, the Gram Sabha makes a recommendation as to whose rights should be recognised basis on who has been cultivating land for how long, which minor forest produce is collected, etc. The Gram Sabha plays this role because it is a public body where all people participate, and hence is fully democratic and transparent. The Gram Sabha’s recommendation goes through two stages of screening committees at the taluka (Sub-divisional) and District levels. The District level committee makes the final decision. Further at both the levels, the Committees have six members—three government officers and three elected persons (out of them, two have to belong to the Scheduled Tribe). If any person believes his claim has been wrongly rejected, then he can appeal at both the taluka and the district levels. Finally, land recognised under this Act cannot be sold or transferred.
WHAT’S THE ISSUE ?
A case was filed by the Wildlife Group, questioning the validity of the FRA and demanded that the state government should evict all those people whose claims have been rejected under the Act as they are encroachers on the forest land. For both the state-corporation and the environmentalists alike, they find community rights and environmental sustainability mutually exclusive. While the conflict between developmental goals of the state—infrastructure projects, mining, industrial projects—and local forest dwellers has always been predictable, a less acknowledged conflict has been between environmental groups and tribal rights over forest land. The environmental groups are distrustful of the local communities and feel that they will put forest and wildlife at risk for short term gains. They want to have a statist model of conservation—a centralised bureaucratic forest management that would prevent a substantial devolution of powers to communities.
But whatever may be the ideology of the environmentalists, the focus is fixed on the fact that the Supreme Court’s order has left more than 10 lakh tribal people without a land or a recourse. Now the main issue is that the State governments which have been asked to carry out the evictions must respond by quickly determining whether there were procedural lapses that deprived applicants of due process, notably in making appeals. This process may take time, more so in an election year, and the sheer scale of action required would necessitate an extension of the eviction date.
The biggest problem with this decision of eviction is the whole process of making a claim is fraught with many ambiguities and lacunae—How do tribals and OFTDs (other traditional forest-dwellers) prove continuous residence or dependence in the areas being claimed for three generations, that is, 75 years? This would date it back to the colonial period, when most of these areas were under princely states or zamindars, with no survey or land demarcation, and no government records. Second, while oral histories and testimonials from village elders are legally acceptable forms of evidence, the takeover of the claim process by the bureaucracy has resulted in this provision being largely ignored. With what degree of fairness then can the bureaucracy or the Supreme Court, which has adjudicated the one million invalid claims, ascertain that people from deserving communities have not been left out?
The next issue is with regard to finality of claims. Under the Act, claimants can lodge an appeal if their claim has been rejected. But as per various surveys, if a claim is appealed, under the state government’s books, it shows as rejected. However, the apex court has said that its orders are to be applied to cases ‘in which orders have attained finality’. But the ground reality says that even those claims which are at an appeal stage, have been rejected and the forest officials are misusing this to carry out wrong evictions.
Further the claims which have been rejected, majority of them have been done so on flimsy grounds. As per the Xaxa Committee report, it observed that “claims are being rejected without assigning reasons, or based on wrong interpretation of the ‘OTFD’ definition and the ‘dependence’ clause, or simply for lack of evidence or ‘absence of GPS survey’, or because the land is wrongly considered as ‘not forest land’, or because only forest offence receipts are considered as adequate evidence. The rejections are not being communicated to the claimants, and their right to appeal is not being explained to them nor its exercise facilitated.”
The law says, if a claim is rejected, the claimant has to be informed about the reasons for the rejection. Then, the claimant has 90 days to appeal against it. Further, no petition of the aggrieved person shall be disposed of, unless he has been given a reasonable opportunity to present anything in support of his claim. But whether such due process has been followed or not, the data is silent.
All this points out that there is a huge possibility that there might have been various procedural lapses on the part of the government while ascertaining these claims that have led to non-compliance of the due process.
Moving ahead, even if one is to say that the argument of procedural lapses doesn’t hold ground, the major question which arises how, rather on what ground has the Supreme Court ordered evictions ? Does the mere rejection of claims by the state add up to a finding of the crime of “encroachment”? Just because someone is unable to prove their right in that land, are they encroachers?
Surprisingly, under the Act, there is no provision for evicting tribals and forest dwellers. So on basis of what law is such eviction being ordered? Before taking such a major step, the court should have ascertained what process is followed in case of rejection of claims, including communication of reason, opportunity of appeal, and cases where claims are being re-examined due to wrongful rejection.
In the light of all these possible pitfalls and scepticism with regard to the due process, the decision of the Supreme Court to evict millions of tribals seems to be a case of over stepping by the judiciary.
This blatant disregard for the tribals shines brighter in the light of the constitutional paradigm. Importantly, the area marked for eviction falls under areas designated under Schedule V and Schedule VI of the Constitution which talk about special protection to the tribal. The areas under these two schedules have their own separate governance mechanism. The Court has not been able to accommodate the implications of its decision to evict, on this governance mechanism. These schedules provide a non-derogable boundaries to Adivasi homelands and also give the institutional mechanisms that promote autonomy and self-governance for these adivasis. Where will this autonomy and independence go if they are forced out of their homes?
Also, it is not just the governance machinery that will be hampered. This decision goes against the fundamental safeguards provided to the Tribal. The presence of Article 19(5) in the Fundamental Rights chapter of the Constitution, which specifically enjoins the state to make laws “for the protection of the interests of any Scheduled Tribe”, is vital. How has the Supreme Court ordered the eviction in complete disregard of this core and express fundamental right protection to Adivasis, which protects them from a range of state and non-state intrusions in Scheduled Areas as well as from the perennial threat of eviction from their homelands? Is it not the supreme obligation of the Supreme Court to protect the Scheduled Tribes and other vulnerable communities from the grave harms of violent dispossession?
It’s true that today forest areas have shrunk in leaps and bounds and simultaneously, the human pressure on these lands is mounting—landscapes are alienated for resource exploitation, road and dam building, and a lot of wildlife is lost to poaching, man-animal conflict is growing. In these circumstances putting additional pressure on such lands should be avoided but protecting our forest on the cost of the tribals is incorrect, more so because such issues have been created due to the long drawn exploitation of these tribal at the hands of the bureaucracy and the system. Therefore, the solution to such problem does not lie in eviction but in taking a more balanced road – resettlement. In some well-documented cases, such as in the Western Ghats, alternative land and cash compensation convinced tribals to move out of core areas. One example is that of the Nagarahole National Park, where the outcome has been good for both people and wildlife, as evidenced by the recovery of tiger density over three decades. Hence, the State governments need to pursue such programmes in a humane and vigorous fashion and formulate resettlement schemes for tribal residents.