By Vidya Bhushan Rawat
A Supreme Court bench headed by Justice Arun Mishra has ordered eviction of Adivasis and other forest dwelling communities from the ‘forest’ regions whose claims for entitlement have been rejected by the Forest department. The written copy of the order was made available on February 20th, 2019 which makes things unambiguous and the intent. The court order says :
“The Chief Secretary shall ensure that where the rejection orders have been passed, eviction will be carried out on or before the next date of hearing. In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court. Let Forest Survey of India (FSI) make a satellite survey and place on record the encroachment positions and also state the positions after the eviction as far as possible.”
The court asked the affidavits to be filed by July 12th, 2019.
The language used is not only harsh but look as if all the ‘rejected’ claims are ‘encroachers’. This is because the government, who should have defended the law, remained conspicuously silent on the issue thus endangering the lives and livelihood of over two million Adivasis and other forest dwellers. The court has perhaps already come to the conclusion that all the Adivasis are encroachers and must be evicted and it want to see the satellite images.
Forest Rights Act 2006 came into effect after much of the campaign and hard work of the organisations and activists who persistently campaigned for it to undo the historical wrongs perpetuated on the Adivasi and other forest dwelling communities predominantly Dalits, nomads and pastoralists.
It is a well-known fact that Forest Departments in the states and the environmental lobby has been creating huge obstacles towards implementation of the Forest Rights Act, which came into being after massive public efforts as well as pressure from the adivasi organisations who faced the brutality of the police and administration as most of the time they have been declared encroachers in their own land.
The problem was not merely rejection of claims under the flimsy ground but deliberate attempt to deny people right over it. It is not that the poor are running from urban areas to forest areas to get the land. While the law was enacted not only to provide justice to the Adivasis, of technically, what we call, Scheduled Tribes but also
Background:
This case was related to the order of a three judge bench headed by Justice Madan Lokur, Justice Kurian Joseph and Justice Deepak Gupta, on March 7th, 2018. The court made certain observation related to the old order suggesting that enough time has got lapsed and hence a new order was needed and therefore, it asked the state to file those in particular time period.
The issues before the court were:
- Immediate removal of ‘forest dwellers’ who they termed as ‘encroachers’. The entire premise is that due to FRA-2006, a huge number of bogus claims have been applied for and therefore they need to be ejected out of the forest zones.
- They challenge the Forest Rights Act 2006, suggesting that Indian Forest Act and Wild Life Protection Act provide enough protection to forest dwellers and that the spirit of the Forest Right act actually violate the Forest laws and its management.
- Recognition of the Rights should only be decided by the officials and Gram Sabha must not have any power as it is an unskilled body.
Who can be the petitioners in this case who are determined to destroy the peace and tranquility on our forest zones and who feel that the Adivasis are the threat to our environment and ecology. Worldover, institutions and governments have realized that the best way to protect the pending climate crisis is to allow the indigenous communities live their way and follow the same pattern to protect our wild life and environment. But here in India, there are former Forest Officials, Ex Zamindars and a few wild life organisations who rarely spoke against the bigs resorts and eco-tourism being promoted in these forest zones by the big corporations but want to get the Adivasis declared as encroachers in their own land.
Following is the Supreme Court order on March 7th, 2018
“We have been informed that most State Governments have filed affidavits in compliance with the order of 29.01.2016 but some of them have not filed any affidavit of compliance. Be that as it may, whatever information has been supplied pursuant to our order dated 29.01.2016 is about two years old. This outdated information may not assist us in disposal of the present batch of writ
petitions and transferred cases.
Under the circumstances, we issue a fresh direction to all the State Governments to file a tabular statement in the form of an affidavit indicating the following:-
(i) The number of claims for the grant of land under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;
(ii) The claims should be divided into claims made by the Scheduled Tribes and separately by other traditional forest dwellers;
(iii) The number of claims rejected by the State Government in respect of each category;
(iv) The extent of land over which such claims were made and rejected in respect of each of the two categories;
(v) Action taken against those claimants whose claims have been rejected;
(vi) The status of eviction of those claimants whose claims have been rejected and the total extent of area from which they have been evicted;
(vii) The extent of the area in respect of which eviction has not yet taken place in respect of rejected claims.
The cut-off date for providing this information is 31.12.2017.
There is no dearth of lawyers to fight the cases for ‘environment’ and wild life which can be seen in the list of lawyers appearing on behalf of the organisations. It also shows how powerful these organisations are in terms of money, contact and influence. It was shockingly that there was no representation from the Central government and the Ministry of Environment and Forest, Minstry of Tribal Affairs or National Commission for Scheduled Tribes. It is also questionable as why the Center’s absence was not noticed by the court? Whether any notice was issued to Central Ministry or not though state government made their representation.
In its order the Judges observed that the ‘learned counsel’ for the petitioner challenged the constitutional validity of the Forest Rights Act and Parliament’s authority to enact a law. Shouldn’t then the judges give notice to the MoEF or the Central government to explain thing. Is not it justice denied to India’s 104 million Adivasis. Can the lapse on part of the government condoned or was it deliberate attempt to allow the act to be declared invalid by the court. If the notice was sent to the Central government and it did not appear then the Court’s should have taken it to task but it somewhere ignored their absence.
There was no effort by the Central government or various concerned Ministries and institutions to intervene positively on this issue and it looked as if the government was deliberately interested in getting the FRA defunct so that its own agenda to promote corporatization of the forest is fulfilled.
The Supreme Court in its hearing on February 13th, 2019 actually did not order anything new. It ordered on the basis of the affidavits filed by the state. It did not question states about them when all the states have not done so and many filed very ambiguous replies. Secondly, the court did not bother to ask the presence of the response from the Union Ministry of Environment and Forest or Ministry of Tribal Affairs in this regard. How can it happen that those people who are getting affected through this order do not get any opportunity to be heard violating all the norms of jurisprudence.
Status of Implementation of FRA
An updated status of State-wise implementation of the Act as per information collected till 31st March, 2017, 41,69,982 claims (40,31,557 individual and 1,38,425 community claims) have been filed and 17,91,706 titles (17,28,817 individual and 62,889 community claims) have been distributed. A total of 36,38,234 (87.25%) claims have been disposed of as per the Ministry of Tribal Affairs website but in our opinion these are incorrect figures as most of the state were unable to give correct figures.
According to a report in the Business Standard the total number of claims rejected are 1.89 millions or simply around 19 lakh people. It means that these families will have to be ‘evicted’ from their places as per the Supreme Court order.
But according to The Wire, this number is 19.39 lakh families.
(https://thewire.in/rights/nearly-20-lakh-tribals-vulnerable-to-eviction-thanks-to-sc-order).
These are the data just based on those who have filed claims under the Forest Rights Act but in my opinion the number can exceed far more. One, the Supreme Court order if implemented as it is gives a ‘licence’ to Forest Officials to dislocate the Adivasis and other Forest Dwelling communities. The issues are not merely related to FRA but there are other issues when the Forest Department have not acknowledged the land titles given by the revenue department to people living in villages. This is another crisis which has been deliberately kept open by the government and state governments. In Uttar Pradesh’s Bundelkhand region and Madhya Pradesh, this is a huge crisis because the land titles given to Adivasis and other dwellers many years ago have been rejected by the forest bureaucracy, who claim the land belong to them. Now, between the two departments, it is the rural poor and predominantly the Dalit, Adivasi, OBC who are facing the threat. Now, with this order, the officials have got a handle to exploit the people living there.
There are other issues too. India has deliberately denied many communities their ‘Adivasi’ state. Constitutionally, Adivasis are referred as Scheduled Tribe and not as Indigenous people even when India has ratified UN Declaration on Indigenous People’s Rights which remain ‘unimplementable’ in the absence of a clear guideline and identification of communities. The fact is that in all our political and social parlance, adivasis are known as Indigenous people but we do not want to accept it legally because it will create ‘hurdles’ for the cronies who want to suck our vast natural resources for their private profit.
The fact is that the data compiled by Ministry of Tribal Affairs is actually based on the application for claims and their subsequent rejection but the fact of the matter is that the Ministry itself has accepted that in many states the process has not even started. In almost all the states, the process has been deliberately delayed by the forest department. Uttarakhand, Uttar Pradesh, West Bengal, Bihar have shown least respect for bringing people into the ambit of Forest Rights Act.
A report about the FRA implementation in the environmental magazine, Down to Earth says, ‘“Latest data compiled by MoTA on the implementation of FRA till November 30, 2018, shows that there have been more claims rejected than the number of claims for which title deed distributed. Of the approximately 42.24 lakh claims — both, individual and community-filed — so far, around 18.94 claims have been given title deeds, while around 19.39 claims have been rejected.”
(https://www.downtoearth.org.in/news/forests/does-the-supreme-court-mean-eviction-of-forest-dwellers-right-away–63315)
Diversion of Forest Land and dilution of laws to enable the private corporations to exploit it
What is happening today in the country can be understood as how the government is diversifying the forest land. Apart from the crony wild life groups that cares little for human lives, there are others who are jumping in the bandwagon of agro forestry and afforestation process as if the entire thing cannot happen with the support and participation of the communities living there for centuries. After the Modi government assumed power, it diluted the norms to allow the forest land diverted for commercial use for the profiteering of the crony companies. The Forest Rights Act section 12 gives Gram Sabhas powers to reject the suggestions and recommendations of ‘expert’ ‘committees’ but in the ‘rejection’ of the claims, it is the dominance of the Forest Bureaucracy which has dominated the events but still the petitioners in the Supreme Court insist removal of this power of Gram Sabha as if they don’t know the issue.
The fact is that in the past four years, the corporations have opposed the clause ‘consent’ of the communities for Land Acquisition for which the government went out of its way to bring out ‘ordinances’ despite its failure to get that passed in Rajya Sahba several times. Similar thing is happening now when the ‘environmental’ lobby never went to the court asking how much forest land has been diverted for the mining and other non-forest purposes. The forest range for Adivasis and other communities is shrinking as while the government continue to give land to companies as well as for Wild Life Sanctuaries, Tiger Reserve and other such things which are being exploited by the ‘Eco-tourists’, we have not heard any protest by these groups.
A detailed report of how Forest Land has been diverted for the non-forest purposes was tabled in Parliament in December 2018. ‘ “According to the official data revealed by the National Democratic Alliance government in Parliament in December 2018, a total of 20,314.12 hectares of forest land (almost the size of Kolkata) was diverted in three years 2015-2018 (till December 13, 2018). During this period, the ministry had received a total of 4,552 proposals and of those 1,280 (28.11%) got approved. According to information revealed in the Parliament, Telangana topped the list with 5,137.38 hectares of forest land diverted, followed by Madhya Pradesh with 4,093.38 hectares and Odisha with 3,386.67 hectares of forest area diverted. The three states together account for over 62% (12,617.43 hectares) of the total forest land diverted during the said three-year period. With close to 70.82 million hectares of forest area, about 21.54% of India’s land is under forest cover. According to another set of data of the environment ministry, since the enactment of the Forest Conservation Act 1980, nearly four decades ago, a total of about 1.51 million hectares has been diverted for 27,144 projects. To put it in perspective, it means forest land equivalent to over ten times the size of India’s national capital has been diverted in the last four decades for various kind of developmental projects.”
Role of Ministry of Tribal Affairs and National Commission for Scheduled Tribes
There are about 617 Protected Areas including 50 Tiger Reserves in India as per information available and ironically more than 70% is invested in Tiger preservation while the rest 567 protected areas are getting a meager 30% of the total budget allocated for the purpose.
In February 2018, the National Commission for Scheduled Tribe wrote a letter to Ministry of Environment and Forest that any displacement of tribal from Protected Zones and Tiger Reserves under the Wild Life Act, violate the Forest Rights Acts and rights of the communities living there and must be stopped unless a fair compensation of Rupees Twenty Lakh and four hectare of land is granted prior to the beginning of the project. According to The Economic Times, the Commission had formed a three member committee to look into these particular issues.
We don’t know whether this committee ever reported but given the nature of these commissions post 2014, nothing substantial can be expected from them. Most of the reports and interventions on important adivasis matters happened before 2013. At the moment, when the Ministry of Environment and Forest has become facilitator for the big corporate interests, it was the duty of the Ministry of Tribal Affairs to have intervened in the cases but nothing was heard from it. The National Commission for Scheduled Tribe too remained quiet. Now the situation has turned serious and need immediate intervention but will the Supreme Court listen to this unless a serious attempt is made and seek a bigger bench to resolve the issue.
Need a white paper on Adivasis of India
The fact is that the number of Adivasis dislocated from their natural habitat because of various developmental and other projects is estimated to be around 11.5 million for the period between 1950 to 1990 and this was pretty moderate. The situation is much worst now in the aftermath of the globalization and economic liberalization process hence a white paper on Adivasis is now required which can give the whole picture of how much we have protected their rights or betrayed them. Post 1990s when India embraced the ‘liberal’ economic policies that had nothing liberal but more greed of the corporate sector to grab the vast natural resources so well protected by the Adivasis and other forest dwelling communities. The big dams, wild life, Protected Zones, Tiger Projects, Mining, Eco Zones have been the ‘new developmental’ module for the 21st century India which are necessarily made on the destruction of the adivasi culture and life. This has created an enormous crisis of civilization when indigenous resistance is being criminalized and plunder of these regions have been legalized.
The protests by the Adivasis against their displacement without any honorable rehabilitation has been resisted by the states who have bended their rules to benefit the crony corporate. Laws have been changed, altered and diluted in states like Jharkhand, Chhattishgarh and Odisha to enable these companies to easily acquire land despite people’s protest. In another way, the adivasis zones have been militarized and those protesting against this are targeted and criminalized. The number of Adivasis in Indian jails is substantially high and languishing for long.
The political participation of the community remained the least and now the reservation meant for them in the government services along with the scheduled castes is attacked. Tribal population in India is about 104 million as per 2011 census which is 8.6% of our total population but their percentage in the government services remain far below. Now, with 10% quota for the upper caste ‘poor’ and a new system of appointment in the academic institutions and universities, the savarna leaders of India have ensured that the percentage of adivasis dip further in all our representative bodies and institutions. The courts in India have not brought themselves to glory with recent judgments and orders related to the Dalits and Adivasis whether they are about reservations in government services or access to land and other natural resources.
The fact is scheduled tribes in India must get all the benefits as per the UN Declaration on Indigenous People’s Rights though government of India that time did not accept that there are any particular communities as indigenous existed in India. This is definitely a deliberate ploy to deny adivasis their legitimate rights over the forest and other natural resources. The UNDIPR gives indigenous people autonomy on their land which is resisted by most of the governments but it has been explained in the documents that the ‘sovereignty ’ issue not meant as ceding from the nation state but honoring indigenous people’s autonomy within the nation state.
It is time when Supreme Court and High Courts must fix up specific benches to deal with the issues of Dalits and Adivasis and those judges should be appointed to hear these cases who have a track record of understanding the issue. These are social justice issues and government cannot allow them to be dealt in a casual way giving free license to corporate sponsored environment lobby to legally destroy the livelihood and culture of the adivasis who need justice and honor historically denied to them by us. Will our courts rise upto the occasion to be the defender of social justice and human rights of the people or will they simply go by the corporate lobby terming the Adivasis as encroachers in their own land ? Will the courts take the political leadership to task for failing in its duty to protect the rights of India’s indigenous people in need of support and justice from the institutions and the state. An insensitive decision can create chaos and anarchy in the peaceful Adivasi zones which will only be detrimental for our national interests.
