On February 28 the Supreme Court (SC) put on hold its February 13 order directing states to evict tribals and other forest-dwellers whose claims for land titles under the Forest Rights Act, 2006 (FRA) have been rejected. The SC is hearing a batch of petitions filed eleven year ago by the forest conservation groups including Wildlife First, Nature Conservation Society and Tiger Research and Conservation Trust challenging the constitutional validity of the FRA. In their submissions they have blamed the Act for deforestation and encroachment of forest lands. They have been arguing that the rejection of a claim under FRA implies that the claimant is an encroacher and not a bona fide forest dweller and should be driven out of forests. In the light of the provisions of the FRA the claim of petitioners that all those whose cases have been rejected are encroachers is not only problematic but also unfortunate.
Ironically when the SC had passed the eviction order the Central Government did not put up its attorney to counter the claim of the conservation groups. The Centre rather first preferred to watch the developments silently from the sidelines. It was only after nationwide public outcry, in a last ditch effort to control the damage caused by this, the Centre moved an application to the apex court seeking a modification of its eviction order arguing that in most cases states have summarily rejected the claims of tribal people without following the due process. The Centre also pointed out that in many cases the rejection orders were not communicated or the same were without reasons. In certain cases eviction orders are issued even before the appeals under the Act were exhausted.
In fact the problem of the tribal people started soon after the British government decided to monopolise the state control on forests traditionally inhabited by them since generations to meet out its commercial interests. The independent India also did not pay any attention to the rights of tribal people for a long period of time until FRA was enacted in 2006 after a prolonged struggle with an object to recognize the rights in “forest dwelling Scheduled Tribes” (FDST) and “other traditional forest dwellers” (OTFDs) who have been residing in forests for generations but whose rights have not been recorded.
Before the enactment of the FRA we erroneously continue to believe that the goals of environmental protection and recognition of the rights of tribal communities were mutually irreconcilable. We labeled them ‘encroachers’ and ‘illegal migrants’ leading to their perpetual alienation and insecurity. The threat of eviction constantly loomed large over them.
It was against this backdrop the FRA was made as an attempt to remedy the historical injustice to the tribal people and traditional forest dwellers and prevent their alienation from their lands. The FRA adopted a unique approach and sought to strengthen the conservation regime of the forests without compromising the livelihood and food security of the forest dwellers by considering them integral to the very survival and sustainability of the forest ecosystem.
The FRA not only recognises the rights of forest dwellers over forestland but also their rights over forest resources, including right to own, access, use and dispose of minor forest produce, including bamboo, and also the right to protect, regenerate, conserve or manage forest resources of their area as community forest resources for sustainable use. The FRA further recognizes the right of the communities living in the forest settlement villages to get their villages converted to revenue villages and lands held by them to revenue lands.
The FRA provides a three-tier system for processing claims of the forest dwellers which are first submitted and processed at the Gram Sabha level which after verification passes a resolution of recommendation of approval or rejection and forwards them to the Sub-Divisional Level Committee (SDLC) for further action, which, after examination forwards them to the District Level Committee (DLC). Though FRA seeks to emphasise the role of peoples’ representatives in decision making process but practically at most stages bureaucrats play the deciding role. The panchayat representatives with little knowledge about the procedures barely speak in the meetings.
All the claims under FRA must be accompanied by at least any two evidences specified in Rule 13. Most importantly the FRA does not insist upon any particular form of documentary evidence to prove the claim as the same has been declared illegal by the Gujarat High Court in Arch Vahini vs. State of Gujarat & Ors. Even oral statements are admissible to establish three generations of existence as required under the law. But unfortunately in some areas where corporate and developmental interests are involved the determination process is not being carried out honestly. In many states like Gujarat and Maharashtra, claims have been rejected due to the lack of satellite imagery. Jharkhand and Himachal Pradesh have refused to accept applications by Other Traditional Forest Dwellers
Most importantly the FRA provides safeguards against arbitrary eviction. There is a due process for appeals as laid down by Section 4(5) of the FRA which specifically stipulates that no member of a forest dwelling Scheduled Tribe or other traditional forest dwellers shall be evicted or removed from the forest land under his occupation till the process of recognition and vesting of forest rights under the Act is complete. It also recognizes the rights of forest dwellers to a due compensation in case of eventuality of displacement in cases where even after recognition of rights, a forest area is to be declared as inviolate for wildlife conservation or diverted for any other purpose.
The Apex Court in its stay order, however, clarified that “the mighty and the undeserving” who had encroached on forest lands, would not be shown any mercy. It also asked States to file an affidavit detailing the steps taken on rejections of the tribals’ claims. It also decided to examine whether due process had been followed by the Gram Sabhas and the State authorities under the FRA before the claims of the forest dwellers were finally rejected.
The current crisis seems to be the outcome of the apathy and insensitivity of the both state and central governments and misguided approach of the conservation groups that granting forest rights to tribal people would pose a huge threat to biodiversity. The conservation groups completely ignore the role of tribal people in protecting and conserving the forests. It would be total travesty of justice if the original forest-dwelling tribal people are evicted from their homelands in the name of conserving the forests or saving the environment. The FRA is a well meaning legislation but poorly implemented.
The writer is a Professor of Political Science at Aligarh Muslim University, Aligarh.