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FRA has struggled to recognize the comprehensive rights of vulnerable and voiceless groups. Judicial scrutiny could open the doors for communities where the law has not been implemented in letter and spirit.

13th February 2019 was a historic day for Scheduled Tribes (ST) and traditional forest dwellers in India because of an order passed pertaining to The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). A decade-old legal battle in the Supreme Court pertained to the issue of the forest, ST and other traditional forest dwellers (OTFD). These people form part of marginalized groups in India on several social indicators. Poverty and forest maps overlap each other. Like general apathy faced by these groups, their representation by the governments in the Supreme Court had also been not forthcoming. Considering the large scale consequences of the matter, some political parties and CSO had written a few months raising concerns of no strong defence of the law and therefore had requested the Ministry of Tribal Affairs to appoint renowned lawyers to put up a strong defence of the law in the Supreme Court. Ultimately, the government is expected to be the protector of FRA enacted by the Indian parliament to undo the historical injustice. But it seems again that it preferred to look away and the Gram Sabhas had no occasion to respond in this legal battle. Finally, in this seemingly lopsided legal battle came the historical order of the Supreme Court on 13th February, 2019. Suddenly passive and apathetic governments were shaken from their deep slumber and showed to present as the first guardian of the marginalized groups. It is no difficult to observe this behaviour in the election season. But what emerged from the melee is a great hope to undo the historical injustice.

What followed public outrage and the fear of eviction post 13th February 2019 order led the same agencies to approach the Supreme Court with a prayer to stay its order. It is to be noted that it was the points raised in these petitions which inflicted self-scrutiny on the governments. It was unprecedented to observe submissions on two occasions. The earlier one was with only numbers of rejected claims without questioning the process itself. And the second instance was raising questions on the state’s own action. In this lies the approach for undoing historical injustice of the vulnerable groups. The stay order of 28th February raises many questions worth pondering upon, expresses apprehension on the vulnerability of ST and delves much deeper in the process of implementation of one of the complex rights-based legislation. This scrutiny by none other than the Apex Court holds the hope for undoing historical injustice of the ST and OTFDs, but it could be a beginning of a long process needing patience.

Why voice of Gram Sabhas absent in the present litigation?   

Acceptance of the government’s submission on the process of rights recognition anchored by the Gram Sabhas undermines the authority granted to the Gram Sabhas by the Act itself. Section 6(1) of the Act vests authority at the Gram Sabha level to initiate the process, surprisingly no Gram Sabha seems to be a respondent in the current petition. Should not Gram Sabhas be allowed to respond to this legal scrutiny because they are the title holder of CFR? Can we afford the submission of the state to become final when habitat rights of vulnerable groups like PVTG are involved who deserve special treatment? These are some of the questions we need to consider before rendering finality to the present litigation. It could be argued that introducing window for Gram Sabhas at this stage of litigation would complicate the matter by many folds. But then the question concerns the rights of millions of people from vulnerable groups for whom several Constitutional safeguards exist. We need to think about some mechanism to hear them out.

The FRA puts the onus of implementation on the state government. Its Rule (6) makes Sub Division Level Committee (SDLC) responsible for dissemination of information to each Gram Sabha. A simple test of verifying to what extent Gram Sabhas are formally informed about various provisions of the law would show how the duties are discharged under this law.

Role of Civil Society is Crucial

We see a strong presence of civil society organizations supporting FRA implementation process wherever some rights are being recognized. It is natural that most of the Gram Sabhas representatives lack formal skills to complete the complex IFR/CFR application form filling process annexed with stipulated documents. In the absence of proper facilitating agencies, the complex process would face many bureaucratic hassles. As a PMRDF in Gadchiroli, I have seen this process closely and therefore vouch for the mentioned aspects. In Gadchiroli district, it was active civil society organizations (CSO) which led the historical process of recognizing CFR in India leading to first Community Forest Rights (CFR) recognition of Mendha Lekha village. In the absence of CSO, the advocacy remained unproductive, and the village communities would remain unaware about the legal provisions.

Inconsistencies in laws

Since the enactment of FRA in 2006, some states have come up with state-specific policies which in some form interact with the rights recognized under FRA. For examples in Maharashtra, Village Forest Rules 2014 were introduced. These Rules tried to arrive at some arrangements with village communities on the issue of forest management with the dominant role of the Forest Department. Such contradictions led to the exchange of letters between Central Ministries and the state forest department. Other states also seem to have issued similar kind of rules which could contradict with the scheme envisaged with the FRA. These inconsistencies could be primary challenges to the realization of policy framework laid down by the Indian Parliament in the FRA.  Current Supreme Court scrutiny could identify these inconsistencies to ensure the undoing of historical injustice.

What would be presented by the state governments in the next hearing would further allow discourse on laws like PESA 1996, Constitutional safeguards for the ST and special Constitutional provisions in the Scheduled Area.”

Santosh Gedam, Doctoral Student, Public Systems Group, Indian Institute of Management Ahmedabad

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