TRIBAL and other forest-dwelling communities constitute 8 per cent of India’s population. Rapid urbanisation and the push for mega projects have, over the years, limited their access to land and natural resources. Already marginalised, they now face the threat of eviction from their homes, thanks to the the Narendra Modi government’s inaction when a key case involving their rights came up for hearing before a three-judge bench in the Supreme Court on February 13.

The bench, comprising Justices Arun Mishra, Navin Sinha and Indira Banerjee, ordered the forced eviction of more than 11 lakh tribal and other forest-dwelling households from forest lands in 16 States. The Centre's counsel was not present to express its reservations over the order. Although the same bench kept its order in abeyance on February 28 owing to concerns expressed by the Centre, the prospect of the stay being lifted by the court at a future date hangs like a sword of Damocles over the forest dwellers.

The reason for the February 13 order was that the claims of forest dwellers over forest land had been rejected by the respective State governments under the Forest Rights Act (FRA), or the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The FRA recognises pre-existing forest rights, and only those people in actual occupation of forest land as on December 13, 2005, are eligible as per the law. People belonging to the other traditional forest dwellers (OTFDs) category, who form the bulk of the claims, have to establish continuous 75-year occupation for eligibility.

After the enactment of the FRA, according to a September 2018 statement of the Ministry of Tribal Affairs (MoTA), 42 lakh claims over forest lands, including tracts within national parks and sanctuaries, were filed by tribal people and OTFDs. According to Conservation India, an analysis of the official data reveals that a total of 18,89,835 titles have been granted and 72,23,132 hectares, or 72,000 square kilometres, of public forest land (almost the size of Assam) have been granted and converted into individual and community ownership in bits and pieces across the country.

The petitioners argued that apart from loss of forests, granting wide-ranging rights in scattered parcels of forest land was having a deleterious impact in the form of habitat fragmentation or breaking up of large forest blocks into smaller pieces. Fragmentation, they said, had been scientifically established as the most serious threat to long-term conservation of forests and biodiversity. The petitioners contended that in order to protect national parks and sanctuaries, which were sensitive habitats of highly endangered wildlife and which covered less than 5 per cent of India’s landscape, one salutary clause was included in the FRA. That, they argued, provided for notification of national parks and sanctuaries as Critical Wildlife Habitats from where people could be resettled. Shockingly, although over 72 lakh ha of forest land had been granted under the FRA since 2008, not one hectare of Critical Wildlife Habitat had been notified as yet, they submitted.

Retired forest officials from Andhra Pradesh, Odisha, Maharashtra, and Karnataka, along with conservation organisations such as the Wildlife Trust of India, the Nature Conservation Society, the Tiger Research and Conservation Trust and the Bombay Natural History Society, filed nine cases in courts. Their plea is to get the FRA and orders under it struck down as unconstitutional.

The court fixed July 24 as the deadline for the 16 State governments to comply with its February 13 eviction order. The bench warned them that non-compliance with the order would be viewed seriously. Each of the 16 States—Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa, Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Maharashtra, Odisha, Rajasthan, Tamil Nadu, Telangana and Tripura —was asked to file affidavits as to why after the rejection of the claims, which had attained finality, eviction had not been made. The bench had also directed the Forest Survey of India (FSI) to make a satellite survey and place on record the encroachment positions and also state the positions after the eviction as far as possible. On February 28, the States were asked to file an affidavit by July 10, to explain the procedure they adopted to reject the claims of forest dwellers.

Perturbed by reports of unrest among forest dwellers following the February 13 order, the Centre quickly moved the bench with a plea to keep its order in abeyance, pending review of the rejected claims by the respective State governments.

On February 28, the Centre offered no explanation to the court for its inaction during the previous hearing of the case. The Solicitor General, Tushar Mehta, representing the Centre, explained the coexistence of forest dwellers with the natural habitat for centuries, as if the Centre became aware of this phenomenon only recently.

The unstated reason was, of course, the forthcoming general election and the reluctance of the Central government to risk alienation of a large section of people living on forest margins, which could tilt the scales against it in a closely fought election. Couching its intentions, the Centre pleaded that the February 13 order “caused serious prejudice to several people’s lives”.

The Centre’s counsel told the court that forest dwellers were not aware of the appellate jurisdiction they were entitled to following the rejection of their claims. “There was no single speaking order of rejection of their claims,” counsel told the court. All the orders carried just one word, “rejected”, he said. The absence of “speaking orders” means that forest dwellers are not aware of the grounds for the rejection of their claims to forest land. Knowing the reasons for the rejection would enable them to rebut them invoking the appellate remedy. That the rejection orders were not served on forest dwellers individually was another ground of attack on the so-called non-compliance with the eviction orders served by the authorities earlier.

Accepting the Centre’s plea, the bench observed that there was a need to check if gram sabhas and the State authorities followed due process stipulated under the FRA while dealing with the claims. The bench asked the States to respond to allegations of high rates of rejections, non-communication of rejection orders to the affected people, lack of reasoning in the rejection orders and rejection on frivolous and extraneous grounds.

Natural justice

According to the Centre’s guidelines, if a claim is rejected, the claimant has to be informed about the reasons for the rejection, and he or she would then have 90 days to appeal against it. Provision of reasonable opportunity to the households being asked to vacate the forest land to refute the cited grounds for eviction is part of natural justice; it is inexplicable how the States, the Centre and the Supreme Court overlooked it while ordering eviction of forest dwellers, whose claims might have been rejected without valid reasons.

The nodal Ministry for the implementation of the FRA, the Union Ministry of Tribal Affairs (MoTA), publishes monthly updates on the status of implementation of the Act on its website. For the period ending November 30, 2018 (for which the latest figures were available), the Ministry stated that 42,24,951 claims (40,76,606 individual and 1,48,345 community claims) had been filed and 18,94,225 titles (18,22,161 individual and 72,064 community claims) distributed. A total of 38,33,456 (90.73 per cent) claims had been disposed of, the Ministry claimed. A total of 19,39,231 claims had been rejected, of which 18,92,893 were individual claims while 46,338 were community claims.

Of these, Chhattisgarh topped the list with 4,62,403 rejections, followed by Madhya Pradesh with 3,62,024 rejections. Maharashtra and Odisha came next with 2,28,116 and 1,46,525 rejections respectively. Interestingly, none of the “rogue” States—claiming a high number of rejection of claims—had responded under the column, “Problems/Remarks”, giving the reasons for the high number of rejections.

The States give cumulative data to the MoTA on the rejections at the level of the gram sabha, the subdivisional level committee (SDLC) or the district level committee (DLC), the three hierarchical layers of the rejection process, starting from the gram sabha. The data uploaded on the MoTA’s website are exclusive of the rejections after the process of appeal. The claims can be rejected at any of the three levels, but the claimant can appeal to the next level. A rejection by DLCs can be challenged in a court of law. Most people whose claims had been rejected have not gone for appeal, perhaps for reasons such as ignorance of law and the nature of evidence that they can submit to substantiate their claims. There is apparently a high rate of rejection at the gram sabha level, for which no reasons are forthcoming.

The MoTA had expressed its concern, after the Supreme Court’s similar order seeking eviction of households, whose claims were rejected, on March 7, 2018. The Ministry stated that it had come to its notice that the State forest authorities moved immediately to evict people whose claims under the FRA had been rejected, without waiting for a decision on review or appeal or allowing time for filling appeal/review, ostensibly under the March 7, 2018, order of the Supreme Court. “Such an action, while depriving the aggrieved persons the opportunity to prefer appeal before the SDLC or the DLC violated the spirit of the FRA, 2006, besides creating grounds for unrest and agitation and also fuelled extremism,” the MoTA had observed.

Letters by the Ministry to the State governments on September 12, 2014, and April 10, 2015, question their high rate of rejection of claims. “There is a need to have a relook into the cases of doubtful rejections so that any rightful claim does not get denied,” the Centre said, adding that the high rejection rate of the claims of the OTFDs (those who are not Scheduled Tribes) in left-wing extremism-affected areas, owing to the wrong interpretation of the FRA's provisions, is a matter of concern. Therefore, the Centre’s silence during the February 13 hearing of the case is intriguing, notwithstanding its attempt to make amends on February 28.

On February 4, leaders of the Communist Party of India, the Communist Party of India (Marxist) and the Congress, along with two platforms of Adivasis and forest dwellers’ movements, sent a letter to the MoTA about its failure to defend the historic and landmark FRA in the Supreme Court.

The petitioners have challenged the constitutional validity of the Act as well as the competence of Parliament to enact the law. They submitted that steps should be taken to evict those whose claims had been rejected as they were encroachers. The petitioners have alerted the court that they might request a performance audit by the Comptroller and Auditor General of India or by any other appropriate authority. Their concern, they claim, is to preserve the forest and wildlife of the country, which is in a critical state.

When the FRA was enacted in 2006, it was hailed as an emancipatory law that would uphold the rights and entitlements of marginalised communities. By recognising the rights of communities over forests and natural resources that they had traditionally accessed and by giving them the right to manage, use, protect, and conserve their habitat/forests, the FRA had the potential to radically transform the governance and conservation of forests by shifting their control from the States to communities.

However, despite its intention and potential, the implementation of the FRA has seemingly failed to achieve the tasks and objectives it set out to do. Many States lack awareness of the provisions of the Act and are reluctant to recognise it. States that have implemented the Act have largely focussed on granting individual forest rights (in contrast to grant of community forest rights) mostly as a strategy to generate popular and political support. According to observers, the situation becomes more serious owing to the economic and developmental policies of subsequent governments that have been pushing for diversion of forest land for mining, industrial corridors and other mega projects.

As per one estimate, since the enactment of the FRA, 2,04,000 ha of forest land has been diverted for development projects. Most of the diversions have taken place without compliance with the Act or the consent of gram sabhas. A joint committee report by the Ministry of Environment, Forest and Climate Change and the MoTA in 2010 acknowledges this. The diversions have often led to violent conflicts with the State administration, further aggravating violations of human rights of these communities.

The petitioners and the forest dwellers facing eviction share a common interest in safeguarding forest land from diversion for mega projects of big corporations often in collusion with the State governments and the Centre. It is in the interest of both to ensure that the eviction of forest dwellers does not take place without due process.