By
Amritananda Chakravorty
In
one of the most regressive and anti-tribal actions, the Supreme Court has dealt
a huge blow to the letter and spirit of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (‘Forest
Rights Act’). On 13th February, 2019, the Supreme Court directed the
16 States to take action against those forest dwellers whose claims under the
Forest Rights Act were rejected, and to evict them. The Court perused the affidavits
filed by the States of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa,
Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh,
Maharashtra, Odisha, Rajasthan, Tamil Nadu, Telangana, Tripura, Uttarakhand,
Uttar Pradesh, West Bengal, and Manipur. It further directed the Chief
Secretaries to ensure that “where the
rejection orders have been passed, eviction will be carried out on or before
the next date of hearing. In cases the eviction is not carried out, as
aforesaid, the matter would be viewed seriously by this Court”. The Court
further noted that “where the
verification/rectification/review process is pending, the concerned State shall
do the needful within four months from todat and report be submitted to this
Court”, and asked the Forest Survey of India (FSI) to do a satellite survey
and put on record the encroachment positions after the eviction as far as
possible.
Almost
20 lakh forest dwellers, including scheduled tribes and other traditional
forest dwellers have been affected by this order, which has sent shock waves
across the country. Besides16 States, other States would also be compelled to
comply with this order. In order to understand the sheer injustice of this
order, one has to go into the history of the present litigation, and why the
Forest Rights Act was passed.
The
Forest Rights Act was enacted in 2006 to recognise and vest the forest rights
and occupation in forest land in forest dwelling Scheduled Tribes and other
traditional forest dwellers who have been residing in such forests for
generations, but whose rights could not be recorded; to provide for a framework
for recording the forest rights so vested and the nature of evidence required
for such recognition and vesting in respect of forest land.
In
fact, the Preamble itelf notes that “the
forest rights on ancestral lands and their habitat were not adequately
recognised in the consolidation of State forests during the colonial period as
well as in independent India resulting in historical injustice to the forest dwelling
Scheduled Tribes and other traditional forest dwellers who are integral to the
very survival and sustainability of the forest ecosystem”. Thus, it is
clear that Act was enacted to recognise the rights of the forest dwellers on
the forest land, so as to redress historic injustice of exclusion and
marginalisation of them for centuries.
Section
2© defines forest dwelling Scheduled Tribes
as the members or community of the Scheduled Tribes who primarily reside
in and who depend on the forests or forest lands for bonafide livelihood needs and includes the Scheduled Tribe
pastoralist communities. And Section 3 provides for a list of rights vesting in
the forest dwellers under this Act, including the right to live in the forest
land under the individual/common occupation for habitation or for
self-cultivation for livelihood; right of ownership, access to collect, use and
dispose of mino forest produce; other community rights of uses or entitlements
such as fish/other products of water bodies; and right of access to
biodiversity and community right to intellectual property and traditional
knowledge related to biodiversity, amongst others. The Act then provides an
extensive mechanism and procedure for determining the nature and extent of
individual or community forest rights, starting from Gram Sabha to
Sub-Divisional Level Committee to the District Level Committee, and the State
Level Monitoring Committee.
Thus,
it is clear that the intention of the Act is to vest forest rights in the
dwellers and not to dispossess/evict them. It recognises that the verification
and recording of forest rights has been quite problematic till now, and the Act
proceeds with an assumption that those scheduled tribes and other traditional
forest dwellers who have been residing in forest lands for generations and
depend on forest produce for their livelihood and sustenance ought to be vested
with rights in those lands.
However,
soon after its passage, the constitutional validity of this Act was challenged
in the present petition in 2008 filed by a wildlife NGO, Wildlife First, in
conjunction with retired forest officials, who believed that the Act was
unconstitutional, and resulted in deforestation. They also claimed that the
rejection of claims under the Act ought to result in automatic eviction of
tribals from forest lands, and the States had not taken any action to reclaim
land from such persons. These claims have been vehemently opposed by the Tribal
groups, who argue that many rejections are incorrect/faulty and need to be reviewed,
in accordance with the Act.
The
case meandered in the Supreme Court for almost a decade, with no proper hearing
on the merits of the Act, but in 2018 onwards, it became more about eviction of
those whose claims been rejected than about adjudicating the constitutional
validity of the Act. This shows the mindset of the Supreme Court judges who, in
one sweep, can render a statute toothless, show complete disregard to its aims
and objects, and pass an order, without understanding the ethos of the law. The
use of the word ‘encroachment’ in the Supreme Court order harks back to the
colonial era, when forest dwellers were seen as ‘encroachers’, and it was this
precise thinking that was set to be overturned by the 2006 Act.
However,
the biggest culprit in this whole process has been the Central Government, who
did not put up even a defence of the law, let alone an adequate defence. It is
the job of the Government to defend the validity of a law, which the present
government failed miserably. In fact, the Central Government lawyers were not
even present on the last three hearing, including on 13th February,
2019, when this unconsciable order was passed by the Apex Court. In fact, in
early February, 2019, several activists and NGOs had appealed to the Ministry
of Tribal Affairs to utmost defend this critical law, and not allow its
dilution, and to apprise the Court that the Ministry itself had admitted that
many rejections of the claims were incorrect, and needed review. However, this
was of no effect, since the Central Government facilitated the order for one of
the biggest evictions of adivasi and tribals in the independent India. Though
this Government’s love for big corporate interests and disdain for tribal
rights is well-known, it is unthinkable that a Government will let a statute be
rendered toothless, owing to its vested interests.
Thankfully,
the issue has become a huge political concern just before the General Elections
in May, 2019, with the opposition parties slamming the Government for its complete
callousness in not defending the Act. Hopefully, the States will take adequate
steps to challenge/appeal against the order, and defend the Act in its
entirety. (IPA
Service)
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