The Supreme Court (SC) of India has directed 16 states to evict all Scheduled Tribe members and other traditional forest-dwellers before July 27, whose claims were rejected under the Forest Right Act, 2006 (FRA).
The order could force more than a million forest dwelling people out of their homes, making it the biggest mass eviction for conservation ever proposed in India, say several tribal activists and human-rights-based civil societies.
The number of affected families may increase as other states comply with the orders of the SC. As per the latest data (December 2018) available with the Ministry of Tribal Affairs (MoTA), the nodal ministry for FRA, shows that out of 42.19 lakh (4,219,000) claims made, only 18.89 lakh (1,889,000) have been accepted. That means there are more than 23 lakh (2,300,000) tribal and forest dwelling families who can still face eviction.
According to the conservation groups that filed the petitions, the court should declare FRA invalid on the grounds that it promotes encroachment by the communities into Protected Areas and Wildlife Parks, thereby jeopardizing efforts to protect wildlife and the country’s forests. If the applicants failed to prove their claims under the act, than they should be evicted by the state government, argued the conservation groups.
Tribal members and human rights lawyers have been sternly protesting the petition, asking how the tribal people and forest dwellers who have been living in these areas for generations have become ‘encroachers’ overnight?
“Why is the government evicting us from our land, forest and water? As if we are not from this country. And if we will leave our forest, our home, where else we will go? Nobody is talking about that”, Bajuram Ho, a tribal community leader from Mayurbhanj district of Odisha reacted when he was informed about the possible eviction.
“This judgement is a death sentence for millions of tribal people in India, land theft on an epic scale and a monumental injustice”, said Stephen Corry, Director of Survival International. “It will lead to wholesale misery, impoverishment, diseases and death, an urgent humanitarian crisis, and it will do nothing to save the forests which these tribal people have protected for generations”.
Aakar Patel of Amnesty India said, “This ruling is a body blow to Adivasi rights in India. It would be unconscionable for Adivasi people to be evicted from their homes and lands merely because their claims were rejected in a process that is known to be severely flawed”.
“This is a travesty of justice”, said Sandeep Kumar Pattnaik, National Centre for Advocacy Studies. “This will undermine FRA, 2006 and favour state control of forest and forest land for the purpose of tourism, resource extraction and land grabbing”, emphasized Pattnaik.
In the case of eviction orders that have attained finality, “We direct the states to ensure that eviction is carried out on or before the next date of hearing, scheduled on July 24th”, said SC. “If the process of review is filed and all the provisions of FRA are followed, it shall take around 240 days for a claim to be finally rejected in totality”, informed Giri Rao, who heads Vasundhara, a Bhubaneswar-based non-profit organization working on the issue of land rights.
Commenting on this, Campaign for Survival and Dignity (CSD), a network of NGOs advocating for the rights of forest dwelling people, said “The FRA contains no clause for eviction of rejected claimants and, in fact, section 4(5) specifically prohibits eviction until the process of implementation of the law is fully complete in an area”.
Echoing the same concern, Srinibash Das, Program Officer, Panchayatiraj Department, Government of Odisha said, “According to FRA, 2006, no one should be evicted while the process of recording their rights is underway. The petitioners have definitely ignored this important clause under the act”.
To make the situation worse, the applicants are hardly informed about their rejections. “Since the applicants are often not informed about the rejection, so the possibilities of appealing the decision are extremely slim. We have never seen a single instance where the applicant has appealed against the rejection”, said Manoj Kumar, Director of Vikas Sahiyog Kendra, a Palamu-based NGO working on the issues of tribal communities.
According to the law, no petition of an aggrieved person shall be disposed of, unless the applicant has been given a reasonable opportunity to present anything in support of their claims. However, “There is also lack of awareness amongst the tribal people on the process of appealing against the rejection of their claims. Many don’t even know about District Level Committee and Sub-divisional Level Committee, the nodal departments to appeal before”, said Kumar. Ironically, the Supreme Court has now intervened in all these powers.
“The implementation of FRA is sluggish”, said Pattnaik. “In several states, systematic “rejection” of claims has happened without stating the reasons or giving a chance of appeal”, argued Pattnaik. While 767,467 claims from Scheduled Tribes were rejected, 445,047 claims from Other Traditional Forest Dwellers (OTFDs) were rejected in 17 states, with 195,222 claims yet to be adjudicated in three states.
States like Karnataka, Madhya Pradesh and Odisha are the biggest losers, since these three states have the highest numbers, with 20 percent claiming land ownership submitted under FRA, 2006.
“There is a need to have a re-look into the cases of doubtful rejections so that any rightful claim does not get denied”, according to the letters issued by Ministry of Tribal Affairs (MoTA) on September 12, 2014 and April 10, 2015, to all the Principal Secretaries of the states pointing towards the high rate of rejection of claims. MoTA also raised few critical concerns about the high rejection rate of the claims of the OTFDs (those who are not Schedule Tribes) in left wing extremism-affected areas.
States like Jharkhand and Himachal Pradesh have refused to accept applications by OTFDs, says Geetanjoy Sahu, Professor, Tata Institute of Social Science, who just finished a pan-India study on the implementation of the Act.
Recently compiled data by MoTA on the implementation of FRA, shows that the rate of rejection is higher than the number of claims for which title deeds are distributed. Out of approximately 4,224,000 lakh claims, both individual forest rights and community forest rights filed, so far around 1,894,000 claims have been given title deeds, whereas around 1,939,000 claims have been rejected.
The Tribal Affairs Ministry issued a statement that it will defend the constitutional validity of the FRA, 2006 in order to protect the interest of the tribals in the country. “The Ministry will do everything at its disposal to safeguard the interests of the tribals as it has been doing so far’’, said the statement.
Revisiting the history of injustice
The forest lands of India cover nearly 23 percent of the total land area of the country, providing a key source of livelihood for more than 200 million people–the majority of them belonging to tribal communities. They are classified as Scheduled Tribes and their habitats comes under the Fifth Schedule areas by the Constitution of India.
The poverty reflected in the lives of these tribal communities apparently shows a history of exploitation, right from feudal lords and colonial powers of the past, to scrupulous moneylenders and an apathetic State of today.
Uncultivated areas, whether grasslands or forested, have historically supported gathering and hunting, provided fertile land available for conversion to different forms of agricultural use, and also a range of commercial timber and agro-forestry products.
It is in this backdrop that the Indian Forestry Act of 1864 was passed by the British to create the Indian Forestry Services. Its goal was to “territorialize” forest lands for the benefit of the State, affecting the livelihoods of the tribal people against whom the British were engaged in violent and bloody conflicts during their regime. The structures that came showed a remarkable persistence in depriving tribal communities of their customary rights–even five decades after independence.
It was only in 2006 that the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, (FRA, 2006) was passed by the Indian Government. It marked a watershed moment in the history of tribal development in India “to recognize and vest Forest Rights to the marginalized and vulnerable who are dependent on forests for their sustenance and their existence.”
It was also for the first time an Act had recognized the ‘historical injustice’ perpetrated by the state: “The forest rights on ancestral lands and their habitat were not adequately recognized 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”.
The FRA empowered the tribal people as individuals to hold and live in the land for habitation or self-cultivation; and as a community, to collect, use and dispose Minor Forest Produce. It also gave the community, as a cooperative council such as the ‘Gram Sabha’ and ‘Palli Sabha’, to take decisions regarding the sale, transfer, acquisition and conversion of such forest lands.
This also gave rights to the groups to indulge in fisheries, conservation and protection of wildlife habitat and right of access to the bio-diversity and intellectual property rights over knowledge related to biodiversity.
Patchy implementation of FRA
In the few years following the implementation of the Act, even the MoTA complained of its ineffectiveness due to brazen non-cooperation of bureaucrats, political heads and private agencies in ensuring the welfare of the forest dwellers. All sorts of reports, ranging from private market players exploiting the tribal producers to Revenue Officers harassing the tribal groups for fines and petty offenses, abound newspapers and various committee reviews.
The criminalization of innocent people as encroachers of forest lands–and their produce being declared as illegal goods in the market–has broken the tribal spirit and their means to livelihood. Even as the tribal groups dutifully file for title deeds to land preserved and cultivated by their ancestors for generations, the Forest Department shows no hurry to clear the petitions, some of which remain pending for five years or more, claim tribal activists.
The village-based forest management committees are rendered powerless, as they have little or no power to identify or verify forest land for applicants. The farce that has become of the Forest Rights Act lies in the fact that it continues to concentrate authority in the hands of the higher-ups rather than devolve it to the Gram Sabhas. In-durable delays, corrupt connivance of forest officials with middlemen, wanton criminalization of tribal folk mar the implementation of FRA.
Inertia of the ruling Government
The apathetic attitude of the Modi government on the latest SC decision has been severely criticized by the human right activists and vehemently condemned by Rahul Gandhi, President of Indian National Congress, the chief opposition political party in the country.
“We must honour the people’s mandate by effectively implementing the Forest Rights Act,” said Gandhi in his letters to the chief ministers of Chhattisgarh, Madhya Pradesh and Rajasthan. “The Modi government is showing its intention of driving out hundreds of thousands of tribals and poor farmers from the forests”, Gandhi had tweeted last week.
The central government for the fourth time in a row chose not to argue at all in the court. Brinda Karat, a leader of the Communist party has written a letter to the Prime Minister, Narendra Modi, in protest against the court’s decision. “It will be highly unjust to traditional forest dwellers if an ordinance is not passed immediately to protect them from eviction. It will be a virtual declaration of war”, said Karat.
“It has now come to a stage where they want to evict tribal people. So, we have demanded that the Modi government immediately issue an ordinance. They can issue ordinance on Triple Talaq, but are not bothered about the Adivasis,” argued Karat.
“It is unfortunate that the lawyers of the Union Ministry of Tribal Affairs have exhibited a deep silence instead of defending the Act. The version of petitioners has been taken to be truth as no other party can speak effectively to defense a law”, said Das. “It seems both Ministry of Environment and Forest and MoTA silently watching from the sidelines”, laments Das.
“The BJP government has supported CAF Act, 2016 and National Forest Policy, 2018 in the past. If they don’t not defend FRA by deploying efficient senior advocates in the SC, the ruling government will permanently position itself as Anti-tribals and forest dwellers. Thus, they should bring Ordinance and file review Petition in the SC at the earliest. This is only way we can avoid the eviction of lakh (thousands) of helpless tribals and forest dwellers”, said Manohar Chauhan, Member of CSD.
The conservation groups are gradually gaining momentum to materialize their dream – protecting wildlife and forest at the cost of forest dwelling people, whilst the corporate tycoons are closely monitoring the progress to tap the opportunity – making inroads even into the buffer zones, with one common agenda – exploiting the natural resources.
The Indian government is supposed to be the guardian of the people, but unfortunately it is playing a deceptive game that directly goes in favour of ‘corporate groups’ and the ‘land mafia’. Meanwhile, the poor tribals of the country, the oldest citizens, are preparing themselves to be homeless in their own country.
Abhijit Mohanty is a Indian international development professional currently based in Cameroon, Central Africa. He has extensively worked with the indigenous communities across India, Nepal and Cameroon, especially on the issues of land, forest and water. For more information about his work visit www.theadivasi.com