Supreme Court in its latest order has stayed its earlier decision to evict tribals and forest dwellers whose claims over forest land were rejected under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Court’s stayed its order to give time to investigate whether due process to identify legal claims has been followed or not. For this determination SC has given state governments four months from the day of its order to submit the report in this regard and FSI has also been asked to carry out a satellite survey and place on record encroachment positions.
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- The apex court’s order came in connection with a PIL filed by the NGO ‘Wild Life First’, which challenged the validity of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
- For wildlife protection groups, the issue is of India’s forests being relentlessly eroded by humans encroaching on animal habitats. There have been innumerable cases of villagers illegally living on protected forests meant exclusively for animals.
Forest right acts
- Act recognized 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.
- It provides for a framework for recognition of tribals.
- Recognized tribes are entitled to responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance
- Act differentiates in the eligibility and criteria for verification (in Section 2) of rights of STs and OTFDs.
- While STs must prove that they have ‘primarily resided in the forest or forest land prior to 13-12-2005’, OTFDs must prove that they have ‘primarily resided in forests or on forest lands for three generations (75 years) prior to 13-12-2005’.
- Section 6 of the Act provides a three steps procedure for deciding on who gets rights.
- First, the Gram Sabha makes a recommendation. No forest officer, wildlife or environmental NGO is part of this process.
- The Gram Sabha’s recommendation goes through two stages of screening committees at the taluka and district levels.
- The district level committee makes the final decision. The Committees have six members – three government officers and three elected persons.
- If a claim is rejected by the gram sabha, the appeal lies with a committee held at the sub-divisional level.
- A further appeal can be made to a third committee chaired by the district collector.
- there is no provision for appeal against the final order of this committee.
- If the claim is found to be not tenable by the competent authority then claimant is not entitled for the grant of any right under the Act.
- Claim is made either for individual or community rights by the people/communities.
- Land recognized under this Act cannot be sold or transferred.
- The petitioners sought the eviction of all forest-dwellers whose claims to land under the law had been rejected.
- The total number of rejected claims from 16 states that have reported so far to the apex court add up to 1,127,446 tribal and other forest-dwelling households. Several other states that have not provided details to court have been asked to do so. Once they follow suit these numbers are likely to swell.
- The court has directed chief secretaries of states to ensure eviction in all cases where rejection orders have been passed on or before July 24 and directed the Dehradun-based Forest Survey of India to submit a satellite-image based report on the encroachments removed.
Issues with judgement
- Poor implementation of FRA: FRA has not been implemented properly due to lack of political commitment; lack of adequate human and financial resources with the Department of Tribal Affairs.
- Non-working mechanisms: poor or non-functioning of district and sub-division level committees, which consider the claims filed by gram sabhas is also one of the reason behind lesser number of properly passed claims.
- Forced eviction: Judgment led to forced eviction of over one million people belonging to the Scheduled Tribes and other forest communities.
- Against the FRA: Forest Rights Act 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.
- Against the fundamental right: Article 19(5) in the Fundamental Rights chapter of the Constitution specifically enjoins the state to make laws “for the protection of the interests of any Scheduled Tribe”. Many columnists argue that SC order is against this very right.
- Weaken the FRA: It may weaken the FRA, which exist to protect tribal rights and ensure the socioeconomic development of these communities. This could further alienate tribal communities from the mainstream.
- Contrary to earlier Samata judgement of SC: In Samata judgement supreme court upheld the constitutional right of tribal people and forbid government from any eviction of tribal population.
In its Samata judgement in 1997, the Supreme Court gave a clear message that if any state government allowed the transfer of land in favour of non-tribals and/or leased land in scheduled areas for mining projects, this would completely destroy the legal and constitutional fabric made to protect the tribal communities.
- Overlook of flaws in FRA
- Procedural flaws in processing claims: The petitioners declare that every single claimant whose claim has been rejected under this law is a bogus claimant. However, report of the High-Level Xaxa Committee found deep procedural flaws in processing claims under the FRA. The Xaxa Committee observed that claims are being rejected without assigning reasons, or based on wrong interpretation of the ‘OTFD’ definition and lack of evidence.
In several cases, the claims have been rejected based on flawed methodologies in violation of FRA Rules. For example, in Gujarat, claims were rejected only based on satellite maps. They were not based on ground surveys
- Right to appeal: In case of rejection of claim, the right to appeal is not being explained to tribal people nor its exercise facilitated.
Some best practices
Among poor and improper implementations of FRA, there are also instances of practices which can be be taken as a model, where tribal instead of eviction were given recognition and they were able to add productivity to the land.
In Panchgaon village in Chandrapur district and Mendalkha village in Gadchiroli the communities were given the ownership right over bamboo in the forest in 2014 which helped double the productivity of bamboo in about three years. Besides, the communities successfully bargained collectively with traders for higher prices.
Amaravati experience provides another example how the village communities, in Nayakheda, Upatkheda and Khatiyapur, have regenerated degraded forest lands and are growing species such as bamboo, amla and teak along with intensive soil and moisture conservation.
To ensure justice to the tribals, state must ensure:
- reviewing all rejected and pending claims to IFR and CFR expeditiously.
- ensuring regular meetings of district and sub-division level committees to consider and approve IFR and CFR claims in a time-bound manner.
- building capacities of gram sabhas for governance and management of community forest resources.
- leveraging modern technology to map and monitor the implementation of FRA.
- the forest bureaucracy must also be reformed to serve as service providers to gram sabhas.
The SC must safeguard the rights of tribal, especially those guaranteed by the Constitution, and must not set any precedent that would erode these rights in any way. Only the claim of illegal claimants should be rejected in order to protect forest from illegal encroachments. The government along with various tribal welfare group must evolve a procedure to re-affirms the claims of genuine claimants and protect the forest and wildlife from encroachers.