In a relief to nearly 2 million tribal and other traditional forest-dwelling families (not individuals), the Supreme Court on February 28 suspended its earlier order, which could have led to their eviction from the forests.

On February 13, a three-judge bench comprising Arun Mishra, Navin Sinha and Indira Banerjee of the SC asked the states to provide data on evictions of tribals and forest dwellers against rejected land claims under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, better known as the Forest Rights Act (FRA). The written order came on February 20, in which the SC directed the states to act against encroachers where eviction notices were given. It had set a deadline for July 27, 2019.

The SC had warned each of the states to file a detailed affidavit on “whether eviction has been ordered and possession has been taken or not”. The court also said, “It is further directed that the cases in which the orders have attained finality (for eviction), let eviction be made forthwith. In case of non-compliance of this order, the same shall be viewed seriously.”

This would have meant an eviction of nearly 1 crore forest dwellers. The February 13 court order came in a case filed by NGO Wildlife First and a few retired forest officials who have opposed the Act from the very beginning. In their PIL, they challenged the validity of the FRA. According to the petitioners, the Act has led to deforestation and encroachment of forestland. The petitions filed way back in 2008 sought the recovery of forestland from the possession of those people whose claims under the FRA stood rejected.

They claim that approximately 2.05 million of 4.4 million claims were rejected. However, the Union tribal affairs ministry estimates that by the end of November 2018, out of the 4.2 million claims received, 1.94 million have been rejected. About 1.89 million claimants have got titles over their traditional forestland. The case had been ongoing since 2009.

According to Business Standard, the SC had asked states in March 2018 to report on the status of eviction of those claimants whose claims have been rejected and the total extent of the areas from which they have been evicted. On February 13, when the SC heard the matter again, the lawyer for the petitioner pushed the case for eviction. Justice Arun Mishra noted that state reports had not reported any eviction (although four states had) and the court demanded that chief secretaries submit affidavits explaining why no action has been taken subsequent to rejection of claims that have attained finality and what steps have been taken after the rejection of claims.

Historically, usage and access of forest resources by tribals and other forest dwellers was considered an encroachment. In 2006, the passage of FRA was seen as a step towards undoing the historical injustice by recognising customary rights of forest dwellers, including the right over common areas and the right to manage and sell forest produce. The Centre’s inaction on the constitutional challenge to FRA continues the historic injustice.

Since the very beginning, the Act has been fraught with poor implementation and lack of political will. Tribals and other traditional forest dwellers had made their discontent apparent when they marched from Nashik to Pune in March 2018; they had voiced their complaints of high rejection rate of claims under the FRA. But instead of setting their house in order, the Centre displayed startling apathy by even neglecting to send a lawyer for the hearing in response to the PIL. The February 13 order simply underscored the Centre’s systemic indifference towards the most marginalised section of society.

After the order, the Centre came under a scathing attack from Opposition parties, including the CPM, Congress, and Jharkhand Mukti Morcha, which blamed the ruling BJP for being silent on the matter. Congress leader Rahul Gandhi alleged that the absence of government lawyers in court betrayed its “intention” to drive out lakhs of tribals and poor farmers from forests.

On February 23, the Congress asked states ruled by the party to file review petitions against the order. On February 22, the tribal affairs ministry had said, “It’s clarified that Govt of India, Ministry of Tribal Affairs is well aware of its responsibilities of defending the constitutional validity of the Forest Rights Act and the ministry will do everything at its disposal to safeguard the interests of the tribals as it has been doing so far.” The Centre soon filed a review petition.

What the Act says

From the very beginning, the Act has faced stiff opposition from within the ranks of forest officials as well as some wildlife groups and naturalists. In a joint statement issued by networks and alliances of forest right activists - CFR Learning and Advocacy, All India Forum of Forest Management and Mahila Kisan Adhikar Manch - they pointed out that “the petitioners misled the SC by equating ‘rejection’ of claims, as part of ongoing process for verification and recognition of rights, with ‘encroachment’ of forests, in the process treating all ‘rejected’ claimants as encroachers”.

The SC order went against the spirit of the Act, which does not provide for eviction. In fact, the Act protects tribals and forest dwellers from eviction as their rights get recognised and vested (section 4 (5)). The FRA provides for verification and rejection of claims through a process that includes the claimants’ right to be heard in person, to be served rejection orders with reasons in writing, the right to appeal, review and re-verification by the gram sabha, which has not been followed in a majority of rejected claims.

Thus, mandating evictions on the basis of ‘rejection’ of individual claims would be tantamount to illegally dispossessing claimants from their community forest resources and divesting claimants of their right to manage and protect their forests as members of gram sabhas.

A group of about 30 India’s top ecologists, scientists and wildlife conservationists came out in support of the Act and the forest dwellers, demanding that the petitioners withdraw their case against the Act. They have called the SC order “unjust” to the tribals as well as against the interest of wildlife conservation in India. In a statement issued jointly by the scientists, they said, “We do not regard this order as pro-conservation. On the contrary, it is a real setback for conservation in India. We do not agree with the claim of the petitioners in this case that their positions represent the interests of conservation.”

Impact on forest dwellers

The order of mass eviction would have meant a loss of tribal livelihoods, economy and employment. Even a minimal FRA implementation in the past 10 years has made gains in improving socio-economic and livelihoods status of tribals and forest dwellers in the forest areas of Maharashtra, Odisha and other states. The order would have undermined such gains, leading to distress situations in tribal areas.

The order would have further marginalised a large population of vulnerable communities such as the particularly vulnerable tribal groups, nomadic and pastoral communities, Dalits, women, residents of forest villages and unsurveyed villages and displaced communities. Women, who made a significant contribution to the tribal economy and livelihood activities relating to food, minor forest produce and fodder needs, were likely to be the worst affected.

Moreover, high rates of rejection (about 70-80 per cent) in sensitive and conflict-prone areas would lead to further unrest. Assertion of rights by forest communities has met with severe resistance and oppression by the Forest Department and the SC order would have worsened the atrocities.

In several places, on the strength of forest rights, forest-dwelling communities have successfully challenged ecologically devastating diversion of forests for mining and other industrial activities without proper environmental clearances. A case in point is the Niyamgiri issue, where the SC took cognizance of these powers and rights.

It is rather surprising that the SC order came in the wake of the 2017 Forest Survey of India report and earlier reports, which show an increase in forest cover in tribal areas, a proof that recognition of forest rights of the tribal and other traditional forest dwellers only leads to improvement of forest cover.

SC reviews its order

In its review petition on February 27, the Centre asked the apex court to modify its earlier order, as the states had not put the complete picture before the courts. In its order modification plea, the Centre stops short of pleading for a full review and states that, “Without such information and compliance with the mandate of law in letter and spirit, the eviction of such tribals would amount to serious miscarriage of justice… The eviction of tribals, without such information would cause serious prejudice to such tribals who have been residing in forests for generations.”

The Centre also put on record that it had as far back as 2016 told the states about problems and illegalities in high rate of rejection of claims, which included “non-communication of rejection orders; lack of reasons in the order; raising of frivolous objections etc”. The Centre had then warned the states that “forest authorities are immediately attempting to evict tribals where rejection is made even without awaiting the decision of appeal”.

While the government was privy to these facts, as per its letter in June 2018, this was not conveyed to the court.

During the hearing on February 28, the SC bench slammed the Centre for “being in slumber” all these years and asked the officials as to why they had not come to the court. “For years, you do nothing and now you come for modification,” the bench observed.

Now, the bench led by Justice Arun Mishra, in its suspension order, has given the states four months to file affidavits detailing the process in which the claims on land of forest dwellers were rejected by the authorities. The court will next hear the matter on July 10.

Savvy Soumya Misra is a former journalist working in the development sector. The views expressed here are personal.