Nearly 1 million tribal people across the country are currently at the risk of eviction from various forestlands as they have failed to claim that they are forest-dwellers as prescribed under the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006. This comes after the Supreme Court on February 13 rejected the claims of lakhs of forest-dwelling Scheduled Tribe (ST) members and Other Traditional Forest Dwellers (OTFD), to restore their rights under the Act.
The Bench, comprising Justices Arun Mishra, Naveen Sinha and Indira Banerjee, passed the latest direction after the Central government constantly failed to defend its Forest Rights Act when it was challenged by a battery of petitions.
While 7,67,467 ST claims were rejected, 4,45,047 OTFD claims were rejected in 17 states, with 1,95,222 claims yet to be adjudicated in three states. Madhya Pradesh has the highest number of claims rejected. In south India, 3,74,818 claims were rejected. The break-up is as follows.
Andhra Pradesh: 66,351 claims rejected
Karnataka: 35, 521 ST claims and 1,41,019 OTFD claims rejected
Kerala : 39,999 ST claims and 894 OTFD claims rejected
Tamil Nadu: 7148 ST claims and 1811 OTFD claims rejected
Telangana: 82,075 claims rejected
In 2008, a cohort of petitioners, an NGO Wildlife First and a few retired forest officials, contended the validity of Forests Rights Act and pointed out that it has engendered deforestation and encroachment of forest land. The petitioners also demanded the eviction of those whose claims over the forestlands have been rejected under the law.
Centre instituted Act, but fails to defend it
The Forest Rights Act was passed by the United Progressive Alliance (UPA) government in 2006 and came into force on December 30, 2007.
According to the Forest Act 2006, persons who have been either traditionally residing in forests or forestland for over 75 years and/or traditionally dependent on forest produce for livelihood are the eligible and rightful claimants to these areas.
The Act also recognises other rights to tribals and traditional forest dwellers in India, including rights to waterbodies, the right and power to protect, conserve and manage community forest resources, and conversion of all types of forest villages and settlements to revenue villages, among others.
Incidentally, the FRA was introduced to address the “historic injustice” and decades of rights denied to the tribals and forest dwellers due to the colonial forest laws in the country.
The forest rights to the ST members and OFTD are recognised and vested by the Central Government. Per Section 4 of the Act, the forest rights may subsequently be modified or resettled, provided no forest rights holders shall be resettled or have their rights in any manner affected, except if the activities or the presence of these persons impact the wildlife in a way that causes irreversible damage and threatens the existence of said species and their habitat.
Hence, the resettlement is legal only, inter alia, if the process of recognition and vesting of rights is completed, if it has been established by State government agencies that their presence is creating a volatile environment to the wildlife and if a resettlement or alternative package to provide a secure livelihood has been prepared and communicated.
However, whenever the case came up for hearing, the Central government and state governments failed to react and give a viable solution. On January 29, 2016, the Supreme Court directed the states to file affidavits to show the status of the claims from these tribal members. Then, on February 13, the Central government failed to present its lawyers to defend the Act.
Hence, a three-judge bench passed orders giving states time until July 27 to evict the tribals whose claims had been rejected and submit a report on it to the Supreme Court.
Centre's apathy defeats purpose of Act
The Centre not jumping on board to defend the Act has made the preponderance of tribals and other traditional forest dwellers more vulnerable and denied them their rights, thus defeating the very purpose of this legislation.
Several activists have pointed to the inaction from the forest department officials in granting forest rights to these tribal and forest dwellers, issuing land rights documents and other identity cards.
According to Srinivas Ganjivarupu, an activist with the NGO Chaitanya, the tribal settlements in the Eastern Ghats have not been granted forest rights patta due to the apathy from forest department officials and hence face the risk of eviction.
He elucidates his point with the case of the Chenchu tribe members who live in the forest area near Srisailam in Andhra Pradesh. He explains that the forest department is supposed to identify them as Adivasis and only then will the tribal welfare department give them the forest right patta.
“These Adivasis have been living in the forest area for centuries. Their livelihood depends on non-timber forest products they harvest, such as food. Hence, the forest department must ensure that they get community rights documents. This means that the members of the tribal community will be able to use non-timber forest products for livelihood and in turn enable forest conservation,” he says.
“The forest department, however, is telling the government that they are encroachers. Why is that? When people question them, the forest department officials say that the Adivasis do not have the necessary documents. But, the first step in obtaining the documents has to be executed by the forest officials. This is an injustice," points out Srinivas.
Echoing a similar point, Appaji, a member of the Jenu Kuruba community and an Adivasi Rights activists in Karnataka, says that primary reason why Adivasis have not been given the land right documents is that they do not have any kind of identity documents.
“When I began protesting for the land rights of Adivasis, one of the biggest hurdles we faced was from the local tehsildars. They do not help the Adivasis in obtaining a voter ID or an Aadhaar card. Many of them do not even have caste certificates because they have never heard of it. When they do not have any help in procuring these documents, how will they survive?" he asks.
M Geethanandan, Adivasi Gothra Mahasabha State Coordinator in Kerala, points out that in questioning the validity of the Act, “the petitioners have not only challenged if the tribals are deserving of these rights but the very concept of forest rights. “The Supreme Court direction is precarious in that sense,” he says.
The 2006 Act has given executive and judicial power to Grama Sabhas in recognising the rights of the tribals. There are sabhas (committees) in the ward level that is the primary tier to recognise and recommend the rights of tribal hamlets. Then there are Sub-Divisional Level Committees (SDLC), followed by District-Level Committees (DLCs).
Geethanandan says that these Committees have executive powers. “For example, if a body had rejected the application of tribals in recognising their rights, the upper committee has the rights to review it. They can even move a civil court. But the Supreme Court has now intervened in all these powers,” he says.
“The SC can’t say that the tribals should be evicted solely because a lower court had rejected a particular number of applications to recognise their rights. Hence, the SC has not only intervened in a law passed by the Parliament but in a democratic process. Besides, it has also been reported from various states that there are errors in the normal procedures in placing the applications for recognising rights.
Calling the SC directive unfair, Selvaraj, a forest rights activist in Tamil Nadu, says that the state has not fought legitimately for the rights of the people. “The people had to submit their claims to the Gram Sabha and then the committee there had to sanction it. But this was not done properly and the claims were not corrected completely. We believe that at least 80% of the dwellers have not filed an application. Lack of proper awareness of this issue to these people is another challenge in this case,” he explains.
“These tribal communities and dwellers, who have lived in these forests for 200 years, will all be brought to the streets now. They have protected these lands for centuries. The government, instead of guiding them, is deceiving them. If they are removed, the forest department can freely allow the land mafia to take control of the land, as they please,” he alleges.
‘We will fight’
“It is condemnable to evict tribal people from their parcels of land because that is all that they own. All Adivasi organisations should come together and seek legal opinion on the way forward and if possible, file a review petition in the Supreme Court,” Rama Gopal, an activist from the Bharatiya Adivasula Samaikhya in Andhra Pradesh tells TNM.
According to Atram Bhujangarao, Adivasi Joint Action Committee Advisor and Telangana Vice-President of Human Rights Forum (HRF), the SC directive is nothing but an effort to alienate the Adivasis from the forest. “This move violates the 2006 Forests Rights Act and also is a breach of trust of the Adivasis in the justice system. We will appeal in the Supreme Court,” he says.
Geethanandan said that the Parliament should act against it by bringing in legislation. “Congress President Rahul Gandhi has directed all Congress-ruling states to stop land acquisition from tribals. The Left government in Kerala can also do the same and become a party in the case,” he suggests.
The Campaign for Survival and Dignity, a national forum of tribal and forest dwellers' organisations that played a crucial role in bringing about the 2006 Act, will organise a national-level protest against this move, says Geethanandan.
Selvaraj also says the Tamil Nadu activists will legally pursue the matter and ensure "their rights are not snatched away".
(With inputs from Nitin B, Theja Ram, Saritha S Balan and Priyanka Thirumurthy)