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Above: Tribal women carrying firewood from the forest in Patratu area in Ranchi/Photo: UNI

In a welcome move, the Supreme Court stayed an earlier order which called for the eviction of lakhs of forest dwellers all over India, giving them some reprieve

By Debi Goenka

The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA, as it is popularly known, is a law that was enacted in 2007. The FRA was meant to undo the “historic injustice to forest dwelling communities” and for recognising pre-existing forest rights only as on December 13, 2005. The Act covers not just tribal populations but also includes “other forest dwellers”. Only those in actual occupation of forest land are eligible to be granted rights as per this law. People belonging to Other Traditional Forest Dwellers category, i.e. non-tribals, who form the bulk of the claimants, have to establish continuous 75-year occupation for eligibility.

A writ petition was filed in 2008 in the Supreme Court by a number of environmental and wildlife groups to ensure the protection of forests that were severely affected due to ineligible/bogus claimants under FRA. The vires of the FRA was also challenged. On February 13, 2019, a three-judge bench of the Supreme Court comprising Justices Arun Mishra, Navin Sinha and Indira Banerjee ordered that all the persons—non-tribals and tribals—whose claims have been rejected after following the due process laid down in the FRA—need to be evicted.

The Order directed: “…The Chief Secretary shall ensure that where the rejection orders have been passed, eviction will be carried out on or before the next date of hearing. In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court…” It further said: “…It is directed that where the verification/ reverification/review process is pending, the concerned State shall do the needful within four months from today and report be submitted to this Court….Let Forest Survey of India (FSI) make a satellite survey and place on record the encroachment positions and also state the positions after the eviction as far as possible….Let the requisite affidavits be filed on or before 12.07.2019.” The matter was listed for July 24, 2019.

However, on February 27, the government made an urgent application to the Supreme Court for a review of the order, stating for the first time that the Ministry of Tribal Affairs (MoTA) was not satisfied with the procedure followed by the state governments while rejecting these claims. The same bench heard MoTA’s application on February 28, and put its order of February 13 on hold. State governments have now been directed to file affidavits elaborating the procedure they followed pursuant to these claims being filed. The solicitor general, who appea­red for MoTA, had no reply when the judges asked—what was MoTA doing over the years when previous hearings were held and various orders were passed by this very Court?

It would be interesting to note some of the orders passed previously in this regard. An order dated January 29, 2019, by a bench headed by Justice Jasti Chelameswar of the Supreme Court said: “…Obviously, a claim in the context of the above-mentioned Act is based on an assertion that a claimant has been in possession of a certain parcel of land located in the forest areas. If the claim is found to be not tenable by the competent authority, the result would be that the claimant is not entitled for the grant of any Patta or any other right under the Act but such a claimant is also either required to be evicted from that parcel of land or some other action is to be taken in accordance with law.

“Therefore, we deem it appropriate to find out as to what action was taken against the claimants whose claims have already been rejected. At this stage, we are informed by Mr. P.S. Narsimha, learned Additional Solicitor General that the action insofar as persons who are unauthorisedly in possession of forest land, is required to be taken by the concerned State Governments and its authorities under the relevant laws in force in each one of the States.

“In the circumstances, we are of the opinion that each one of the respondent-States should file an affidavit giving the data regarding the number of claims rejected within the territory of that State and the extent of land over which such claims were made and rejected and the consequent action taken up by the State after the rejection of the claim, with all appropriate data in support of the above-mentioned information within a period of two weeks from today….”

An order dated March 7, 2018, and delivered by a bench headed by Justice Madan B Lokur, said: “…Under the circumstances, we issue a fresh direction to all the State Governments to file a tabular statement in the form of an affidavit indicating the following:-

“(i) The number of claims for the grant of land under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;

(ii) The claims should be divided into claims made by the Scheduled Tribes and separately by other traditional forest dwellers;

(iii) The number of claims rejected by the State Government in respect of each category;

(iv) The extent of land over which such claims were made and rejected in respect of each of the two categories;

(v) Action taken against those claimants whose claims have been rejected;

(vi) The status of eviction of those claimants whose claims have been rejected and the total extent of area from which they have been evicted;

(vii) The extent of the area in respect of which eviction has not yet taken place in respect of rejected claims.

The cut-off date for providing this information is 31.12.2017…”

Under the FRA, a detailed procedure has to be followed once a claim is filed. To begin with, a claim can be filed only once the claimant is aware of the existence of the FRA and his entitlements under it. The gram sabha first scrutinises the claim, and no forest officer, wildlife or environmental NGO or the ministry of environment and forests is involved. If a claim is rejected by the gram sabha, the first 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. What is important is that once a claim has been accepted or rejected, there is no provision for appeal against the final order of this district committee.

Based on data provided by the state governments, the September 2018 statement prepared by MoTA indicates that a total of 42 lakh claims were filed over forest lands, including within sanctuaries, national parks, tiger reserves, etc., by tribals and non-tribals. Based on these claims, a total of 18,89,835 titles have already been granted by various state governments, covering 72,23,132 hectares of forest lands. These forest rights have been given mainly to individuals, and not to communities. This has led to opening up of closed canopy forests and honeycombing of our protected areas.

What is significant to note is that the Supreme Court has not examined the authenticity of these claims—indeed, it has no machinery available to do so.

All that the Supreme Court has ordered is that those claimants who have been found ineligible by state governments after multiple scrutiny as provided un­der FRA need to be removed from the forests.

As mentioned earlier, the first level of scrutiny is carried out by the gram sabha. As per the information provided by MoTA, 14,77,793 claims have been rejected by the gram sabhas themselves. This itself seems to indicate that a huge number of bogus claims had been filed to grab forest land. This has also been established by satellite imagery and even a committee appointed by MoTA under the chairmanship of NC Saxena, a former IAS officer.

The Supreme Court had also directed that where the verification/reverification/review process is pending, the concerned state shall do the needful within four months and directed states to submit their reports to the Court. The Forest Survey of India has been asked to carry out a satellite survey and place on record the encroachments and the positions after the eviction as far as possible.

At the end of the day, what is important is to decide whether in the face of the climate change crisis that is confronting us, we can continue to destroy our life support system, our forests. That will also guarantee water security. Without forests, there will be no water.

—The writer is Executive Trustee, Conservation Action Trust

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