(This piece was originally published on 21.02.19 and has been republished in light of the (impending) 24 July Supreme Court hearing on the Forest Rights Act.)
The Supreme Court, on 13 February, in Wildlife First & Others [Petitioner(s)] versus Ministry of Forest & Environment and Others, ordered over 16 states, including Andhra Pradesh, Madhya Pradesh, Karnataka, Tamil Nadu, and West Bengal, to initiate the process of eviction of Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) from forestland. The petitioners had demanded that all those whose claims over traditional forestland are rejected under the Forest Rights Act (2006), should be evicted by state governments.
A three-judge bench of Arun Mishra, Navin Sinha and Indira Banerjee passed the order, giving states time till 27 July to evict Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs), and directed the states to submit a report on it.
The Supreme Court order has drawn much flak from both environmentalists and tribal right activists.
Following are excerpts from an interview with environment lawyer Ritwick Dutta:
The Quint: The petitioners against the Forest Rights Act 2006 want to evict forest people whose claims to their land have been rejected, even as the ministry has admitted that many rejections need to be reviewed. Is there a loophole in the so-called ‘landmark’ FRA that allows for tribals to be evicted on some basis? On what basis can tribals’ claims to their land be rejected?
Ritwick Dutta: The Forest Rights Act 2006 recognizes the rights of forest-dwelling Scheduled Tribes (STs) and other traditional forest-dwellers. Now, there are two criteria that they have kept in mind – there is a cut off period for those who claim to be indigenous forest dwellers, to prove they have been on the site for three generations at least. One generation is 25 years. So the law doesn’t say that NO forest-dweller or ST shall be evicted; all it says is that it will recognize the rights of all STs and other traditional forest dwellers, by following due process of law, and the act says that no ST and other forest-dwelling community shall be evicted or their rights interfered with, till the process of determination of status of the tribals is completed. So the court is essentially saying, “what happens once this process has been completed?”
The Quint: While the SC has passed a detailed order giving eviction directions to the Chief Secretaries of 21 states, the Ministry has admitted that many of these rejections of tribals’ claims to their land need to be reviewed. In this scenario, can the SC go ahead and have tribals, whose claims have been rejected, evicted WITHOUT review?
Ritwick Dutta: The review process (of the status of tribals) has to be completed. Now suppose, a person makes a claim to land, and that claim is rejected, that will qualify as the first stage of rejection. That person has the right to then go appeal at the sub-divisional level committee, and then the district level committee. There are many layers of appeal provided in the law. In this case, the states can respond saying the entire process is still not over. And till the process is not over, action (of eviction) can’t be taken, because that is not in consonance with the law. At the same time, the FRA also does not take into consideration the rights to any NON-traditional forest dweller. It is thus, an issue of human rights vs tribal rights. This law will not protect those who are recent encroachers upon tribal land. Take the Delhi Ridge, for example. If, say, three communities suddenly decide to settle there and end up staying there for 10 years, it doesn’t mean they have a right to that land. What FRA clearly states is that the forest-dwellers will have to prove their status.
The Quint: Coming to the question of land approvals. Under the law, what is required of the tribals to prove their forest-dweller status and claim to land?
Ritwick Dutta: The FRA does not emphasize on written documentation. Say, there is an old / ancient tree in the village, or old temples, even oral statements are admissible under the FRA, taken as a basis to establish three generations of existence, and then the recognition of that process has to be done by the Gram Sabha, not by the government. There are places in which the process has not been followed, and especially in areas where there is an aim to do mining, build dams, they are not recognizing the rights in accordance with law. But in that situation, the forest-dwelling community can consider an appeal process. I’m working on cases on FRA in many places, from Himachal to Manipur, where the process (of review) has not been completed. And therefore, we have to go to the next stage to recognize that the first stage did not consider all the documents provided for tribal land claims. But the problem is, when will the entire process be fully completed? And one of the issues is that will it be a continuous process – of everybody coming in and occupying land, or is it something that will protect the rights of the indigenous people?
The Quint: Where does the buck stop?
Ritwick Dutta: With respect to the appeals being filed, and some not being filed in cases where the tribals have not had the means to take that recourse, my only point is, that the timing of this order is wrong. It’s election time; I really think that this will create a lot of problems on the ground, at a more social and political level. So far as the process is concerned, there has to be seriousness on the part of both the Centre and the states. Now, if you look at the Ministry of Tribal Affairs, it, repeatedly, on affidavit (not just in SC but in the Green Tribunal too), has clearly said that it has no role in the implementation of the FRA, or verification of the claims by tribals. So, although the law considers this ministry to take a proactive role as the authority for the implementation of the FRA, the former has said that it does not have control over these issues, and it is ultimately up to the state governments. And the state governments, on their own, still do not have the mechanism to implement the law, because ultimately it goes back to the forest department; the tribal departments are almost spineless, and as a result, the recognition (of tribal rights) process is just not happening across the country.
The Quint: What should the Supreme Court have done in this case, instead of the eviction order it has passed?
Ritwick Dutta: It would have been better for the court to have asked for the status of implementation of the FRA in each state rather than directing for eviction without ascertaining how many appeals are pending, how many objections have been raised, how many of them have attained finality in terms of proceedings. It seems that no government wants to implement the FRA . There is a huge vested interest – while the government(s) want everyone to get land “rights” (and thereby win votes), they don’t want to give rights to the genuine adivasis. The government neither cares about the people nor for the forest. The government wants the people to stay, but without rights. Because if the people have rights, they’ll have to be asked for permission before diverting land for other purposes, and the government does not want to do that.
The Quint: So one can’t blame only the Centre for the way in which the FRA has been meddled with?
Ritwick Dutta: One cant blame only the Centre. It is a law for the states to defend and implement.
The Quint: The petitions were filed way back in 2008 and also seek recovery of forestland from possession of those persons, whose claims (about 20.5 lakh out of 44 lakh across states) under FRA stood rejected. So why is the SC passing directions nearly 11 years later?
Ritwick Dutta: The issue of the constitutional validity of the law cannot be confused with the issue of the implementation of the law. So in 2008, the court was looking at the legality and constitutionality of the law as it existed in 2008 (it had come up earlier). Today, if you get into the matter of implementation, it’s a different course of action. Now petitions challenging the constitutionality should have been ideally heard at the time the law was passed, now it’s come up 10-12 years after the implementation of the law itself. It’s like, you challenge the building of a dam, but by the time it comes up for hearing, the dam is completed. Then the court will say “oh the building is done, now what do we do?”
The Quint: If this mass eviction drive is to be implemented, upon whom is it incumbent to rehabilitate the tribals?
Ritwick Dutta: The law doesn’t provide for the rehabilitation of encroachers. There has to first be a conclusion that they are not forest dwellers and not indigenous people. The initiation of the process of the recognition is done by the Gram Sabha. But the Gram Sabha has also rejected a lot of rights. If you look at Arunachal and parts of the Northeast, they’re not giving land rights to many parties. For instance, in a Bodo area, a Gram Sabha may say that only Bodos are allowed (and no other indigenous people). Even a group of indigenous people must prove that their livelihood is dependent on forests and that they have always lived in forests, to be able to avail of their rights under FRA.
The Quint: The Centre has reportedly remained silent on this issue thus far, with the Opposition giving it flak and imploring it to defend the laws protecting tribal rights. What can the Centre do in such a scenario where the SC has already passed an order? What is the likelihood of a review petition overturning this order?
Ritwick Dutta: No review petition is required. All the states will come forward and say, “well, we are looking into it; huge number of issues, give us more time”. Then the Centre is going to say, “we need more time too,” by which time, the election dates would have been announced. By the time it comes up for the next lot of hearings, the bench will have changed, and the case will be back to square one. Nothing great will happen. As far as eviction is concerned, the governments don’t want to evict in accordance with the law. They want to use muscle power. So they are unlikely to evict because of a Supreme Court order.
At the end of the interview Dutta also added, “I have reason to believe that this whole thing is a conspiracy of the central government... before the elections... it has been silent so far... but it may come in with an ordinance or something, to act as a saviour of the (tribal / forest-dweller) community.”
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