Context: Supreme Court in Feb ordered tribal eviction, but later stayed the order temporarily. This article tells about the forest rights Act.
Timeline of the issue
- A petition filed by wildlife conservationists and former forest department officials in Supreme Court (SC) against the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
- The issue was that Indian Forests are being relentlessly eroded by humans encroaching on animal habitats and there are thousands of villagers living illegally on the protected forest due to the protection of the Forest Rights Act.
- The Supreme Court of India on February 13, 2019, asked state governments to file affidavits about the action taken against encroachments on forest lands and ordered the eviction of tribals by July 2019.
- In its written order on February 20, SC asked the states to act against encroachers where eviction notices were given.
- After widespread protests and criticisms of its decision and a petition by the centre, SC on Feb, 28 stayed its order temporarily
- Out of Nearly 250 million people living in and around forests in India, the estimated indigenous Adivasi or tribal population stands at about 100 million.
- A 2016 report showed that of the 44 lakh claims filed before appropriate authorities in the different States, 20.5 lakh claims (46.5%) were rejected.
- As per estimates of Xaxa committee, 60% of the forest area in the country is in tribal areas.
Forest Rights Act, 2006
- FRA was enacted to right the historical injustice caused to forest-dependent communities during the colonial and post-independence period by granting them rights over forest lands where they have traditionally resided.
- It recognizes the rights of forest-dependent communities towards the conservation of forest biodiversity and maintenance of ecological balance while ensuring their livelihood and food security.
Provision of verification of forest rights under FRA, 2006
Under section-6, FRA, 2006 provides for a 3-level verification process and grievance redressal mechanism regarding acceptance or rejection of the claims on forests.
- The authority to initiate the process for determination of individual or community forest rights is vested with Gram Sabha.
- Gram Sabha is authorised for receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim.
- The Gram Sabha shall, then, pass a resolution and forward a copy to the Sub-Divisional Level Committee.
- Any person aggrieved with the decision of Gram Sabha can file a petition to the Sub-Divisional Level Committee.
- Sub-Divisional Level Committee will dispose of the petition in a timely manner.
Sub-Divisional Level Committee
- The Sub-Divisional Level Committee shall examine the resolution passed by the Gram Sabha and prepare the record of forest rights and forward it through the Sub-Divisional Officer to the District Level Committee for a final decision.
- Any aggrieved party with the decision of Sub-Divisional Level Committee may file a petition to the District Level Committee within sixty days from the date of the decision of the Sub-Divisional Level Committee.
- Any person aggrieved with the decision of Gram Sabha cannot directly file a petition with the District Level Committee.
District Level Committee
- The State Government shall constitute a District Level Committee to consider and finally approve the record of forest rights prepared by the Sub-Divisional Level Committee.
- The decision of the District Level Committee on the record of forest rights shall be final and binding.
- The State Government shall constitute a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights.
Conditions that one must satisfy to get rights
Well, a person to be eligible under the act for recognition of forest right must fulfil the following conditions:
- The person must be residing in the forest for the mentioned period in the act.
- A person or community depends upon forest and forest land for a livelihood.
- STs must prove that they have ‘primarily resided in the forest or forest land prior to 13-12-2005’
- Whereas, Other Traditional Forest Dweller must prove that they have ‘primarily resided in forests or on forest lands for three generations (75 years) prior to 13-12-2005’.
- Every forest claim must be accompanied by two documents as evidence, which could be:
- documents issued by the government; research studies; statement by elders; and
- even physical evidence of possession or use of land, such as wells.
Why the Supreme Court’s eviction order is not correct?
- Article 19(5) in the Fundamental Rights specifically enjoins the state to make laws “for the protection of the interests of any Scheduled Tribe”.
- the area marked for eviction falls under areas designated under Schedule V and Schedule VI of the Constitution, there has been no mention of the implication of eviction order on the governance of the areas.
- In Samata judgement, the supreme court upheld the constitutional right of tribal people and forbid the government from any eviction of tribal population.
- 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.
What are the challenges facing tribals?
SC order before putting the stay on it stated that tribals whose claims for forest pattas were rejected should be evicted. But it is not as simple as stated
- Tribal communities as per their nature do not stay at a single place. British tried to “settle” the tribal by tying him to a patch of land but were not successful. Traditionally tribal communities have resisted any form of written records.
- Now, the young generation of tribals is being asked about the land pattas and evidence of ownership of a small patch of land, which majority of tribals cannot produce due to their traditional nature.
- The tribal claimant’s sole proof is the oral testimony of her elders in the village.
- Thus, FRA has recognised the gram sabha as the competent and ultimate local authority in its jurisdiction.
- But, the rejection of the thousands of claims clearly shows how the gram sabha’s authority has been denied by the Forest departments in pursuit of their own agendas
- There have been many futile attempts by the Ministry of tribal affairs (MoTA) to get details on the basis of which the forest departments are rejecting claims of right to residence and cultivation.
- Xaxa Committee observed that “claims are being rejected without assigning reasons, or based on the wrong interpretation of the ‘OTFD’ definition and the ‘dependence’ clause, or simply for lack of evidence or ‘absence of GPS survey.
- The rejections are not being communicated to the claimants, and their right to appeal is not being explained to them nor its exercise facilitated.
- Thus, in the absence of authentic ownership documents ruthless delegitimating of local authority i.e, the gram sabhas will lead to the eviction of lakhs of legitimate tribals together with few illegitimate claimants.
Although, it may appear at odds to the modern practice, the only way to ensure justice to the millions of tribal claimants relying upon memory and oral narratives as their sole proof of existence, the failure of which will lead to unprecedented unrest among the forest-dwelling communities.