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The Controversial Supreme Court Order on Forest Rights Act

An Introduction to Forest Right Act
  • In the colonial era, the British diverted abundant forest wealth of the nation to meet their economic needs. As a result, tribal and forest-dwelling communities, who had been living within the forests in harmony with the environment and the ecosystem, continued to live inside the forests in  insecurity. This situation continued even after independence as they were marginalised.
  • Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or simply Forest Rights Act (FRA) is a landmark legislation in India drafted to give due recognition to the forest rights of tribal communities.
  • FRA recognize and vest forest rights in forest dwelling Scheduled Tribes (FDSTs), who have been occupying the land before October 25, 1980 [The Forest (Conservation) Act, 1980 came into force on this date].
  • The Act is crucial to the rights of millions of tribals and other forest dwellers in different parts of our country as it provides both individual rights to cultivated land in forestland and community rights over common property resources. Many believe that this act paved the way to undo the ‘historic injustice’ done to the tribals and other forest dwellers.
Provisions of the Act
  • The Act outlines 12 forest rights which include:
    • Title rights – i.e. ownership – to land that is being farmed by tribals or forest dwellers as on 13 December 2005, subject to a maximum of 4 hectares; ownership is only for land that is actually being cultivated by the concerned family as on that date, meaning that no new lands are granted
    • Use rights – to minor forest produce (also including ownership), to grazing areas, to pastoralist routes, etc.
    • Relief and development rights – to rehabilitation in case of illegal eviction or forced displacement; and to basic amenities, subject to restrictions for forest protection
    • Forest management rights – to protect forests and wildlife
  • The rights would be restricted to the area under actual occupation and shall not exceed an area of 2.5 hectares per nuclear family.

Eligibility

  • The Act recognizes two classes of persons :
    • Forest Dwelling Scheduled Tribe –  Persons belonging to the scheduled tribe who “primarily reside in forests” and who depend on forests and forest land for a livelihood.
    • Other Traditional Forest Dweller (OTFD) – persons residing in forest, or dependent on forest produce for 75 years
Process of recognition of rights
  • The Forest Rights Act recognises individual rights of tribals over forest areas, if they can prove occupation before Dec. 13, 2005.
  • The claims over forest lands are processed through a three-tier system: the gram sabha, or general assembly of the village where the claims are first submitted; a sub-divisional-level committe (SDLC) headed by a government officer; and a district-level committee(DLC) headed by the district collector.
  • 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.

How the claims are processed

  • Accompanied by officials from the revenue and forest departments, the gram sabha’s forest rights committee verifies claims by a field visit, collecting additional evidence, if needed, from claimants and witnesses.
  • The committee then submits its opinion to the gram sabha, which approves or rejects the claim. Approved claims are forwarded to the SDLC for review.
  • If approved, the claim is forwarded to the DLC, which is the final legal authority to approve or reject claims.
  • Appeals against rejection follow the same order. If the gram sabha or SLDC rejects a claim, the claimant can appeal to the SDLC or DLC.
The Recent Supreme Court Order
  • On February 13, the Supreme Court ordered the eviction of lakhs belonging to the Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) categories across 16 States, whose claim as forest-dwellers has been rejected under the Forest Rights Act. 
  • A Bench of Justices Arun Mishra, Navin Sinha and Indira Banerjee ordered the Chief Secretaries of many of these States to evict those whose claims were finally rejected. The court directed that the eviction be carried out by July 24, 2019.
  • The court also ordered the Forest Survey of India (FSI) to make a satellite survey and place on record the “encroachment positions.”
  • The direction comes in a batch of petitions filed by an NGO Wildlife First and few retired forest officials, challenging the validity of Forests Rights Act. According to the petitioners, the Act has led to deforestation and encroachment of forest land. They also argued that the rejection of an FRA claim implies that the claimant is an encroacher and not a bona fide forest dweller.
  • Madhya Pradesh has the highest number of rejected claims, which approximately come to 3.5 lakhs, followed by Odisha, with nearly 1.5 lakh rejected claims. Uttarakhand has the least number of rejected claims, 51. The states of Goa, Gujarat and Himachal Pradesh are yet to adjudicate on the filed claims, and they have been directed to complete the exercise by the next posting date.
What is the problem?
  • The February 13 order is based on affidavits filed by the States. Nearly 11,27,446 tribal and other forest-dwelling households have been rejected as per the rejection claims from 16 states that were submitted in the court
  • The affidavits, however, do not make clear whether the due process of law was observed before the claims were rejected.
  • The Centre argues that the rejection of claims is particularly high in the States hit by Left-Wing Extremism, where tribal population is high.
  • The forest land claims of these tribes and forest-dwellers are mostly rejected by the States.
  • Being poor and illiterate, living in remote areas, they do not know the appropriate procedure for filing claims. The gram sabhas, which initiate the verification of their claims, are low on awareness of how to deal with them. The rejection orders are not even communicated to these communities.

The state-wise break-up of claims :

  • Andhra Pradesh : 66,351 claims rejected
  • Assam : 22,3891 claims of STs and 5136 claims of OTFDs
  • Bihar : 4354 (2666 STs and 1688 OTFDs)
  • Chattisgarh : 20,095 claims rejected
  • Goa : Yet to adjudicate on 6094 ST claims and 4036 OTFD claims filed
  • Gujarat : Yet to adjudicate on 1,68,899 ST claims and 13,970 OTFD claims
  • H.P : Yet to adjudicate on 2131 ST claims and 92 OTFD claims
  • Jharkhand : 27,809 ST claims and 298 OTFD claims rejected
  • Karnataka : 35, 521 ST claims and 1,41,019 OTFD claims rejected
  • Kerala : 894 ST claims rejected
  • M.P : 2,04,123 ST claims and 1,50,664 OTFD claims rejected
  • Maharashtra : 13,712 ST claims and 8797 OTFD claims rejected.
  • Odisha : 1,22,250 ST claims and 26,620 OTFD claims rejected
  • Rajasthan : 36,492 ST claims and 577 OTFD claims rejected
  • Tamil Nadu : 7148 ST claims and 1811 OTFD claims rejected
  • Telengana : 82,075 claims rejected
  • Tripura : 34,483 ST claims and 33,774 OTFD claims rejected
  • Uttarakhand : 35 ST claims and 16 OTFD claims rejected
  • U.P : 20,494 ST claims and 38,167 OTFD claims rejected
  • W.B : 50, 288 ST claims and 35,586 OTFD claims rejected

Recent Development
  • On February 28, the Supreme Court stayed its own order. 
  • The bench also directed that the affidavits have to be filed by the chief secretaries of the states giving details of various steps covered for carrying out the eviction of the forest dwellers. 
  • The Court has decided to examine whether due process was followed by the gram sabhas and the States under the Forest Rights Act before the claims were rejected. It posted the matter for further hearing on July 10.

Courtesy: The Hindu, Live Law, Bloomberg Quint

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