Just ahead of the election to India’s parliament, the Supreme Court of India, on February 13, asked the state governments to evict the tribal people and other forest-dwellers whose claims under the Forest Rights Act (FRA) 2006 have been rejected.
The order that could impact nearly two million tribal families, which translates into about 8-10 million people, across India has snowballed into a major issue with the opposition parties cornering Prime Minister Narendra Modi led National Democratic Alliance (NDA) government on it.
Among the opposition parties, the Congress and the Communist Party of India (Marxist) led the attack on government as they alleged that it was the apathy of the central government in the Supreme Court that led to this situation. They said that the national government failing to secure justice for tribal people is not an incident in isolation but is an extension of Modi government’s anti-tribal policies over the last five years. The state political party, Jharkhand Mukti Morcha, too demanded that the government take urgent steps to ensure safety for tribal communities.
The quickest on the block was Congress President Rahul Gandhi who asked the chief ministers of all the Congress-ruled states to file a review petition in the case. The Campaign for Survival and Dignity, a national platform of Adivasi and forest dwellers’ organisations, announced “a national wave of struggle over the next two weeks” against the attack on tribal people whose claims under the FRA were rejected.
The Akhil Bhartiya Vanvasi Kalyan Ashram, considered to be an affiliate of the Rashtriya Swayamsevak Sangh (RSS) the ideological parent of the BJP, too came out heavily against the Modi government asking it to either bring an ordinance or file a review petition in the case to safeguard the interests of the tribal people.
With the mounting pressure, the BJP president Amit Shah too threw his hat into the ring stating that he has spoken to all chief ministers of “the BJP ruled states in the situation arising out of Supreme Court’s order on eviction of tribals living in Forest Areas. The states will be soon filing review petition and care will be taken to safeguard the rights of our tribals and prevent eviction.”
“BJP remains committed to the upliftment of our tribal brothers and sisters and we will do everything to protect their rights.I would also urge them to not fall in the trap of rumours from usual suspects,” Shah tweeted.
What is the controversy?
The controversy erupted when the SC directed the state governments to evict those tribal people and forest-dwellers whose claims under the FRA have been rejected. Soon after that, news reports highlighted how the decision could impact the lives of millions of tribal people.
FRA 2006 was enacted by the Congress-led United Progressive Alliance (UPA) government to correct the “historic injustice” meted out to tribal people in not being able to access the natural resources of the forests where they have lived for generations. However, its implementation remains unsatisfactory. The law provides for recognising and giving the forest rights to forest dwelling scheduled tribes and other traditional forest dwellers residing in the forests for generations but whose rights could not be recorded.
As per the data of the Union Ministry of Tribal Affairs (MoTA), at least one of every two claims filed under the FRA have been rejected by the states. The data reveals that about 4.22 million claims by individuals and communities were received till November 30, 2018, and of that 3.83 million claims (90.73%) have already been disposed. But of the total cases disposed of by the governments, about 1.93 million claims (over 50%) were rejected while 1.89 million claims were accepted and awarded titles.
Last year, in June 2018, the secretary of tribal affairs ministry wrote to the chief secretaries of all states on issues related to FRA’s implementation and warned against withholding or rejecting forest rights claims over frivolous grounds. MoTA had highlighted that claims, for instance, were rejected on grounds like calling the land, over which claims have been made, as “ecologically fragile land” – a term not legally tenable under the FRA Act.
In a meeting with the union environment ministry, the officials of the tribal affairs ministry highlighted the need for prior consultation before the environment ministry issuing any order having an impact on FRA process, outcome and tribal rights.
Political parties attack the government
Congress spokesperson Muhammad Khan stressed that “the Bharatiya Janata Party (BJP) has always treated the issue of tribal rights as a secondary issue.”
“The Congress would not rest until we ensure that tribal people get their rights. It is an important issue for us. Congress brought the FRA and ensured a strong base for it. For this government, tribal rights have always been an inconvenience – rather than something they were happy to comply with,” Khan told Mongabay-India.
Congress sources told Mongabay-India that the issue is being handled directly by Congress President Rahul Gandhi who has already written letters to the chief ministers of Chhattisgarh, Rajasthan and Madhya Pradesh to do everything to defend rights of tribals in courts by filing review petitions as well as outside. Congress formed the governments in these three states in December 2018 and wants to continue the momentum going into the 2019 parliamentary polls.
One of the major criticisms of the Modi government during the SC case has been that the government never made a serious effort to ensure justice to the tribal people. In a statement, the union tribal affairs ministry even tried to defend itself.
“It’s clarified that government of India, Ministry of Tribal Affairs is well aware of its responsibilities of defending the constitutional validity of the Forest Rights Act and the ministry will do everything at its disposal to safeguard the interests of the tribals as it has been doing so far. State governments are being sensitised from time to time for implementation of the various provisions of the FRA in letter and spirit,” the MoTA statement said.
A source in the tribal affairs ministry stated that the ministry is seeking legal advice to decide the future course. But even as the tribal affairs ministry is seeking advice, the politics on the issue is gaining ground.
Apart from the possible review petitions that could be filed by the states ruled by Congress, the Communist Party of India (Marxist) has asked PM Modi to bring an ordinance to protect the tribal people from eviction.
In a letter to Modi, CPI(M) leader Brinda Karat said that land occupied by tribal people is being handed over to big companies for various projects and also for mining under the programme of “ease of business” and therefore it is essential to set up an impartial body to go through the claims of tribals which have been rejected.
“In the last five years, your Government has passed several laws which dilute and eliminate the protections given by the Forest Rights Act. These include amendments passed to the Mining Act, the Compensatory Afforestation Act and several notifications from the MoEF (Ministry of Environment and Forest) which dilute the FRA,” said Karat.
During the last two years, several groups of farmers including tribal people have marched to Mumbai and Delhi demanding rightful price for their farm produce, loan waivers, proper implementation of labour laws and the FRA.
Former Jharkhand chief minister and Jharkhand Mukti Morcha’s executive president Hemant Soren too has trained his guns on Modi government. Soren is already on a statewide political tour where he is highlighting the “failure” of the government in protecting the rights of tribal people.
“Even after five years of continuous exploitation, apathy, neglect and violating tribal rights, BJP government has no remorse. It must stop violating tribal rights and destroying our livelihoods to benefit crony capitalist friends, else we adivasis (tribals) know to fight for what is rightfully ours,” Soren tweeted.
What doesn’t help the case of the present NDA government is that the earlier eviction of tribal people from forests happened during the previous NDA regime led by late PM A.B. Vajpayee – a point that Brinda Karat also stressed in her letter to PM Modi.
Karat in her letter to Modi highlighted that the earlier NDA government also had failed to protect the rights of adivasis in the earlier petitions in Supreme Court. “In May 2002, the NDA government had given an order for eviction of Adivasis following which lakhs of Adivasis were evicted,” said Karat.
Will the SC order unite the tribal population?
What politicians have realised is that the issue of eviction from forests could bring the tribal population of the country together and dent the political prospects of the BJP. As per the 2011 Census, the population of scheduled tribes in India is 104 million which is about 8.6% of the country’s overall population of about 1.2 billion.
Of the 543 parliamentary constituencies, where elections are scheduled to take place within a couple of months, there are 47 seats reserved for scheduled tribes. But that is not all, as there are many unreserved seats where there is a significant population of tribal people.
C.R. Bijoy of the Campaign for Survival and Dignity, a platform of Adivasi and forest dwellers’ movements from ten states in India, emphasised that “it is very natural for people to come together during a crisis.”
“For instance, in 2002, when evictions of forest dwellers started taking place, it led to coming together of organisations and people working on it from across India until FRA was passed in 2006. Going by information coming out now, people and organisations are again reaching out to each other. I would say the crisis gives an opportunity to bring FRA into the larger political consciousness, in media and bureaucracy,” Bijoy told Mongabay-India.
“Perhaps it is also an opportunity to ensure that the FRA is implemented properly and claims rejected are reviewed properly. The first opportunity was after its enactment and probably after ten years, this is an opportunity where it’s implementation is getting mainstreamed,” he added.
Bijoy, however, stated that this only might become an election issue in certain constituencies wherever the population of tribal people is significant like central India. “But, I don’t think it is going to become a major election agenda because (the national) election rhetoric is on a totally different plane,” he said.
Explaining further, advocate Sudeep Shrivastava stated that “none of the states in India has carried out the process of settling the claims under FRA in a well-informed manner – it means that in cases of rejection of a claim was the applicant informed about the appeal process.”
“The proceedings have been carried out in a shoddy manner. Wherever land was to be acquired for a development project the process of settling the rights and giving compensation was done within days,” he said.
Shrivastava believes that “there is no need to panic over the SC’s order as no state government can afford to forcibly evict tribal communities just two months before the elections.”
“There are at least 100 parliamentary seats across the country where the population of tribal people is significant and if the larger message about a forcible eviction goes there is a possibility of them voting as a block,” Shrivastava, who has been fighting a lot of court cases related to the rights of the tribal people, told Mongabay-India.
Criticism of SC order
Meanwhile, even as the politics around the issue is heating up, the criticism of the SC order is also increasing.
Professor Saurabh Bhattacharjee of the WB National University of Juridical Sciences said that “it is strange that such an order was passed in response to a petition challenging the constitutionality of the Forest Rights Act, without even addressing the constitutional question.”
“Especially, when the Forest Rights Act contains provisions against the eviction of forest-dwellers. It appears that the constitutional right to live with dignity of adivasis have been given a short shrift by the court for a selective understanding of legality,” said Bhattacharjee.
But the organisations – Wildlife First, the Nature Conservation Society, and the Tiger Research and Conservation Trust – on whose plea SC passed the order state that the court order “does not affect genuine claimants.”
Stating that there appears to be a lot of a lot of misunderstanding in the media on the SC order, the three organisations in a statement said that SC order is an “extremely important order to ensure the protection of forests, which have been severely affected due to ineligible/bogus claimants” under the FRA.
“Such claimants continue to occupy a huge area of forestland, including within national parks and sanctuaries, even though their claims have been rejected after due verification and an appeals process,” said the statement while stressing that the SC is focusing only on the recovery of forest land from bogus claimants whose claims stand rejected.
The case is expected to continue in the SC for months to come with review petitions that several non-BJP ruled states may file, but the order has indeed set the ball rolling for the upcoming elections.