In utter disregard for tribal rights, the government’s consortium of lawyers failed to even show up to the Supreme Court on February 13 to defend the Forest Rights Act (FRA). In response, the court, instead of enforcing the presence of a government counsel and deferring the matter to another date, chose to pass an imperious order mandating the states to evict one million tribal and other forest-dwelling households from forestlands across 16 states.
It is scandalous with regard to not just democratic procedures, but also jurisprudential ethics, when the fate of one million (and counting) people can rest on the abdication of responsibility and a deliberate act of omission by the government.
The court’s orders pertained to a case filed by wildlife groups, questioning the validity of the FRA. The petitioners had also demanded that state governments should evict all those whose claims over traditional forestlands had been rejected under the law.
Today, the number of rejected claims stands at approximately one million – a figure likely to go up as other states are pushed to comply. And the figure is likely to go up exponentially if, when the FRA comes up for review later in July this year, the Act itself were to get quashed.
A bone of contention
The Forest Rights Act, 2006, which entitles communities and protects claims over their generational land, has long been a bone of contention. Despite its ambiguities and many opacities, the FRA is a watershed law that entitles tribal land claims and seeks to grant, for the first time, negotiating power to tribal communities.
They could, if they want, now part with their land on their own terms or veto projects. The Dongria Kondh tribe in Odisha’s Niyamgiri Hills used this law to win a famous legal battle in 2013, in which they rejected the mining project of multinational bauxite giant Vedanta.
Predictably, the FRA has become a thorn in the flesh for both the state-corporation combine and for environmentalists alike, who find community rights and environmental sustainability mutually exclusive.
Ironically, both the developmentalists and the environmentalists (representing two mutually-conflicting set of aspirations and objectives) are united in their opposition to the FRA and local communities. This challenge in the SC is one more in the line of a sustained effort on part of governments, corporations and environmentalists to keep chipping away at this law until it becomes toothless.
There have been multiple attempts by the government: the October 2014 MoEF circular stating that the Act would not be applicable to forests less than 75 years old; or the order stating that collectors can give certificates bypassing FRA compliance in villages where only “plantations notified after 1930”; or the tussle between MoEF and the tribal affairs ministry (MoTA) over applicability of the FRA. The objective is to reduce the law to just rhetoric and optics, instead of meaningful legal entitlements.
While the conflict between developmental goals of the state – infrastructure projects, mining, industrial projects – and local forest dwellers has always been predictable, a less acknowledged conflict has been between environmental groups and tribal rights over forest land.
The forest bureaucracy, supported by highly vocal, hardline urban wildlife neo-conservationists, popularly dubbed the ‘tiger-wallahs’, has typically been distrustful of local communities. They find communities vulnerable to enticements of short-term gains that could put the forest and wildlife at risk.
They have continued to press for a statist model of conservation – a centralised bureaucratic forest management that would prevent a substantial devolution of powers to communities. The writ petition, by Wildlife First and Ors., challenging both the act and demanding evictions, is an outcome of the same narrative.
It sees local communities as being in conflict with the goals of conservation. These environmentalists may be a minority and represent marginal opinion, but they are capable of shaping public psychology to an unwarranted degree.
The case against the FRA
The case against the FRA and local communities claims rests on two issues. First, on the land claims being invalid on grounds laid down in the FRA. The fact is that the whole process of making a claim of an individual or community title is fraught with many ambiguities and lacunae.
How do tribals and OFTDs (other traditional forest-dwellers) prove continuous residence or dependence in the areas being claimed for three generations, that is, 75 years? This would date it back to the colonial period, when most of these areas were under princely states or zamindars, with no survey or land demarcation, and no government records.
Second, while oral histories and testimonials from village elders are legally acceptable forms of evidence, the bureaucratic takeover of the claim process has resulted in this provision being largely ignored. With what degree of fairness then can the bureaucracy or the SC, which has adjudicated the one million invalid claims, ascertain that people from deserving communities have not been left out?
Third, why are community claims routinely rejected and individual pattas more favoured, while ignoring rights over MFP? Environmental concerns would have ruled in favour of community property rights rather than individual ones. These are valid questions that seek answers from those who have been the arbiters of a million claims found to be in violation of FRA provisions.
Contrast this with the routine violation of FRA regulations – often under the MoEF’s watch. Land Conflict Watch (LCW), a network of researchers tracking land conflicts across the country, has so far documented 38 cases where tribals and forest-dwellers are protesting the diversion of forestland for developmental and mining projects which completely bypasses or insidiously circumvents the consent provision of the FRA. These cases are spread across Chhattisgarh, Odisha, Maharashtra, Andhra Pradesh, Himachal Pradesh, Telangana, Uttar Pradesh and Karnataka. Together, these conflicts affect close to one million people and are spread over 1,734 sq. km.
A common adversary
It is a curious paradox of our times that developmentalism and environmentalism – two yesteryear foes – seek a common adversary in marginalised tribal communities which have been imperilled and hemmed in from all sides.
One wonders what conscience, what notion of justice and fairness, guides those who seek to disenfranchise them further. The Tribal Health in India report by the Union Ministry of Health and Family Welfare (November 2018) states that over half of the country’s 104 million tribal population now resides outside India’s 809 tribal majority blocks – for a bunch of reasons that include displacement and forced eviction.
A study conducted by Nalin Negi and Sujata Ganguly for the University of Bielefeld, Germany (2011) states that around 50 million people have been displaced in India due to development projects – of which 40-50% have been tribals. On February 13, the Supreme Court of India added another one million to this count.
Rajshree Chandra is associate professor, Janki Devi Memorial College, University of Delhi