The Supreme Court passed an Order[i] on 13th February, 2019 (hereinafter, “the Order”) requiring the eviction of forest dwellers whose claims to forest land had been rejected by the competent authorities.[ii] The case pertains to the claims of forest dwellers to forest lands in different states viz. Assam, Bihar, Chhattisgarh, Goa etc. The Court ordered eviction of these forest dwellers. Interestingly, this Order was stayed by the Hon’ble Court on 28th February (hereinafter, “the Stay Order”), thereby, retracting the order for eviction of over 10 Lakh forest dwellers.[iii] The Petitioners had challenged the vires of the Forest Rights Act by contending that the rights of forest dwellers are putting the forest in peril.
The article aims to critically analyse the hurried order of the Supreme Court and in that light, deal with the vires of the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006[iv] (hereinafter, “The Act”) and its impact on the dichotomy between the conservationists and forest dwellers.
The Act recognises forest rights of the Scheduled Tribes (hereinafter, “STs”) and Other Traditional Forest Dwellers (hereinafter, “OTFD”).[v] This legislation has been a subject of litigation in various High Courts[vi] and in the Supreme Court[vii] as well. The instant case is another such litigation brought forward by wildlife conservationists who plead that the recognition of such rights is harming the forests.
The Order was based, prima facie, on the affidavits provided by different states citing the total number of claims to the land and the rejected claims of the forest dwellers. The Supreme Court did not look into the merits of the case or tried to check whether due process has been followed or not. This can be inferred from the reasoning provided in the Stay Order[viii] which clearly required the state authorities to furnish whether rejections were made after following due process. Due to the order, all those people (roughly over 10 Lakh people) whose claims were rejected were required to be evacuated under the directions of the Chief Secretary of the respective states.[ix]
The Act is a law passed to “recognize and vest the forest rights and occupation in forest land”[x] of tribes and other forest dwellers, in order to correct the historical injustice that has been committed against these people.[xi] The contention of the Petitioners is that the presence of forest dwellers leads to destruction of ecosystem and deforestation. This contention seems illogical, especially when the Act itself recognizes the importance of the traditional forest dwellers for the “very survival and sustainability of the forest ecosystem”.[xii] This stems from the basic idea that people will not destroy and instead, seek to conserve their home and survival system.
Thus, the argument that the recognition of rights of the tribal or the forest dwellers will lead to deforestation cannot stand. There have been numerous studies[xiii] which highlight the crucial role that forest dwellers play in the conservation of forests. Since these people have lived in forests for centuries, they have the requisite knowledge to manage and conserve the resources of the forests.[xiv]
The pertinent role that tribal and forest dwellers play in the conservation and preservation of forested lands is evident from the case of the Dongria Kondh tribe in Odisha[xv]. The tribe fought a long battle against the Vedanta group to stop them from mining for bauxite in the Niyamgiri. The Supreme Court in a landmark verdict, while relying on the Act, held that clearance for the project can only be given after obtaining the consent of the gram sabhas in the region. It was stated by the Court “we have realized that forests have the best chance to survive if communities participate in their conservation and regeneration measures”.[xvi] All twelve gram sabhas unanimously vetoed the project.
As was seen in the Niyamgiri case, the Supreme Court has been a supporter of tribal rights. In this case, the Supreme Court linked indigenous rights, constitutional protections of the STs and religious rights as one set of protections for STs and forest dwellers.[xvii] The eviction is hence, also a disregard of the constitutional protections vested on the STs.
The makers of the Constitution had, in all their wisdom, written a provision in the Constitution, under Article 19(5), curtailing the general rights of the citizens to move freely, settle in and acquire property in favour of the rights of the STs.[xviii] The Constitution, under Article 46, provides that it is the duty of the State to ensure that the STs are not subjected to social injustice and exploitation.[xix] This decision of the Court[xx], in the absence of the representatives of the Government, arguing for the rights of the STs, is prima facie unjust and exploitative.
Moreover, the argument of bogus claims[xxi] put forward by the Petitioners cannot be regarded without understanding the potential motive of the rejection of the claims. The claims may have been rejected since recognition of rights makes it tougher for governments to allot land for other purposes. For example, the National Green Tribunal had asked the State Government of Manipur to seek forest clearance for the construction of the Mapithel Dam.[xxii] This required the State Government to prove that the tribals would not be adversely affected. Since the government was keen to construct the dam, it refused to recognise the rights of the tribals and the forest dwellers.[xxiii]
The point to be taken into consideration is the system for grant or rejection of the claims of such forest dwellers in the Act. Section 6 of the Act provides for the procedures for the recognition of the rights of such forest dwellers. It provides at the initial stage- the Gram Sabha, then the Sub-Divisional Level Committee and then a petition may be filed by the aggrieved in the District Level Committee for a final decision which shall be binding.[xxiv] It also provides that any such petition shall not be disposed without giving a reasonable opportunity to the aggrieved to present his case.[xxv]
Moreover, the Guidelines[xxvi] and Rules[xxvii] framed under the Act pertaining to the forest rights of such forest dwellers also provide for certain protections from the rejection of their claims. Guideline relating to Process of Recognition of Rights emphasizes on the three-tiered mechanism for acceptance or rejection of claims.[xxviii] Furthermore, Rule 12-A of the Amended Rules, 2012[xxix] provides that any rejection of the claim by the Gram Sabha shall be communicated in person to the claimant to enable him to prefer a petition to the Sub-Divisional level Committee. Also, it provides that no such rejection of claims shall be based on any technical or procedural grounds.
Rule 13[xxx] provides for different kinds of evidence which needs to be considered, thereby, supplementing Rule 12-A that provides that at least two evidence need to be considered with reasons in writing before rejecting any claim.[xxxi] Also, the claimants cannot be forced to bring forth any one particular form of evidence. Moreover, satellite imagery can merely be used to supplement evidences tendered by the claimants and not be a replacement of other evidences.[xxxii]
In light of the afore-mentioned legal provisions, it is imperative that due process, as is laid down, is followed before rejection of any of the claims. The Stay Order also highlighted the need of following the due procedures. It raised a concern that many of the forest dwellers may not even possess the requisite documents and that, the eviction should be done only in compliance with the Act.[xxxiii]
The ground for staying the Order puts up the question of effective implementation of the statute by the competent authorities and whether such authorities are using it to grind their own axe. A Gujarat High Court Ruling[xxxiv] clearly indicated that the Act has been misused by the authorities by rejecting numerous claims of the forest dwellers and thereby using the land according to their own benefit. In this case, there was a grave misapplication of the law and due process was not followed. The Court ordered the authorities to furnish documents providing that due process has been followed with respect to Section 6 of the Act and Rules 12-A and 13 of the Amended Rules, 2012.
The vires of the Act has been challenged in the case of Union of India v. Akhil Bharatiya Adivasi Vikasa Parishad[xxxv] but the case is pending in the Supreme Court till date. However, the impugned legislation has been held to be a benevolent legislation[xxxvi]; providing for rights to the forest dwellers along with its harmonious construction with the forest conservationist demands. It imposes duties upon the forest dwellers to protect the wild life to ensure that the habitat is preserved from any destructive practices inter alia.[xxxvii]
Also, the provisions of the Act itself outline certain pre-requisites that must be adhered to in case the forest rights mentioned need to be modified, due to concerns of protection of wildlife, as the Petitioners in the case have brought forth.
The Act mandates that these rights can be affected only if firstly, it has been well established that their presence is causing irreversible damage to the species and habitat and if, other options like coexistence are not viable; secondly, if a resettlement package has been prepared and communicated; and lastly, if the free consent of the Gram Sabhas has been obtained.[xxxviii]
Additionally, these rights are only provided to the people who had occupied forest land before 13th December, 2005 which is a reasonable classification provided by the Act. This classification is reasonable and intelligible as it makes a valid distinction between those people living in the forest areas before the enactment of the legislation and those who occupied it after the enactment.
Lastly, as already substantiated, this legislation furthers the objectives of Articles 19 and 46 of the Constitution and thus, does not violate the fundamentals of the Constitution. It, instead, is balancing the interests of the forest dwellers residing in those territories and the pursuits of forest conservation and preservation.
Therefore, the legislation has sought to solve the dichotomy between the forest dwellers and the conservationists. It has also been established that the Stay Order is a recognition of the fact that due process need to be followed before rejection of any such claims by the forest dwellers.
[i] Wildlife First v. Ministry of Forest and Environment, 2019 SCCOnLine SC 238.
[ii] Arpan Chaturvedi, “Supreme Court Orders Eviction of more than 10 Lakh Tribals”, Bloomberg Quint, https://www.bloombergquint.com/law-and-policy/supreme-court-orders-eviction-of-more-than-10-lakh-tribals#gs.hfD0MfOA (last accessed on March 4 2019).
[iii] Mehal Jain, “SC Stays Order Directing States To Evict Persons Whose Claims As Forest Dwellers Were Rejected”, LiveLaw, https://www.livelaw.in/top-stories/sc-stays-order-directing-states-to-evict-persons-whose-claims-as-forest-dwellers-were-rejected-143228 (last accessed on March 4 2019).
[iv] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 [hereinafter, the Forest Rights Act]
[v] The Forest Rights Act, 2006, s. 3.
[vi] Lalba Nana Bethekar v. Sub-Divisional Officer and Forest Rights Coordinator, (2017) 4 Mah LJ 433; Ramar v. Union of India, 2014 SCC OnLine Mad 7935.
[vii] Union of India v. Akhil Bharatiya Adivasi Vikasa Parishad, (2018) 12 SCC 375; Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, (2013) 6 SCC 476.
[viii] Jain, supra note 4.
[ix] Wildlife First, supra note 2.
[x] The Forest Rights Act, 2006, Preamble.
[xi] Id.
[xii] id.
[xiii] Claudia Sobrevila, “The Role of Indigenous People in Biodiversity Conservation”, World Bank Group, May, 2008, available at https://siteresources.worldbank.org/INTBIODIVERSITY/Resources/RoleofIndigenousPeoplesinBiodiversityConservation.pdf.; Madhav Gadgil, “Conserving Biodiversity as If People Matter: A Case Study from India.” Ambio, vol. 21, no. 3, 1992, pp. 266–270. JSTOR, accessed via www.jstor.org/stable/4313937.
[xiv] Trupti Parekh & Parth Shah, ‘Keepers of Forests: Foresters or Forest Dwellers’, Centre for Civil Society, available at https://ccs.in/sites/all/books/com_books/terra-forest-dwellers-versus-foresters.pdf (last accessed on March 4, 2019).
[xv] Orissa Mining Corporation v. Ministry of Environment and Forest (2013) 6 SCR 881.
[xvi] Id.
[xvii] ‘Supreme Court Judgement on Vedanta case’, available at https://www.fra.org.in/ASP_Court_Cases_UploadedFIle/%7B55233dc5-b38a-4c53-9228-00a2b8d19034%7D_Briefing_note_on_vedanta_judgment_April_18_2013.pdf (last accessed on March 4, 2019)
[xviii] The Constitution of India, 1950, art. 19(5).
[xix] The Constitution of India, 1950, art. 46.
[xx] Wildlife First v. Ministry of Forest and Environment, 2019 SCCOnLine SC 238.
[xxi] id.
[xxii] Themrie Tuithung v. State of Manipur 2014 SCCOnLine NGT 2269.
[xxiii] BaharDutt, “Failing the Forest”, The Hindu, March 4, 2019, at p.9.
[xxiv] The Forest Rights Act, 2006, s. 6(6).
[xxv] id., s. 6(4).
[xxvi] The Guidelines on the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
[xxvii] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.
[xxviii] Guidelines, supra note 27, Guideline (i).
[xxix] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012.
[xxx] Rules, supra note 28, R. 13.
[xxxi] Rules, supra note 30, R. 12-A
[xxxii] id., Rule 12-A(11).
[xxxiii] Jain, supra note 4.
[xxxiv] Action Research in Community Health and Development v. State of Gujarat, 2013 SCC OnLine Guj 2583.
[xxxv] Union of India v. Akhil Bharatiya Adivasi Vikasa Parishad, (2018) 12 SCC 375
[xxxvi] id.
[xxxvii] The Forest Rights Act, 2006, s. 5.
[xxxviii]The Forest Rights Act, 2006, s. 4(2)(e).
By Aditya Vyas and Stuti Srivastava, Associate Editors, RGNUL Student Research Review