Supreme Court's Verdict on Forests Rights Act, 2006


Supreme Court's Verdict on Forests Rights Act, 2006

CONTEXT

Forest Dwellers claims of 10 lakh families under the Forests Rights Act (FRA) were rejected by the forest department. These families belong to Schedule Tribes and Other Traditional Forest Dwellers.

On the above lines, Supreme Court has directed governments of Assam, Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, Tamil Nadu, Telengana, Tripura, Uttrakhand, Uttar Pradesh and West Bengal to ensure eviction.

ABOUT

The FRA concerns the rights of forest-dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India.

Union Ministry of Tribal Affairs (MoTA) is the nodal ministry for the implementation of FRA.

If a claim is rejected, the claimant has to be informed about the reasons for the rejection. Then, the claimant has 90 days to appeal against it.

BACKGROUND

Nearly 250 million people live in and around forests in India, of which the estimated indigenous Adivasi or tribal population stands at about 100 million.

India’s forests are governed by two main laws:
  • The Indian Forest Act, 1927: Empowers the government to declare any area to be a reserved forest, protected forest or village forest.
  • The Wild Life (Protection) Act, 1972: Allows any area to be constituted as a “protected area”- a national park, wildlife sanctuary, tiger reserve or community conservation area.
Under these laws, the rights of people living in the area declared as a forest or protected area are to be “settled” by a “forest settlement officer.” This basically requires that officer to enquire into the claims of people to land, minor forest produce, etc., and, in the case of claims found to be valid, to allow them to continue or to extinguish them by paying compensation.

Studies have shown that in many areas this process either did not take place at all or took place in a highly faulty manner. Those whose rights are not recorded during the settlement process are susceptible to eviction at any time. This “legal twilight zone” leads to harassment, evictions, extortion of money and sexual molestation of forest dwellers by forest officials, who wield absolute authority over forest dwellers’ livelihoods and daily lives.

The demand for the law has seen massive national demonstrations involving hundreds of thousands of people. Supporters of the Act claim that it will redress the “historical injustice” committed against forest dwellers. Opponents of the law claim it will lead to massive forest destruction and should be repealed.

ANALYSIS

Constitutional Provisions:

The presence of Article 19(5) in the Fundamental Rights chapter of the Constitution, which specifically enjoins the state to make laws “for the protection of the interests of any Scheduled Tribe”, is vital.

Supreme Court order of the eviction in complete disregard of this core and express fundamental right protection to Adivasis (as distinct from legal/statutory protection), which protects them from a range of state and non-state intrusions in Scheduled Areas as well as from the perennial threat of eviction from their homelands.

Inefficiencies in process of the rejecting the claims:

In states of Maharashtra and Gujarat, claims have been rejected due to lack of satellite imagery.

There is a need to have a re-look into the cases of doubtful rejections so that any rightful claim does not get denied.

They are also concerns about the high rejection rate of the claims of the Other Traditional Forest Dwellers (those who are not Schedule Tribes) in left wing extremism-affected areas, due to the wrong interpretation of FRA’s provisions.

The State Scheduled Tribes and Scheduled Caste Development stated (November 2016) that instructions were issued (August 2015) to review and treat the rejected claims as suo motu appeals at the next higher level and dispose of the same by giving each claimant an opportunity of being heard. However, no such review was conducted as of September 2016.

Possible consequences of the judgement:

On government: This eviction will be creating grounds for unrest and agitation and can also fuel extremism.

On livelihood of people: It is noted that for these people of these communities the right to own economic resources had been violated because of forced eviction. Eviction and loss of grazing land has a detrimental effect on livestock economy. The livelihood changes serve to underline the resilience of these communities response to impoverishment.

Way Forward:

The Supreme Court has, on many occasions, risen to uphold constitutional rights by creatively interpreting the law.

It is the supreme obligation of the Supreme Court to protect the Scheduled Tribes and other vulnerable communities from the grave harms of violent dispossession.

States must take all measures to prevent the occurrence of evictions. States should adopt specific national strategies to fulfil the right to adequate housing that are informed by the meaningful participation of different groups in society, particularly those commonly affected by evictions.

While there may be exceptional circumstances in certain cases, eviction is not always the only way of addressing them. Indeed, exploring all feasible alternatives to eviction is not only required by international human rights norms, such alternatives are also often less costly, and have better and more sustainable results than do evictions. These results are in large part due to the involvement of those affected by the eviction in the planning and development projects that affect their lives so profoundly.

A common feature in many evictions is the lack of due process (the right to be treated fairly, efficiently and effectively by the administration of justice) and meaningful recourse mechanisms. Some eviction notices explicitly state that the eviction will be carried out even if a complaint has been filed. Some courts work as a clearing house for authorities decisions and do not consider fundamental rights that are protected by national and international law in their decisions. In many cases, houses are destroyed without a court order or without giving residents enough time to appeal against the decision to evict.

Last but not the least, evictions should not result in homelessness or put people in life- or health threatening situations. Alternative and sustainable accommodation should be provided before any eviction is carried out.

No comments: