Does the Supreme Court order mean eviction of forest dwellers right away?

Some reasons why the rejection of FRA does not amount to a claimant being an encroacher

By Ishan Kukreti
Published: Thursday 21 February 2019
Representational Photo. Credit: Getty Images Representational Photo. Credit: Getty Images

An amnesia of sorts has developed among state government authorities when it comes to the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA), 2006, and the process to be followed once a claim has been rejected.

In the February 13, 2019 hearing of a petition by wildlife organisations and retired forest officials against the Forest Rights Act, the written order of which came out on February 20, the Supreme Court has asked authorities of  21 states to give affidavits explaining why evictions, wherever ordered, have not taken place.

The apex court has also asked some states to pass orders for eviction wherever the rejection of claims under the Forest Rights Act has taken place. This has to be done before the next hearing of the case scheduled on July 27, 2019. 

The SC’s statements are not the end of the matter. Let us know why:

1) Legally, the rejection of a claim is not the last thing and the claimant cannot be evicted solely for that reason  

In fact, the apex court had passed a similar order on January 29, 2016, in the same case, asking states to file affidavits detailing the number of claims rejected and why they have not been evicted within two weeks. This order was immediately followed by a clarification by the Union Ministry of Tribal Affairs (MoTA) — the nodal ministry for the implementation of FRA — on February 5, 2016.

In this clarification, the ministry had pointed towards the process to be followed after a claim is rejected and the need to put that data in court along with the data on just the number of rejected claims.

“In order to place the complete information before the honourable court, it may be necessary to provide details of the process that is followed in case of rejection of claims, including communication of reason, opportunity of appeal, and cases where claims are being re-examined due to wrongful rejection,” the clarification said.

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.

“No petition of the aggrieved person shall be disposed of, unless he has been given a reasonable opportunity to present anything in support of his claim,” the law says.

2) Last June itself, the ministry told chief secretaries about problems evicting those whose FRA claims were rejected

“It has come to the notice of MoTA that state forest authorities move immediately to evict people whose claims under FRA are rejected, without waiting for a decision on review or appeal or allowing time for filling appeal/review ostensibly under the garb of the Order of March 2018 from honourable Apex Court…Such an action while depriving aggrieved persons the opportunity to prefer appeal before SDLC (Sub-Divisional Level Committee) or DLC (District Level Committee), as the case may be, violates the spirit of FRA, 2006, besides creating grounds for unrest and agitation and also fuels extremism,” MoTA said.      

3) The SC has given states 150 days

However, if the process of review is filed and all the provisions of FRA are followed, it shall take around 240 days for a claim to be finally rejected in totality, according to Giri Rao of Vasundhara, a Bhubaneshwar-based non-profit working with tribal issues related to FRA.

4) In many places like Gujarat and Maharashtra, claims have been rejected due to the lack of satellite imagery

This is despite MoTA’s guidelines of July 27, 2015, regarding geo-referencing for assessment of potential areas and re-examination of rejected claims under FRA. The guideline specifically mentioned that satellite imagery should be used as supplementary evidence and “claims rejected on the grounds of insufficient evidences or which prima-facie requires additional examination may be re-examined.”

5) High rejection of claims

Letters by MoTA dated September 12, 2014, and April 10, 2015, sent to all the Principal Secretaries of the states point towards the high rate of rejection of claims. “There is a need to have a re-look into the cases of doubtful rejections so that any rightful claim does not get denied,” it says. They also raise concern 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.

6) There is no data available on the status of the appeal process or how many appeals have been filed

A 2016 Comptroller and Auditor General of India (CAG) on Odisha found that, “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.”

Latest data compiled by MoTA on the implementation of FRA till November 30, 2018, shows that there have been more claims rejected than the number of claims for which title deed distributed. Of the approximately 42.24 lakh claims — both, individual and community-filed — so far, around 18.94 claims have been given title deeds, while around 19.39 claims have been rejected. 

7) Who is an encroacher?

While on one hand, this is a narrow definition of who is or is not an encroacher, there is a sense of déjà vu in the current on-goings in the Supreme Court. The situation created by the February 13 order of the court directing states to get those whose claims under FRA has been rejected to be evicted is reminiscent of another order of the same court which it passed some 16 years ago.

Then, in the Writ Petition number 202 of 1995 — Godavarman vs the Union of India and others — the apex court passed an order in May 2002, asking states about the status of encroachment on forest land. However, an over-enthusiastic Ministry of Environment and Forest (MoEF), through a circular, drafted May 3, 2002, asked states to clear encroachments by September 30, 2002.

The situation is very similar today. While back in 2002, MoEF was a step ahead in ordering eviction, this time around the ministry has been silent in the hearings — in the last four hearings MoEF has not said anything.

What is different this time is that while the developments of 2002 were the genesis of the Forest Rights Act, this time around, the evictions have been ordered despite forest dwellers being protected by the FRA, as the government — MoEF and MoTA — silently watches from the sidelines.

The understanding of “encroachment” is that those forest dwellers whose claims under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA), 2006, have been rejected are encroachers. More importantly, what is lacking here is the question of provisions of FRA which give the claimants the right to appeal against the rejection of their claims.

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