Forest Rights organisations urge GOI to defend FRA 2006 Matter concerns SC order on eviction of forest dwellers

10, Jul 2019 | Sushmita

Four national platforms of Adivasi and Forest dwellers’ organisations have written strong letters to the Bharatiya Janata Party (BJP)-led central government on the issues of Supreme Court eviction order, amendments to the Indian Forest Act and large scale corruption in the name of afforestation and “development of mining-affected areas”. The platforms include Adivasi Adhikar Rashtriya Manch, Akhil Bharatiya Adivasi Mahasabha, Campaign for Survival and Dignity and Bharat Jan Andolan.

 

The memoranda are in the context of the controversial ongoing proceedings in the Supreme Court of India in petitions filed by “conservation groups” wherein the SC had passed mass scale eviction orders in February 2019. During the January-February 2019 hearing of the 2008 petitions in the Supreme Court, the Modi government’s law officers were conspicuously absent from the proceedings, failing to defend the central statute.

CJP stands with the millions of Adivasis whose lives and livelihoods are threatened by the shocking order by the Supreme Court. We are working to ensure the forest rights of Adivasis in Sonbhadra, Uttar Pradesh, and to deepen our understanding of the Forest Rights Act and support Adivasis’ struggles across the country. Please support our efforts by donating here

The FR platforms have alleged in these communications that the “government is trying to use two routes – a backdoor route through the Supreme Court  and a front door route through proposed amendments to the Indian Forest Act – to condemn crores of tribals and forest dwellers in the country to destitution and extortion, brutality and eviction by forest officials.”

The FRA 2006, a recognition of rights law, was passed decades after Independence setting right then prevalent colonial laws and jurisprudence that, in fact, unfairly favoured forest officials over the adivasis and forest dwelling communitites who for generations had both lived off, tilled and protected these lands.

On February 13, 2019, the Supreme Court of India, hearing a petition filed by wildlife conservationists and former forest department officials, directed the state governments to evict “encroachers” or “illegal forest dwellers”. The official defender in the case, the Ministry of Tribal Affairs (MoTA), was conspicuous by its absence in the courtroom.

The order had sent shockwaves across the country’s forests, home to eight percent of the population. It was met with stiff resistance and was called “unconstitutional” by several groups, especially those which had been struggling for forest rights for decades. The order was criticised for “violating” schedules V, VI and IX of the Constitution and also for turning established jurisprudence on its head. A week later, the order was temporarily stayed after the Central government, under pressure from several quarters and forest rights groups, was compelled to move the same bench for review.

Significantly, the case in question, a Public Interest Litigation (PIL) filed by wildlife conservancy groups regarding the validity of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA, 2006), had been going on for many years.

The letter highlighted that cases have been running against the FRA since 2008. Between 2008 and 2016, the letter noted, the Central government “played its constitutional role” and defended the crucial law before the Court. However, they expressed a concern that from 2017 onwards, The Central Government’s counsels in the case “did not make a single statement” in defense of the law.

This matter, they observed, had been raised by them on February 4, 2019, nine days before the order of February 13. Because of absence of any arguments on behalf of the defenders, “the petitioners’ views prevailed”. The letter said, “After a nationwide uproar, your government rushed back to Court and managed to persuade the Court to put this order “on hold.” The next hearing in this matter is on July 24th. It is a matter of extreme concern to us and to the crores of forest dwellers of this country that your government has not made a single statement in public on this matter after February 28th. We fear that your government is again planning to try to sabotage the Forest Rights Act by remaining silent and thus allow for a mass eviction once again.”

The memorandum has also expressed their deep concern over the draconian nature of the proposed amendments to the Indian Forest Act, 1927. On March 7th, the Ministry of Environment and Forests sent a “proposal” for amendments to the Indian Forest Act, 1927, to all State governments. If this proposal becomes law, forest officials will acquire extraordinary powers that no other agency – including the security forces in disturbed areas – has ever had in the history of this country. Forest officials will be able to end people’s rights merely by paying cash compensation (s. 22A(2), s.30(b)); to use fire arms against tribals and forest dwellers with impunity (s.66(2)); to take confessions from accused and have them be admissible as evidence in court (a provision that does not exist in any other law) (s.64C); to shut down people’s rights in entire forests for flimsy reasons such as “wilfully causing fires” (s.26(3)); to end shifting cultivation entirely; and so on.

They said that if the proposals become the law, it will be the single biggest attack on the country’s tribals and forest dwellers since the first British Act, 1865. It said, “Your government will have committed a historic atrocity on the crores of tribals and forest dwellers in this country.”

The organisations drew attention to the problems of seeing afforestation in exclusion with forest rights. They said that in 2016 when the Compensatory Afforestation Fund Act was passed by the government it didn’t have a mention of forest rights. The Rules framed under the Act – contrary to assurances to Parliament – also allow forest officials to override tribals and forest dwellers and plant trees on their lands. They noted, “This has already led to atrocities against tribals and violence, including most recently in Telengana and Maharashtra. Compensatory afforestation money is being wasted, siphoned off by corrupt officials, used as a pretext for evicting tribals and seizing their lands, and spent on buildings and guns when by rights it should belong to the country’s forest communities.”

The FRA, 13 years ago, for the first time, recognised the individual and community rights of the forest dwellers over the forest land. It recognised the “historical injustice” done to these communities and helped remove the stigma of “encroachers”, a term pregnant with colonial prejudice and popularised in the last few centuries by the English mainstream media favouring elite notions of conservation.

Most of the people classified as forest-dwellers in India belong to the Schedules Tribes (ST), non-notified Adivasis, Dalits and vulnerable poor communities, who are occupationally dependent on sustainable agriculture, cattle rearing, fisheries and collection of other forest-produce and therefore, rely on land and forest for their livelihood.

The platforms have urged the Central government to

  • Actively defend the Forest Rights Act, (FRA), 2006 in the Supreme Court, and place before the Court the correct legal position, under which evictions only for the inability to prove a claim are not justified in law and in any case are not related to the case before the Court;
  • Immediately withdraw the proposed amendments to the Indian Forest Act and instead amend that law and other forest laws to bring them into accordance with the Forest Rights Act, 2006 and to prosecute officials who violate forest rights;
  • Ensure that money collected in the name of compensatory afforestation is only spent with the consent of affected gram sabhas and subject to plans prepared by them rather than by bureaucrats.
  • Announce a transparent audit of expenditure under the District Mineral Funds and take action against any officials or agencies who have diverted money in these funds, and alter the rules under this fund to ensure that any expenditure is subject to the consent of gram sabhas and is decided by bodies with representation from tribals and other affected communities.

Various organisations will organise nation-wide protests against these measures on July 22 and in August. A consultation was organised in this connection on July 1 and 2.

 

The complete text of the letter can be read here:

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Joint Appeal to the BJP Government: Stop Attacking The Rights of Tribals and Forest Dwellers

To:

Shri Narendra Modi, Prime Minister of India

New Delhi

Subject: Attack on tribals and forest dwellers by Central government

Dear Shri Modiji,

We are writing to express our deep concern at the active attempt to attack the rights of tribals and forest dwellers by your government. We wish to draw to your attention three specific examples of this wholesale assault:

  • Since 2008, cases against the Forest Rights Act have been running in the Supreme Court. From 2008 up to 2016 the Central government played its constitutional role and defended this crucial law before the Court. From 2017 onwards, for no reason, the Central government’s counsels in the case did not make a single statement in defense of the law. We had raised this matter as early as February 4th. As a result, the petitioners’ view prevailed and on February 13th the Court passed an order to evict lakhs of families solely on the ground that they were unable to prove their claim under the law. After a nationwide uproar, your government rushed back to Court and managed to persuade the Court to put this order “on hold.” The next hearing in this matter is on July 24th. It is a matter of extreme concern to us and to the crores of forest dwellers of this country that your government has not made a single statement in public on this matter after February 28th. We fear that your government is again planning to try to sabotage the Forest Rights Act by remaining silent and thus allow for a mass eviction once again.

  • On March 7th, the Ministry of Environment and Forests sent a “proposal” for amendments to the Indian Forest Act, 1927, to all State governments. If this proposal becomes law, forest officials will acquire extraordinary powers that no other agency – including the security forces in disturbed areas – has ever had in the history of this country. Forest officials will be able to end people’s rights merely by paying cash compensation (s. 22A(2), s.30(b)); to use fire arms against tribals and forest dwellers with impunity (s.66(2)); to take confessions from accused and have them be admissible as evidence in court (a provision that does not exist in any other law) (s.64C); to shut down people’s rights in entire forests for flimsy reasons such as “willfully causing fires” (s.26(3)); to end shifting cultivation entirely; and so on. If these proposals become law they will be the single biggest attack on this country’s tribals and forest dwellers since the first British Forest Act in 1865. Your government will have committed a historic atrocity on the crores of tribals and forest dwellers in this country.

  • In 2016, when the Compensatory Afforestation Fund Act was passed by your government, it did not even contain a mention of forest rights. The Rules framed under the Act – contrary to assurances to Parliament – also allow forest officials to override tribals and forest dwellers and plant trees on their lands. This has already led to atrocities against tribals and violence, including most recently in Telengana and Maharashtra. Compensatory afforestation money is being wasted, siphoned off by corrupt officials, used as a pretext for evicting tribals and seizing their lands, and spent on buildings and guns when by rights it should belong to the country’s forest communities.

  • When the Mines and Minerals (Regulation and Development) Act was amended in 2015 and 2016, much fanfare was made of how a “mineral development fund” would be set up for the development of mining affected areas and communities. As of December 2018 more than Rs. 22,800 crore had been collected by state governments in these funds, but only Rs. 5,529 crore – less than a quarter of the total – had been spent. We call upon the Central government to investigate and reveal where the remaining 17,271 crores is. This is a further injustice on the country’s tribals.

In this context we call upon the Central government to:

  • Actively defend the Forest Rights Act in the Supreme Court, and place before the Court the correct legal position, under which evictions only for the inability to prove a claim are not justified in law and in any case are not related to the case before the Court;

  • Immediately withdraw the proposed amendments to the Indian Forest Act and instead amend that law and other forest laws to bring them into accordance with the Forest Rights Act and to prosecute officials who violate forest rights;

  • Ensure that money collected in the name of compensatory afforestation is only spent with the consent of affected gram sabhas and subject to plans prepared by them rather than by bureaucrats.

  • Announce a transparent audit of expenditure under the District Mineral Funds and take action against any officials or agencies who have diverted money in these funds, and alter the rules under this fund to ensure that any expenditure is subject to the consent of gram sabhas and is decided by bodies with representation from tribals and other affected communities.

Sincerely,

Jitendra Choudhury, National Convenor, Adivasi Adhikar Rashtriya Manch

C.R. Baxi, Working President, Akhil Bharatiya Adivasi Mahasabha

Shankar Gopalakrishnan, Campaign for Survival and Dignity

Bijaybhai, Bharat Jan Andolan

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