09, Sep 2019 | CJP Team
In a compliance affidavit filed before the Supreme Court in an on-going litigation by Wildlife First, challenging the constitutional validity of the law, Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), the Madhya Pradesh (MP) government acknowledged the historical injustices and the marginalized nature of tribal communities and Other Traditional Forest Dwellers (OTFD).
Citing illiteracy and information asymmetry and recognising their critical dependency on land and forest resources for survival, it said that it plans to allow the communities to submit their claims and exercise their rights under the law.
The affidavit states, “The legislature never intended to have a sunset clause in the law and hence, the same should not be arbitrarily imposed by Government agencies”. The MP government plans to develop and then make use of a software application, Vanmitra, to track the progress of the claims and has asked for a time period of six months to a year to come up with its final assessment and review of all the “rejected claims.”
Among its four pillars of action, the land and livelihood rights of Adivasis and traditional forest dwellers is one. CJP, with its expertise in navigating cases of human rights violations in the courts and beyond, has been active on the issue; partnering with the All India Union of Forest Working Peoples (AIUFWP) since 2017 to battle any setback to these rights in the courts. This includes legally fighting back against malicious prosecution of leaders of the community and defending the Forest Rights Act, 2006 in the Supreme Court. We stand with the millions of Forest Dwellers and Adivasis whose lives and livelihoods are threatened. Please support our efforts by donating here
In August, the Supreme Court, while responding to the petition filed by the conservancy group Wildlife First, had directed state governments to file compliance affidavits indicating the process undertaken to “reject” the claims filed by forest dwellers on forest land. In February, the SC, at first, gave an order of “eviction” of millions of people from communities based in forests. However, after this led to widespread protests, the SC stayed its own order.
By the next date of hearing i.e. on July 24, soon after the elections, more than 19 intervention applications had been filed before the SC, and national and international bodies had urged the Central government to defend the FRA. Filed by different sets of directly concerned individuals and organisations, all of these defended the constitutional validity of the Act. Among these applications, one has been filed by retired bureaucrats and academics, Sharad Lele and Nandini Sundar. Another has been filed by two Adivasi women leaders, Sokala Gond and Nevada Rana, backed by All India Union of Forest Working People (AIUFWP) and Citizens for Justice and Peace (CJP).
Within a few days, many states asked for more time and admitted that there were procedural lapses in their decisions rejecting the claims for pattas (land titles). These states filed separate affidavits in the SC.
Following this, the Court directed the Chief Secretary of the State Governments to file their detailed affidavits, covering all the aforesaid aspects, and also to place on record the rejection order/s, details of the procedure followed, grounds of rejection of claims, opportunity to adduce evidence, details of supposed incumbents who have been reportedly ‘occupying’ these areas, course of actions with respect to the claims etc.
Despite high forest cover and large numbers of tribal communities, MP rejected more than 50% claims
Madhya Pradesh, which has a very high forest cover of 12.28%, has a tribal population of about 15.31 million of the total population of 72.62 million. This makes for an overwhelming 21.1% of the total population as per the 2011 census. It has 46 recognised Scheduled Tribes, three of which have been identified as Particularly Vulnerable Groups (PTGs). The MP government gave a total break-up of the rejected and accepted claims as follows:
- Total No. of Claims: 624889
Schedule Tribes Claimant (STs): 428612
Other Tribes and Forest Dwellers (OTFDs): 154229
Community Forest Rights (CFR): 42048
- Claims Sanctioned: 263916
- Claims Rejected/Now under Review- 360877
- Pending Claims 96
This means, by the government’s own admission, that as many as 57.7% claims have been rejected so far!
The MP government’s affidavit may be viewed here:
“No reasonable opportunity to the claimants to be heard”
“It becomes the duty of the State of Madhya Pradesh to record the rights of the tribals who are to be statutorily protected under the Act and Rules, who are inhabitants of these areas for generations,” the government said in its affidavit.
It agreed that many claims were rejected “without following the due process of law and without giving any reasonable opportunity to the claimants to be heard.”
After the February 13 order of eviction and prior to the February 28 order staying the eviction, the MP government had convened a meeting, reportedly of the State Level Monitoring Committee (SLMC) headed by the Chief Secretary, on February 27, 2019, which examined the data regarding the reported cases of rejection in the state of Madhya Pradesh.
The government’s affidavit noted that, after going through the sample records of the cases which had been rejected, the committee found that no order of rejection had been formally communicated to the claimants.
The government said that it has decided that the rejected claims lying with the District Level Committees (DLCs) of the different districts of the state need to be reviewed and remanded to the Forest Rights Committees (FRCs) and Gram Sabhas for re-examination and for adducing further evidence, if so required.
Will a software achieve what bureaucracy could not?
The government has also decided to review the claims through, what it calls, “an end-to-end computerised work flow web based software application”. The software, Vanmitra, has been developed and customised for the state by the Maharashtra Knowledge Corporation Limited.
Responsibilities of the FRC, Gram Sabha, SDLC and DLC will be performed through their respective logins available at all four levels. The state claims that this software will bring “complete transparency in the process of review of claims”. It said, “It will enable tracking of each claim to its status.”
According to the government, through the software, the claimant will have the facility to place any evidence or any additional fact in his login from any public kiosk or through the Gram Sabha login. The affidavit also mentioned that the government is in the process of providing digital tablets for this specific purpose.
“FRA important for conservation and indigenous groups, but won’t spare ‘encroachers’”
Calling the FRA a beneficial legislation meant for the marginalised sections of the society, the MP government said that it was committed that “no eligible claimant is left out or deprived of his rightful claim due to his inability and lack of capacity to adduce evidences and put his claim rightfully.” However, it also added that it will ensure that “no one is taking advantage, by encroaching on the forest land, in the guise of forest rights act.”
Highlighting the important role of the FRA in conservation, the affidavit also noted, “The Act recognizes and vests the forest rights and occupation in Forest land in FDST and OTFD, who have been residing in such forests for generations. The Act also establishes the responsibilities and authority of FDST and OTFD for sustainable use, conservation of biodiversity and maintenance of ecological balance. It strengthens the conservation regime of the forests while ensuring livelihood and food security of the FDST and OTFD. Moreover, it seeks to rectify colonial injustice to the FDST and OTFD, who are integral to the very survival and sustainability of the forest ecosystem”.
Commenting that the FRA was a “comprehensive legislation to give due recognition to the forest rights of the tribal communities”, it said that these rights were not recorded while consolidating state forests during the colonial period as well as in independent India. Recognizing the symbiotic relationship between tribal people and forests, the National Forest Policy, 1988, made provisions to safeguard the customary rights and interests of the tribals on forest land.
Processes should percolate down to the claimant
To address grievances, the state noted that “the process of filing petitions before the sub divisional level committee, if a person is aggrieved by the resolution of Gram Sabha, and before the District level committee, if a person is aggrieved by the decision of the SDLC, has not percolated down to the claimants and hardly any claimant has resorted to these alternatives provided in the law. There should be a provision so that a mandatory period of 60 days or more is given at each level with additional time period of 45 days.” It said that the finality of the rejected claims can only be attained only after the review applications are again, finally, considered by the DLCs.
Though the idea of an application to facilitate the process seems well meaning, alongside a commentary that favours the communities, it remains unclear how the government plans to achieve this, especially in a situation where many backward MP villages remain yet to see electrification. Also, it somehow seems inconceivable that these will be connected to the FRCs, which may in all probability, be located in far flung and remote villages without any such facility. In this situation, a concrete and robust mechanism to go through the claims on the ground will be essential.