Tharu Adivasis fight against wrongful rejection of land rights claims 8 years on, their struggle persists
29, Nov 2021 | Sanchita Kadam
With resounding the cries of ‘Jal-Jungle-Zameen’ (water-forests-land), forest dwelling communities belonging to Tharu Adivasi community residing in 20 villages in Dudhwa region of Lakhimpur Kheri, Uttar Pradesh, filed their Objections to denial of community land claims with the district administration.
These objections come in wake of rejection of their community land rights claims which they had filed way back in 2013 and which have remained in limbo more or less, considering the amount of time that has passed.
The forest dwelling community is deeply disappointed with the way the process has been handled until now. In their objections, they have pointed out that the manner in which their claims have been rejected is not in accordance with the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). They have stated that the District Level Committee that has rejected their claims does not have the authority to do so, while citing many provisions of FRA.
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.
Community forest rights recognised under the Forest Rights Act are important for securing livelihoods of the forest communities and for strengthening local self-governance of forests and natural resources.
The claims filed by 20 villages in Dudhwa, Lakhimpur Kheri district were rejected at the District Level Committee, and hence they filed their objections to this rejection at the State Oversight Committee under the FRA.
The objections raised are as follows:
- The District Level Committee does not have the power to reject the claims made by the villagers.
Section 6(3) of FRA states that the Sub-Divisional Level Committee is to examine the resolution passed by the Gram Sabha, and prepare the record of forest rights and forward it through the Sub-Divisional Officer to the District Level Committee for a final decision.
Further, sub-section 5 of section 6 also reiterate that the District Level Committee is supposed to consider and finally approve the record of forest rights prepared by the Sub-Divisional Level Committee.
Thus, the power of the District Level Committee is to approve the record of the forest rights as prepared by the Sub-Divisional level Committee.
- This rejection by the District Committee indicates that either they are not fully conversant with FRA or this was done intentionally to deprive forest dwellers from their forest rights.
- The District Committee should have sent their recommendations over the community claims back to the Gram Sabha for reconsideration. The District Level Committee did not only reject the claims but also took many months to respond to the claims.
- District social welfare department and Sub-divisional level Committee have conducted a faulty probe into the claims. The letter of the District Level Committee is dated March 15, 2021 while the letter has been received by the village level Forest Rights Committees only on September 20, 2021. Even this letter was received only when the Committees wrote to Sub-divisional and District Level Committee to find out about the status of the claims.
- Further, the reasons mentioned for rejection of the claims are not only in contravention to FRA but are also unconstitutional. The case of T.N. Godavarman Thirumulpad vs Union Of India & Ors (1997) 2 SCC 267cited in the letter of the District level Committee is not applicable in this case, since section 4 of FRA surmounts and bestows in clear language, forest rights upon forest dwelling communities.
Section 13 of FRA also states, “Save as otherwise provided in this Act and the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. FRA stands over and above the Indian Forests Act, 1927 and hence, it is wrong to reject forest rights claims basis the 1927 Act.
- When SDLC passed the claims with its comments then under which section of FRA have the claims been rejected by the DLC? Under FRA, claims cannot be rejected without any basis. Also, the claims have been pending since 2013 their approval was put on hold as per Forest Department orders. No strong grounds have been provided for rejection of the claims.
- Under section 4(7) of FRA, it is clearly stated, “The forest rights shall be conferred free of all encumbrances and procedural requirements, including clearance under the Forest (Conservation) Act, 1980, requirement of paying the ‘net present value’ and ‘compensatory afforestation’ for diversion of forest land, except those specified in this Act.”
Thus, the reference of the Godavarman case in the DLC’ rejection letter is erroneous. It is clear that notwithstanding anything contained in any forest related law, the provisions given in the Forest Rights Act will hold more prominence than anything else. This law supersedes any earlier law related to forest and the decisions given by the courts.
- In the case of village Surma, in spite of the order of the Allahabad High Court to displace the village in 2003, the Uttar Pradesh Law and Justice Department went against these orders and in 2011 under the Forest Rights Act they not only gave people proprietary rights on their residence and agricultural lands but also given revenue status, despite being in the core zone of tiger reserves. Due to which the above arguments made by the District Level Committee are automatically nullified.
- In the last paragraph of this order given by the District Level Committee, apart from the benefits of the schemes, it has been accepted that the individual claims of village Surma were accepted. It is important to note that when individual rights have been recognised under a law, then how can claims of community rights made under the same law be nullified. This double standard of eligibility and ineligibility in a single law proves that this decision taken by the district level committee regarding community claims is completely in violation of the law.
- That the District Level Committee has written in the letter that the people of this village neither live in the forests nor are they dependent on the forests for their livelihood. Whereas there are old records of the village being settled in the Dudhwa forest area for more than 200 years and the records are already presented before the SDLC.
- The DLC has passed the rejection order without making any reference to FRA. The meeting of the District Level Committee where the decision to reject the claims was made, was supposed to include three members of the tribal community or other traditional forest dwellers, as per FRA.
- That the FRA 2006 and the concerned 2008 Rules are a historic milestone in the lives of all Adivasis and forest dwelling communities that protect both their lives and livelihood. The enactment of this crucial legislation, through an Act of Parliament, was the result of a decade long struggle and articulation of India’s indigenous, Adivasi, other traditional forest dwelling communities and, in fact, marks a much-needed shift in jurisprudence by empowering local communities and their Gram Sabhas not only with governance but also protection of their livelihoods, forests and lands.
By not following proper procedure and rules, and by using delaying tactics, it defeats the purpose of the law that is meant to protect our interests. In fact, the enactment gives statutory life and teeth to Constitutional provisions already made for the Adivasi, Indigenous peoples and Forest Dwelling Communities under Schedules V, VI and XI of the Indian Constitution (Schedule IX deals with the North east).
- Such community claims cannot be rejected by an authority that does not have the power to do so. Moreover, the rejection of these claims was done in a hasty manner. It is a known fact that the relationship between forest dwelling communities/Scheduled Tribes with land is crucial and is also a source of livelihood for them. That land also gives them the social and economic security that they have been deprived of for years.
- Following the sudden and controversial order of the Supreme Court in February 2019 ordering “evictions” after being misled by the petitioners, both the Ministry of Tribal Affairs (MoTA) took strong objection after which the Court has stayed operation of its own order.
In fact, a woman leader of the Tharu Community, Nevada Rana, along with another senior Adivasi woman leader Sokalo Gond, backed by the All India Union of Forest Working Peoples (AIUFWP) and Citizens for Justice and Peace (CJP), have intervened in the Supreme Court. In this historic intervention, we have laid down an elaborate argument on the historic purpose of the FRA 2006 and how it is a “recognition of rights” law. (Intervention Application Nos 107284/2019 Sokalo Gond and Ors)
The letter in Hindi may be read here:
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