The Scheduled Tribes and Forest Dwellers Recognition of Forest Rights Act, 2006 as well as the Rules, 2007, are quite clear and unambiguous on the right of habitatation and other forest rights. But the problem begins when it comes to the implementation of the law by the states.
To blame the Supreme Court’s recent judgment for the probable eviction of over one million tribal people — as the media and others are doing — is wrong and it is perhaps due to misrepresentation of both law and fact. The law as it stands automatically vests rights of residence/habitation to genuine forest right holders especially scheduled tribes. The rejection, if at all, largely relates to extent of cultivation.
The court directed the states to evict people who were not able to establish their claims as forest dwellers under the Forest Rights Act.
The law or the order isn’t the problem here, the states are. By making the burden of proof so heavy, the states have risked the eviction of genuine forest dwellers.
The right to habitation
While the framework of the Forest Rights Act was rather simple, too many complicated procedures and forms were introduced through state clarifications and office directions.
The law, as it stands, automatically recognised and vested the forest rights to the ‘forest dwelling schedule tribes as well as other traditional forest dwellers’. It gave them two basic rights: habitation and self-cultivation, something they enjoyed before the law was passed as well.
The law also makes a distinction between forest rights for scheduled tribes and forest rights for dwellers other than scheduled tribes in terms of their eligibility. The right to habitation has been automatically vested in the act, provided the scheduled tribe family proves that they existed on that location before 13 December 2005 and were cultivating on an extent piece of forest land. Any genuine tribal family residing in that area would not have any problem in proving that. It would be more difficult for ‘other traditional forest dwellers’ because they have to prove that they were residents of that area for three generations — generations being 25 years each.
However, when it came to the verification, the states introduced complex processes for both.
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Genuine forest dwellers
Verifying the extent of cultivation on such forest land and habitation would have to be done through a three-level scrutiny process by the gram sabha, the sub-division level committee and the district level committee. It was supposed to be facilitated by a forest rights committee, a subset of the gram sabha, with the technical help of other related departments including the forest, tribal, revenue and the Panchayats.
It is no body’s case that fresh encroachments should be regularised in a forest area. But for the states to make the process so complicated for scheduled tribes who existed as on 13 December 2005, which can be proved quite easily through a large menu of evidence envisaged under the Rule 14 of the Forest Rights Rules, is unfair. It risks throwing the baby out with the bathwater.
The Supreme Court needs to caution the states and dig a little deeper to understand the complexity of this historic legislation on at least two counts.
First, questioning the number of rejections that have been produced by the states and whether there is solid evidence to that effect or not. Often in a target-oriented and scheme-oriented country, numbers play a huge role. The god is in the details, and so is the devil.
Second, probing the number of appeals that are pending on both bogus claims as well as genuine claims at the appellate authorities under the Forest Rights Act. It is necessary that a powerful and equipped monitoring body is established as a special purpose vehicle under the aegis of the Supreme Court itself since the states have failed in doing so. This role was supposed to be performed by the state level monitoring committees, which are by and large defunct and dysfunctional, and clearly not doing its statutory duty.
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Treading cautiously
It must be understood that a rejection of claim to a forest right over cultivation of an extent piece of forest land, or rejection due to technicalities of the form itself, or wrong interpretation by the sub-division level committee or the district level committee, or a non-proactive state-level monitoring committee should not lead to genuine tribal families being deprived of their rightful homes as guaranteed by the act.
Because that would perhaps lead to another big ‘historical injustice’ that we won’t be able to amend.
So, the judiciary, the states and the petitioners must tread cautiously because India won’t be able to save her forests without the active involvement of the forest dwelling scheduled tribes. An appeal to the PM Narendra Modi government is that let it remain the forest rights act and not a forest frights act.
The author is a Member, Technical Support Group to draft the Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Act, 2006 as well the Rules in 2007 under the aegis of Ministry of Tribal Affairs, Government of India.
This article has been updated to reflect changes.
If SC has to dig up more on rejected claims, they should do the same for Granted claims too?Selective biases are bad for judicial institutions and members like you working there.
State govts. have to take the initiative for proper implementation of FRA. For example, the tribal protests in Mumbai and the subsequent govt. initiatives for implementation of FRA are a good example. Also, in a scenario of an apathetic state govt., the claimants have to tread the path of filing claims very carefully, which should be based upon having detailed information.
Nice read.
The problem across all the human rights violations in India (at least) is lack of accountability of the State (Machinery and Individual service providers) for its doing, undoing and misdoings
This is a great update. It’s also an interesting case study for social sciences. I see in the text of this article that cultivation is the only claim of the forest dwellers to be decided . What about grazing rights by nomads or transhumants who just use the lands for pasture.
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I had posted a comment which seems to have been removed!!
Respected sir,do you think that everyone whoever has applied for rights under FRA has genuine claims.Just go and ask how many have settled after this act came into force.It has been more than a decade since implementation of this act but still people are applying for new claims. Shouldn’t there be a cutoff for application date.
Truly a good analysis of the situation that can be construed from the reports and data submitted at Hon. Supreme Court’s level. There is also another half of the story that needs to be taken cognizance. of. The Hon. SC has presumed that the number of recognitions reported to them are all correctly arrived at by the Authorities under FRA. Random ground level checks reveal that there are huge number of cases that are given without them fulfilling the criteria laid down by FRA. They are prima facie illegal, examples of blatant misuse of powers by the Authorities and clearly amount to giving sanctity to inadmissible forest rights and to ineligible persons and communities under the Act who have no locus standi under the Act. The effects, to mention just some of them, are : 1) injustice towards the otherwise well defined target group of genuine Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers under FRA , 2) injustice to the total village population that depend on such forest lands for various services, and 3) injustice to all the living forms (including each one of us) that have direct or indirect dependence on forests for supply of oxygen, water, biodiversity elements etc. Genuine FDSTs and OTFDs must not be left out and must get the benefit of the Act in any case but those who have worked to misuse the Act to adversly impact the sustainability of forest resources (meant for ecoservices to every citizen of this country) must not be pardoned. No State government is ready to review such cases and even take any action on such illegalities for obvious reasons. I just hope the Hon. Supreme Court takes a strong view on this part of the story too.