NEW DELHI— Nine state governments rejected more than 13 lakh forest rights claims of Adivasis and other forest dwellers without following due procedures, show minutes of two recent meetings at the Tribal Affairs Ministry, reviewed by HuffPost India.
Under the Forest Rights Act, each “claim” attests to the rights of an individual or community to continue to live, farm, or gather forest produce, on land now claimed by the Forest or Revenue Department. The admission that 13 lakh claims were wrongly rejected, could affect several million more individuals, assuming each claim represents more than one person.
The previously unreported documents reviewed by HuffPost India show that the representatives of seven state governments admitted that over 11 lakh claims had been rejected without following due procedure, while top officials of the Tribal Affairs Ministry ticked off representatives of the state governments of West Bengal and Uttar Pradesh, who accounted for 1.61 lakh rejected claims between them, for not being sufficiently effective in settling forest rights claims.
The time period during which the claims were filed and processed by all states remains unclear as the minutes do not mention them, however these were the most recent figures available when the meetings were held on 6 March and 18 June.
Uttar Pradesh and West Bengal apart, the numbers of claims rejected by state governments are as follows: Chhattisgarh (4,54,379), Andhra Pradesh (11, 860), Karnataka (2,10,892), Odisha (1,45,750), Madhya Pradesh (2,45,592), Tamil Nadu (10,656) and Tripura (68,388).
These astonishingly high numbers of rejections of forest rights claims were collated from presentations given by the state government officials during the meetings with the Tribal Affairs ministry officials.
The meetings between the Tribal Affairs ministry and states were held in the aftermath of two controversial orders passed by the SC in February directing the forced eviction of more than 10 lakh forest dwellers whose claims over land titles under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, better known as the Forest Rights Act (FRA), were rejected.
The apex court gave its order of eviction in response to a clutch of petitions filed in 2008 and 2016 by wildlife groups and retired forest officials questioning the constitutional validity of the FRA. After widespread protests and intervention by government lawyers, which was prompted by criticism that the Narendra Modi government failed to put up a legal defense for the FRA, the SC stayed its own order with specific directions to the state governments to disclose whether due process was followed while rejecting forest rights claims. The meetings between the Tribal Affairs ministry and various state governments are a consequence of this direction. Sources told HuffPost India that some of the numbers regarding wrongful rejections quoted above are likely to be put before the Supreme Court at the next hearing of the case.
“With the confirmation of absence of due procedure in rejecting at least 1.3 million (13 lakh) claims, the scale of the states’ failure to follow the letter and spirit of the FRA has been revealed with evidence for the first time during this case.”
The candid confessions by seven states that they did not follow due procedures confirms a view widely held by Adivasi rights groups and activists that forest rights claims are dismissed without due process by the forest bureaucracy. The high numbers of rejections done without due process suggest that the narrative of adivasis “encroaching” on forest lands may be exaggerated.
“Stigmatising Adivasis and other traditional forest dwellers as encroachers is unfair. From 2009 to 2017, none of the Forest Survey of India reports said that forests have been destroyed because of the Forest Rights Act,” said Bhubaneshwar-based activist Y Giri Rao who has been following both FRA implementation and the SC case closely.
Critically, the deliberations recorded in the minutes of the two meetings also reveal how bureaucratic and political apathy towards proper implementation of the FRA has put millions of Adivasis and other traditional forest dwellers at the risk of eviction from lands which have been, in a vast majority of instances, their homes for centuries.
Thus far, the estimated number of Adivasis at risk of being evicted was 1.89 million but the question of due procedure had not been raised in court, leading to the assumption among some that these are numbers of encroachers. However, with the confirmation of absence of due procedure in rejecting at least 1.3 million (13 lakh) claims, the scale of the states’ failure to follow the letter and spirit of the FRA has been revealed with evidence for the first time in this case.
What exactly the states confessed & what that means
Going by official numbers, Madhya Pradesh had the second highest number of claims rejected without due process at 2,45,592 units. The officially recorded synopsis of the presentation of the state tribal department officials before the union Tribals Affairs ministry officials on 18 June 2019 is tellingly worded.
“The state has found that due procedure was not followed while examining the FRA claims and their settlement and in majority of cases the claimants have not been served with speaking order in the cases of rejection and reasons of rejection were not cited. The claimants were given opportunity to adduce evidence but the forest department did not give its official records due to which evidence could not be adduced,” it states.
Further, it also states that the state government is reviewing rejected claims on the newly developed ‘MP Vanmitra Portal’ and the State Level Monitoring Committee, led by the Chief Secretary, is reviewing all rejected applications.
In the case of Chattisgarh, which has the most number of rejections at 4 lakh 54 thousand 379 units, the record notes the state’s failure to follow due process tersely. “Regarding procedure followed while rejecting FRA claims, written information has not been served to the claimants,” the minutes say. The state has started the review of rejected claims suo-moto, it adds.
The FRA record of both states is significant given that former Congress President Rahul Gandhi had asked party’s Chief Ministers to file review petitions against the SC order. Subsequent to this, party-led governments began a suo moto review of all rejected claims of forest rights.
Similarly, it is interesting to note the evidently poor record of the Bharatiya Janata Party-led government in Uttar Pradesh with large number of rejections of forest rights claims, failure to follow due process and generally lackadaisical handling of the FRA claims process despite Party President Amit Shah asking the party-led state governments to file review petitions and avoid large scale evictions.
It required criticism from the Tribal Affairs ministry for the UP state government to begin to address the problem. “No claimant has been informed regarding the status of their claim, especially rejection. In the meeting state assured to initiate communication now in order to seek petitions while it was recommended to suo moto review all rejection instead of wasting time awaiting petitions,” note the minutes of a meeting held on March 6, 2019.
The state government of West Bengal also faced criticism for its poor forest rights claims settlement record. “The reasons cited for such high rate of rejection exhibit flawed interpretation of the provisions of the Act and the necessity of capacity building of concerned officers,” read the minutes of the meeting held on March 6.
Clearly, neither the spirit nor the text of the FRA were being followed by the state governments across party lines in right earnest.
The February 13 Order & FRA
The FRA has come to be seen as a law about Adivasi evictions following the controversial 13 February order even though it has no provisions for evicting people from lands.
The Forest Rights Act, passed in 2006 to undo the “historical injustice” to the Adivasis and other traditional forest dwellers, recognises their rights over forest land and other resources which have been a source of their livelihood for centuries.
But sections of environment groups and forest officials, essentially those who are wildlife focused, consider the FRA as a populist measure that is dangerous for forest conservation.
Thus they filed a petition in the SC questioning the constitutionality of the FRA legislation in 2008. But in 2016, the scope of the issues involved was expanded after an Intervention Application was filed and since then, the SC began looking at the law’s implementation. While the government supported the legislation for the most part, it was inexplicably quiet during hearings in 2017-18 leading up to February 2019 thereby paving the way for the February 13 order, activists say.
The Forest Rights Act recognises people’s rights over forest land and other resources which have been a source of their livelihood for centuries. Thus when claims are filed by people for ‘forest rights’ the term encapsulates claims made for individual and community land titles as well as forests and their natural wealth except timber.
The claims for forest rights are first screened at the level of the Gram Sabha, followed by the Sub Division Level Committee and District Level Committees. Data from the minutes of the meetings show that a large number of forest rights claims were rejected at the level of the District Level Committee.
In the Supreme Court case, with its focus on evictions and encroachments from forest lands, the court interpreted rejections as opening up the window for eviction. But the focus on evictions is wrong given the still pending settlement of rights under the FRA and the regime of transparency it brings in forest management, civil society groups say.
“FRA is not a legislation about encroachment and eviction. It is a conservation legislation. The question is: should forest officials have absolute life and death power over both forests and people?”
As Shankar Gopalkrishnan, Secretary General of the Campaign for Survival and Dignity, told this reporter, “FRA is not a legislation about encroachment and eviction. It is a conservation legislation. The question is: should forest officials have absolute life and death power over both forests and people? Or should we have a democratic system with rights for people and accountability for officials? The FRA upholds the latter. This is the issue that MOTA should present before the court,” he said.
While the case was scheduled to come up for hearing on Wednesday, July 24, the Apex Court did not take it up for consideration.
Shankar also emphasised a point that, as the minutes of the meetings show, the Tribal Affairs ministry now agrees to as well. But it remains to be seen if the ministry’s lawyers argue this before the Supreme Court. The point being that rejection of forest rights claims does not open up the possibility for eviction as assumed.
“We would like the MoTA to tell the states and Court that rejection of claims is not a ground for eviction. A person may have other rights in forests also. FRA is not the only law through which forest dwellers’ rights are recognised. Many states have their own laws. Also, the Indian Forests Act itself provides for recording of rights,” said Gopalakrishnan.