The CSR Journal | By Kasmin Fernandes – July 2, 2019
The order of the Supreme Court issued on February 13, 2019 with respect to the claims of forest-dwelling peoples in India — the Scheduled Tribes and Other Traditional Forest Dwellers — is a case of the Supreme Court speaking against itself.
In effect, the court has ordered the eviction of lakhs of people whose claims as forest dwellers have been rejected under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA. As a matter of fact, this order negates the claims of citizens under special protection of the Constitution, viz. the Scheduled Tribes and other vulnerable communities, who are already pushed by neglect precariously to the edge.
An important question before us today centres on the responsibility of the Supreme Court in upholding constitutional claims and equal citizenship.
The order in question was issued in the case of Wildlife First & Ors v. Ministry of Forest and Environment & Ors. The details regarding claims made under the FRA that were placed before the court by the petitioner in 2016 showed that of the 44 lakh claims filed before appropriate authorities in the different States, 20.5 lakh claims (46.5%) were rejected.
In the present order of February 2019, the Supreme Court specifically directs governments in 21 States by name to carry out evictions of rejected claimants without further delay and report on or before July 12, 2019.
There are several questions that must be foregrounded for immediate attention. The most obvious one has to do with the meanings attached to the rejection of claims. According to the 2014 report of the High-Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities (Xaxa Committee), constituted by the Government of India, 60% of the forest area in the country is in tribal areas — protected by Article 19(5) and Schedules V and VI of the Constitution.
With specific reference to claims under the FRA, reiterating the finding of several other studies that have documented the deep procedural flaws in processing claims, the Xaxa Committee observed that “claims are being rejected without assigning reasons, or based on wrong interpretation of the ‘OTFD’ definition and the ‘dependence’ clause, or simply for lack of evidence or ‘absence of GPS survey’ or because the land is wrongly considered as ‘not forest land’, or because only forest offence receipts are considered as adequate evidence.
The rejections are not being communicated to the claimants, and their right to appeal is not being explained to them nor its exercise facilitated.” It is important to note that the mere rejection of claims by the state therefore does not add up to a finding of the crime of “encroachment”; as a matter of fact, some experts opine that the sheer volume of rejections should instead set alarm bells ringing in the court of procedural improprieties.
Interestingly, in this case, it appears as if a private party, named Wildlife First, is pitted against the state. A closer examination reveals that it is, in fact, Wildlife First and the state together which have joined forces against the most vulnerable communities in the country living in areas constitutionally protected from encroachment even by the state. An important aspect to keep in mind would be the Samata judgment of the Supreme Court in 1997.
The Samata judgement
In 1987, Samata, a non-governmental organisation closely associated with 10 community based institutions in 300 villages of Srikakulam, Visakhapatnam and East Godavari districts, began to work for the rights of the tribal people as it found them being alienated from their lands and exploited by non-tribal people and the state, in contravention of the Fifth Schedule of the Constitution and various Central & State govt laws.
After a four-year legal battle, it won a historic judgment, which declared null and void the transfer of land in the Scheduled Areas for private mining and upheld the Forest Protection Act of 1980, which prohibits mining in reserved areas.
Significance of the Samata judgement
The Samata judgment nullified all mining leases granted by the State government in the Scheduled areas and asked it to stop all mining operations. Only the State Mineral Development Corporation or a cooperative of the tribal people, it ruled, could take up mining activity and that too in compliance with the Forest Conservation Act and the Environment Protection Act.
It also recognised the Constitution (73rd) Amendment and the Panchayat (Extension to Scheduled Areas) Act, under which gram sabhas are competent to preserve and safeguard community resources, and reiterated the right of self-governance of Adivasis.
What the 2019 judgement implies
As has been widely reported, the immediate result will be the forced eviction of over one million people belonging to the Scheduled Tribes and other forest communities. Importantly, the area marked for eviction falls under areas designated under Schedule V and Schedule VI of the Constitution — there is no reference to the implications for governance in the Scheduled Areas and whether the Supreme Court, in fact, has the authority to order evictions of Scheduled Tribes from Scheduled Areas.
Some experts take the view that in a democratic country with citizens (not subjects) and a written Constitution which is affirmed by the people who are sovereign, how can we countenance the dismantling of an entire constitutional apparatus that prescribes the non-derogable boundaries to Adivasi homelands and institutional mechanisms that promote autonomy and restrain interference in self-governance?
At an even more fundamental level, we are speaking of special protections under the Constitution — even more today than ever before. The presence of Article 19(5) in the Fundamental Rights chapter of the Constitution, which specifically enjoins the state to make laws “for the protection of the interests of any Scheduled Tribe”, is vital.
Some experts take the view that the order given by the Supreme Court runs contrary to the core and express fundamental right protection to Adivasis (as distinct from legal/statutory protection), which protects them from a range of state and non-state intrusions in Scheduled Areas as well as from the perennial threat of eviction from their homelands?
The question arises: Is it not the obligation of the Court to protect the Scheduled Tribes and other vulnerable communities from the harms of violent dispossession?