Insights into Editorial: Without land or recourse
A recent Supreme Court order may lead to the eviction of lakhs of persons belonging to the Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) categories across 21 States their claim as forest dwellers have been rejected under the Forest Rights Act of 2006.
A three-judge Bench had ordered the Chief Secretaries of many of these States to evict those whose claims as forest dwellers have been finally rejected under the law.
The court directed that the eviction should be carried out on or before July 24, 2019.
The order of the Supreme Court issued 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.
The order in question was issued in the case of Wildlife First & Ors v. Ministry of Forest and Environment & Ors.
The matter relates to the Constitutional validity of the Forests Rights Act and also questions pertaining to the preservation of forests.
The details regarding the claims made under the FRA, which were placed before the Court showed that of the 44 lakh claims filed, 20.5 lakh claims (46.5%) were rejected.
A claim is made either for individual or community rights by the people/communities covered by the FRA.
Many Faults from Administrative side made Forest people life vulnerable:
According to the 2014 report of the High-Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities in India, constituted by the Government of India (Xaxa Committee):
About 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.
But the present Claims from tribal and forest dwellers are being rejected without assigning reasons of the Other Traditional Forest Dwellers (OTFD) definition and the ‘dependence’ clause, or simply for lack of evidence or ‘absence of GPS survey’.
The land is wrongly considered as ‘not forest land’, or because only forest offence receipts are considered as adequate evidence.
The mere rejection of claims by the state, does not add up to a finding of the crime of “encroachment”, the sheer volume of rejections should instead set alarm bells ringing in the court of procedural improprieties.
The rejections are not being communicated to the tribal and forest dwellers, and their right to appeal is not being explained to them nor its exercise facilitated.
Several questions that must be foregrounded for immediate attention:
- 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 and there is no reference to the implications for governance in the Scheduled Areas.
- Whether the Supreme Court, in fact, has the authority to order evictions of Scheduled Tribes from Scheduled Areas?
- In a democratic country with citizens 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?
- Lacking the skills to survive in a competitive labour market, savvy to negotiate their way or the strength of numbers to exercise influence on political processes, the people of the PVTG will become exceedingly vulnerable.
Sudden Eviction in scheduled Areas is Against the safeguards mentioned in our Constitution:
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.
There is no clarity on whether Supreme Court has the authority to order evictions of Schedule Tribes from areas designated in Schedule V & Schedule VI areas.
How has the Supreme Court ordered the eviction in complete disregard of this 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.
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.
This order of Supreme Court negates the claims of citizens under special protection of the Constitution, viz. the Scheduled Tribes and other vulnerable communities already pushed by gross governmental neglect precariously to the edge, is another matter altogether.
Finally, in the recent judgments of the apex court on the right to privacy and Section 377, the court highlighted and given importance to autonomy, liberty, dignity, fraternity and constitutional morality, the pillars of transformative constitutionalism.
It is the same court in the same era that has now ordered the dispossession of entire communities protected under the Constitution. We, as citizens, have every reason to worry.
The question before us today centres on the responsibility of the Supreme Court in upholding constitutional claims and equal citizenship.