The recent developments on the Forest Rights Act reflect the ongoing undeclared war by the Modi Government against the tribals of India. It is not just the effect of the order of the Supreme Court but how in these five years the Modi Government has done everything possible to undermine, dilute and ultimately to put the Act in cold storage.
Supreme Court orders:
On February 13, a special three member bench of the Supreme Court issued written instructions to all State Governments for the eviction of tribals whose claims for forest land pattas were rejected under the Forest Rights Act 2006. Although each State was mentioned separately in the orders based on the replies they had given, the thrust was the same. The court said “ Where the rejection orders have been passed eviction will be carried out on or before the next hearing,” which was fixed for July.
The most recent figures available show that there have been a total of 42.19 lakh claims made under the FRA in different States. Of these claims only 18.89 lakh claims have been accepted. This means that over 23 lakh families are vulnerable to eviction. Of these 23 lakh the large majority are tribal families whose claims have been rejected.Following the strong protests, the Central Government which is the main party in the case, went in anappeal to the Supreme Court.The Court gave a temporary stay till July 2019 on the evictions.
Role of State Governments
There is little doubt that most State Governments have utterly failed to implement the Act in its proper spirit. The role of the Bengal Government was also exposed through the affidavit filed. According to this affidavit, 95,958 claims were made by STs and over 50 per cent that is 50, 288 were rejected. The State Government has to explain this high rate of rejection of claims of tribals.
The background of this order is that after the Forest Rights Act was adopted and came into operation in January 2007, some people including retired officers of the Forest department filed petitions in different States against the Act. In early 2014 all the cases were transferred to the Supreme Court under the name Wild Life First vs Government of India , Ministry of Environment.
The main plea in this retrograde petition is that the Forest Rights Act is unconstitutional and should be struck down. However, during the course of the hearings, departing from this main aspect, the Supreme Court on the prayer of the petitioners began a process of looking at the implementation of the Act. This itself is unprecedented. In January 2016 it gave an order which shifted the case to a different level. The order issued in January 2016 asked all State Governments to inform the court of how many claims have been rejected and whether those whose claims have been rejected have been evicted. This was a red alert.
In that year of 2016, the ASG of the Central Government P.S.Narsiman argued in favour of the Act and against any interim order. But mysteriously in 2017, the Central Government took a contrary view and virtually left a free run in court to those opposing the Act. In 2018 March, the Supreme Court again asked States for their record of evictions, since most States had not replied. However once again the Central Government did not intervene.
A year later, on February 13, 2019, the Supreme Court gave its eviction orders. Shockingly, even on that date, there was no senior counsel from the central Government to oppose the order. They were absent by design. That is why when ten days later, the central Government went before the Court for a stay on evictions, the Government was strongly reprimanded by the Court “ have you been sleeping all this time, “ the Court asked. The Government had no answer.
Criminal Official Negligence
It will be recalled that a similar attitude of the Modi Government had been on display in the case relating to the prevention of Atrocities on Scheduled castes and Scheduled tribes Act. On the date that the Court had issued a judgement that totally diluted the provisions of the Act, the counsel for the central Government was completely silent. It was only after national outrage and spontaneous protests by dalits and adivasis across the country through the April 2 strike that the Government was forced to act and an ordinance was brought to protect the Act.
This criminally callous attitude of the Modi Government in Court on cases connected with the legal and constitutional rights of dalits and adivasis is in sharp contrast to their preservation of self-interest. The country has witnessed how a battery of senior lawyesr led by the Attorney general of india have been fiercely arguing to protect the Government in the Rafael corruption case.
No Provision for Eviction under the FRA
The Forest Rights Act was adopted precisely because under the previous Vajpayee led NDA Government a somewhat similar situation had arisen after the Supreme Court gave an order to evict all forest dwellers with a cut off year of 1980. More than two lakh, mainly tribal families were coercively evicted from the forest in 2003. There were no procedures, no redressal mechanisms, they were just thrown out like flies from milk. It was one of the most cruel, inhuman, undemocratic, unconstitutional actions. As it is in the four decades after India became independent, in the name of development there was massive displacement of tribal communities from the forests and the lands under their occupation. Official figures of Government appointed communities put the numbers at around 85 lakh tribal families which constituted 40 per cent of all those displaced. At that time the tribal,population was around 7.5 per cent of the population bearing the burden of 40 per cent of all displacement.
It is this historical injustice that was sought to be addressed in 2005.It was the Left and specifically the CPI(M) which inside and outside Parliament fought for a law to address these issues.It was the CPI(M) which within the Select Committee of Parliament substantially changed the weak draft that was placed by the the. UPA Government and through a stiff fight succeeded in strengthening the Act on several grounds.
The Act gives the gram Sabha s a crucial role in processing the claims. At the same time it suggests detailed procedures of redressal if the claims are rejected. In wild life sanctuary areas it ensures that rights under the FRA have to be recognized in case any relocation is required.
There is not a single word in the law which sanctions eviction.
Over 50 per cent of India’s tribal communities live in areas under the Fifth Schedule. These areas are also covered under the PESA laws. The FRA along with these constitutional provisions and laws protect the tribals from eviction. Therefore the question is on what basis did the Supreme Court order evictions? But what is clear is that the Central Government under Modi, connived with the petitioners to assault the law.
FRA is a Barrier to Ease of Business Policy
In fact from the early days of the Modi Government it had targeted the Forest Rights Act and tribal communities and traditional,forest dwellers as a barrier to its pro corporate policies in forest areas.If tribals are given patta’s and even more importantly if tribals are granted community rights over the forests as mandated by this law, then companies will face big problems for their projects on forest lands. Therefore the Government’s effort was to reduce the impact of the law. It did this by using the Ministry of Environment and Forests which was notorious for its attempts to block the FRA. In fact it is the retired officers of this Ministry which went to court against the FRA. A few months ago the MOEF brought out a National Forest Policy document which is in the main a blueprint of handing the forests over to the private sector with permissions to raise plantations for commercial use. The CPI(M) strongly opposed this draft.
Within a period of just three months of taking office, the Modi Government set up the High Level Committee under former Caninet Secretary TSR Subramanium to review all environmental laws with a view to promote the interests of big mining companies and other private sector companies who wanted forest land for their projects. There were pending projects for forest clearance with an approximate value of 15 lakh crore rupees when Modi took office. So the aim was to,facilitate these projects.
The Subramanium Committee in its recommendations did exactly as the Government wanted. It suggested that clearances for projects in forest areas should be fast tracked by simplifying procedures. It recommended that for linear projects, for roads, railway lines, transmission consent of gram Sabhas was not required. In July 2015, the Palriamentary Standing Committee of Parliament rejected this report. It said “it would result in an unacceptable dilution of the existing legal and policy architecture established to protect our environment”. However in spite of the objections, the Modi Government implemented the recommendation of the report, issued amendments to the rules of environmental clearance and removed the role of gram Sabha s for linear projects.This was a direct violation of PESA as well as the FRA.
Betrayal of Adivasi Rights.including by TMC
Secondly, the Modi Government brought amendments to the Mining and Mineral Act which were totally against tribal interests. The parliamentary Standing Committee had suggested that in the context of mass displacement and dire poverty of adivasis in rich mining areas, 26 per cent of the profits of mining companies should go as compensation for the tribals affected. The Modi Government scrapped this recommendation. It passed amendments which did away with the right to consent of adivasis in mining projects, it totally bypassed the issue of mandatory recognition of rights under the FRA in mining areas. In Parliament when these anti- tribal amendments were brought, it was only the Left parties which objected. The TMC with its large contingent of MPs in Parliament utterly failed to defend the rights of tribals and raised no objections.
Again when the Modi Government brought the Compensatory and Afforestation Act which handed over money to State Governments of the value of the forests destroyed by companies as compensation, the TMC MPs again, driven by the greed to get control of the compensatory funds once again totally betrayed the tribal interests and connived with the Modi Government in getting the Bill passed through the Rajya Sabha.
This law known as the CAMPA law, transfers all funds taken as cess from companies who have felled trees for their projects to State Governments. They are supposed to set up committees to use the funds for tribal welfare. But the funds are being used without any oversight by committees dominated by bureaucrats. The voices of tribals were silenced.
The Government also surreptitiously amended several rules which were a direct assault on the FRA. In 2014-2015, there were serious differences between the Environment Ministry’s encroachment on the jurisdiction of the Tribal Affairs Ministry, But under the direct intervention of the PMO, the Tribal Ministry was snubbed. The amendments sought to dilute the workin g of the FRA in wild life sanctuaries at a time when the Government is declaring huge swathes of forests as sanctuaries to help big companies in the tourist industry, without any consultation with gram Sabha s. Similarly, now middle sized mines can start functioning without the consent of gram Sabha s. Automatic clearance has been allowed for power and irrigation projects of a particular size. These are only some of the examples of how the Modi Government has sought to eliminate tribal rights in forest areas.
The stay granted by the Supreme Court in the present case is only temporary. The fundamental,policies geared towards ease of business by the Modi Government have shown that the Government is committed to diluting the law. Many State Governments run by the BJP have followed these policies. As far as the TMC led Government is concerned the State Government has never once raised a formal,protest against the Modi Government on the issue of FRA. It’s MPs in Parliament have been more concerned with saving themselves from the CBI in Sarada matters rather than saving tribals from eviction.
Clearly at this juncture in the context of the forthcoming Lok Sabha Elections, it is only by removing the Modi Government from power and strengthening the Left in Parliament and outside, that tribal rights can be better protected.