Mumbai: The Supreme Court on Thursday stayed its 13 February 2019 order that directed the eviction of 1.19 million forest dwellers following an application by the Union tribal affairs ministry.
The order ruled their eviction by 24 July, 2019, under this premise: A rejected claim of forest dwellers for title over forest land implies encroachment or illegal occupation. The order separately instructed chief secretaries of 21 state governments to ensure eviction where rejection orders have attained finality although how the finality is determined is not spelt out. The Central government’s 17-page application sought to modify the Supreme Court’s order and “direct state governments to file detailed affidavits regarding the procedure followed and details of rejection of claims”.
So, where have lapses been in the process of rejection of forest dwellers’ claims for forest land titles?
Over the years, numerous violations in the process have been pointed out in at least six letters of the Union tribal affairs ministry, a joint-ministerial committee report and studies by groups working with the Adivasis. These violations on the part of district-level authorities include not providing written intimation of rejections, not accepting mandated documents as evidence in support of claims as well as sabotaging claims.
According to affidavits presented by state governments to the Supreme Court, 1.19 million claims of Adivasis and other traditional forest dwellers across 17 states have been rejected so far. States of Gujarat, Manipur, Himachal Pradesh and Goa are yet to submit the status of rejections before the Supreme Court. As per data maintained by the tribal affairs ministry as on 30 November 2018, 1.89 million individual forest rights claims have been rejected. This alluded to evictions at a much larger scale even as concerns over shortcomings in the rejection process remained.
The claims recognition and rejection process was first outlined in The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2008. It was more clearly defined in The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012. These Rules, also called the Forest Rights Rules, are an extension of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which is also called the Forest Rights Act.
Under these, every Adivasi and a traditional forest dweller living in the forests can submit a claim form for a title over the land they have occupied for farming and habitation. The claims are then processed by a three-tier mechanism established in the Forest Rights Rules.
Verification of claims is first conducted by the village-level forest rights committee followed by the sub-divisional level committee and finally by the district level committee which also grants land titles. At every tier, claims are either recognised or rejected.
No written intimation
However, in 2010, a joint committee report of the Ministry of Environment and Forests and Ministry of Tribal Affairs had pointed out how decisions of rejections were not intimated to claimants. “In an overwhelming number of rejection cases, the rejection is either not communicated to the claimant, or it is communicated but the claimants are not informed of their right to appeal. This is found across all states,” it had said.
When the amended Forest Rights Rules, 2012, were formulated, the aspect of communication of rejection was explicitly put forth. Section 12A (3) states that rejection of a claim at any tier must be communicated to the claimant to enable a petition to a higher committee. Section 12A (7) also mandates detailed reasons for not accepting claims to be recorded in writing by the district level committee. Additionally, a copy of the district level committee’s order along with reasons is to be made available to the claimant.
But, according to the Union tribal affairs ministry’s application to the Supreme Court, its letter to state governments dated 12 September, 2014, had noted that reasons for rejection were not communicated.
A set of Frequently Asked Questions by the Ministry of Tribal Affairs and the United Nations Development Programme was issued to further clarify this. “Reasons for rejection must be supplied to the claimants,” it said. This is “so they can take any other legal recourse, such as, activating the writ jurisdiction of the constitutional courts, or any other avenue available in law.”
But, according to a 2016 India report of the Community Forest Rights Learning and Advocacy Group, which comprises of community members and researchers working on forest rights, this process is violated in most states. “Due process such as recording reasons for rejections, communicating them to the claimants, and hearing their appeals has not been followed,” the report stated.
The Union ministry’s application submitted to the Supreme Court also said: “The applicant has attempted to sensitise the state governments while deciding their claims. The rejection orders are not communicated or the same are without reasons. It is also noted that in certain cases, eviction orders are issued even before the appeals under the Act are exhausted.”
In the claims status data maintained by the Union tribal affairs ministry and state tribal development departments, the number of claims filed, approved, rejected and pending is enumerated. The number of appeals filed against rejected claims is not indicated.
Burden of documentary proof and arbitrary rejections
Where reasons for rejection have been communicated, they have been in gross violation of the Forest Rights Rules. “The claims are being rejected in some states as the officials are insisting on certain types of evidences,” stated a 12 July, 2012, letter issued to state governments by the Union Ministry of Tribal Affairs. “New technology, such as, satellite imagery, is being used as the only form of evidence for consideration of a claim,” the letter had further stated. The ministry had also annexed additional guidelines with the letter “in order to address the above concerns.”
Section 13 (1) and (3) of the Forest Rights Rules, provides for any two of the nine enlisted types of documentary evidence to be submitted by the claimants with their claim form.
The amended Forest Rights Rules, 2012, also make the point on documents to be submitted with claims clear. Section 12A (10) of these rules states: “No rejection of claims shall be merely on technical or procedural grounds.” Section 12A (11) also states that the sub-divisional and district level committees shall not insist upon any particular form of documentary evidence.
But, despite this, sub-divisional and district level committees in southern Gujarat’s Dang district, for instance, had, in August 2018, rejected claims of 51 Bhil, Konkana and Varli Adivasis across two villages citing “insufficient evidence”. Their documents consisting statements of elders, voter identity cards and ration cards were considered invalid despite the Forest Rights Rules specifying these as evidence. A total of 94.45 percent of total households in Dang are Adivasi.
Similar rejections on faulty grounds and in violation of the Forest Rights Rules were reported in other states too. In Odisha, 42 percent of the rejected claims were due to lack of evidence and faulty application of Forest Rights Rules, according to the 2016 Odisha report of the Community Forest Rights Learning and Advocacy Group. “Earlier government reports (such as primary offence report, encroachment cases) are insisted upon. Other prescribed evidences such as statement of elders, genealogy, and physical evidence are completely ignored,” the report said.
The 2010 joint committee report had also mentioned a range of wrongful reasons for rejection. These were claimants being employed in a government job, claimants already owning other revenue land, claimants’ farms not being cultivated with certain crops etc.
A 10 April, 2015, a letter issued to the state governments by the tribal affairs ministry had called for categorisation of rejection cases on the basis of their causes. “There is a need to have a relook into the cases of doubtful rejection so that any rightful claim does not get denied,” it had said. This was restated in two more subsequent letters dated 27 July, 2015, and 5 February, 2016, as presented by the ministry in its application to the Supreme Court. But, such a review had been pending across states, the 2016 India report of Community Forest Rights Learning and Advocacy Group observed. “Although the ministry has directed states to review rejected claims, barring a few examples, such as in Nandurbar and Jalgaon in Maharashtra, review of rejected claims is pending across states,” it said.
Just eight months before the order was pronounced, the tribal affairs ministry had again written to the state governments on 29 June, 2018, “to undertake suo motto review of rejected claims.” The letter had further said: “It may be ensured that no eviction of Forest Rights Act claimants takes place during pendency of review or appeal.”
Role of forest department
While lack of documents is a common reason for rejection by sub-divisional and district level committees, forest department officials at the village level have been found to disregard the Act in other ways.
Section 12A (1) of Forest Rights Rules, 2012, mandates revenue and forest department officials to be present during field verification of claims conducted by the gram sabha-constituted forest rights committee. The officials are also required to sign the proceedings with their designation, date and comments, if any. But, they have often been found misusing these provisions or failing in enforcing them.
This was recorded in the case of Vishakhapatnam district in Andhra Pradesh in a 14 July, 2014, meeting between the Union Ministry of Tribal Affairs and principal secretaries of a few state governments. Forest department officials, it was observed, had objected to and reduced the extent of claims recommended by the gram sabha-level forest rights committee without joint field inspection. “Due to this reason, most of the tribal beneficiaries are getting the title deeds for less extent instead of actual extent cultivated by them,” the minutes of the meeting stated. Similar testimonies were also brought up – in a 2016 report of the Indian People’s Tribunal, a collective of lawyers – by communities in Wayanad district, Kerala, Udaipur district in Rajasthan and Nandurbar district in Maharashtra.
“Thirty forest rights committees had sent letters to the forest department six times for joint inspection, but it had still not had happened,” Pratibha Shinde from Lok Samanvay Partishthan, Nandurbar, had said at the tribunal.
Madhulika, a volunteer with Vagad Mazdoor Kisan Sangathan in Dungarpur district of southern Rajasthan said that the recent Supreme Court order would embolden forest department officials to reject pending claims that are disputed. “There are eight villages in Dungarpur where 1,894 acres of land ownership of which was disputed after these were transferred from the revenue department to the forest department in 1985. So, their applications for land rights had not been accepted by either department for all these years,” she said. Madhulika added that only in the last few months after repeated agitations by people, their claims were accepted by the forest department. “But, the verification of these claims is yet to be taken by the officials. Their future is now clouded in the context of this judgment.”
The 29 June, 2018, letter of the tribal affairs ministry to chief secretaries of all states had also recommended revision of the training curriculum of front line staff and forest range officers. “There is a need for awareness and sensitisation of field staff about the symbiotic relationship of forest dwelling scheduled tribes and other traditional forest dwellers with forests and forest ecosystems,” the letter had said.
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Updated Date: Feb 28, 2019 16:00:00 IST