The Forest Rights Act

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Explainer: Millions Face Possible Eviction – What is the Supreme Court Forest Rights Case About?

Yesterday (July 22nd), tens of thousands of tribals and forest dwellers held protests across India (on the call of the Bhumi Adhikar Andolan). Climate change organisations from around the world have condemned the Indian government. And soon, the Supreme Court is likely to hear a case in which it had earlier told State governments to evict millions of tribal and forest dweller families. The order was subsequently put on hold.

But what is all this about?

Why was the Forest Rights Act passed?

Millions of people have lived in and near India’s forest lands for centuries, but until 2006 they mostly had no legal right to their homes, lands or livelihoods. India’s forest laws followed a colonial model that empowered government officials – forest officers – to decide all questions relating to forests. This resulted in a situation where forests are destroyed merely based on the signature of a few officials in Delhi, while tribals and forest dwellers are subject to harassment, evictions, etc, on the pretext of being encroachers in their own homes. Torture, bonded labour, extortion of money and sexual assault are all extremely common. The situation is so bad that in 1989 the then Commissioner for SCs and STs, in his 29th Report, had said that “The criminalisation of the entire communities in the tribal areas is the darkest blot on the liberal tradition of our country.”

It is not an accident that tribals are the poorest communities in India. More background on this is here.

What does the Forest Rights Act say?

Following nationwide protests, in 2006 the Forest Rights Act was passed. It put in place a three stage process by which the rights of tribals and other forest dwellers were to be recorded and recognised. It listed thirteen types of rights, including rights over land being cultivated, rights to non-timber forest produce, and most crucially, the right to protect and conserve forests (which no Indian law had ever recognised as a right before). Details of these rights can be found here.

How does the Forest Rights Act help conservation?

The FRA changed the old system, where only officials had decision making powers, to one where officials should be accountable to the people they are ostensibly meant to serve.  Using its historic provisions recognising forest dwellers’ right to conserve, the Forest Rights Act has been used by communities around the country to challenge tree-felling, fight commercial plantations in the name of compensatory afforestation, oppose ecologically destructive projects and consequent air, soil and water pollution, and regenerate biodiversity. The Act has been hailed by Indian wildlife experts, international conservationists and conservation scientists, by groups fighting climate change and by other movements around the world as a step forward for both social justice and conservation.

What is the Supreme Court case about?

In 2008, retired forest officials and their associations filed six cases in six High Courts (that were cut and paste copies of each other) and two groups of wildlife NGOs filed cases in the Supreme Court. All of these cases sought to have the Forest Rights Act struck down as unconstitutional. More details on what the petitions are asking for can be found here.

What did the Court order in February and why?

In early 2016, the petitioners stopped asking for the Act to be struck down and instead began demanding that those forest dwellers whose claims had been rejected should be evicted (this is a misleading claim, see next question). After initially opposing this in court, the BJP government chose to remain silent for two years. As a result, in February the Court ordered the eviction of all rejected claimants. This would have affected over nine million people.

The order was condemned by conservationists, forest dwellers’ movements, opposition parties, and several United Nations special rapporteurs for human rights.

Why did the Court put its order on hold?

After nationwide protests, the government finally went back to the Court and pointed out that the petitioners are deliberately distorting facts (more details here). In reality, the Centre admitted, most rejections of claims have been illegal. But instead of asking the Court to take back its order, the Centre only asked for it to be “put on hold.” The Court did so and asked State governments to report on how they had rejected claims.

Despite the court putting its order on hold, some States continued to try to evict people, leading to clashes in Madhya Pradesh, Telengana, Uttar Pradesh and elsewhere.

What is going to happen on July 24th (or whenever the case is next heard)?

If the case is in fact heard tomorrow, the Court will

  • review the replies by State governments
  • hear applications from different groups seeking to be heard in favour of the FRA, including senior conservationists and academics, national adivasi and farmers’ organisations, and others
  • hear whatever the Central government wishes to say, if anything

The Court may choose to keep its earlier eviction order on hold, to withdraw it, or to lift the hold, which will again place more than nine million people in danger of eviction.

What is all this talk about satellite imagery?

The petitioners and some forest officials have long been claiming that satellite images both show “forest destruction” and should be used to verify if a person claiming forest rights actually had them. This is a deliberate misconception.

In reality, satellite images:

  • Are easy to distort, since everything from seasonal changes to lack of ground truthing can lead to misleading conclusions (here’s a striking recent example)
  • Have nothing to do with most of the rights under the Act, such as non-timber forest produce, grazing, etc., which won’t show up on satellite images anyway
  • Cannot even be used to verify land rights, since a person may choose to leave land under their occupation fallow for some time, may grow fruit trees or other tree crops, or may have had trees illegally planted on their lands

As a result, in 2013 the Gujarat High Court had held that satellite imagery can be used as one among several forms of evidence, but cannot be made a mandatory requirement for recognition of forest rights.