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The Central government failed to argue in defense of the Forest Rights Act in the Supreme Court again today. The Court heard arguments in the case against the Forest Rights Act, in which millions of people have been threatened with eviction (see here for a brief explainer on this law and this case). The Court asked where the Central government was and was told the Solicitor General was not present. The Court then heard the matter, allowed all the requests for impleadment by a large number of organisations defending the Forest Rights Act, and also allowed the petitioners’ request to make the Forest Survey of India a party (see below). The Court also said its order putting evictions of rejected claimants on hold will continue, and the matter will now next be heard on November 26th for final arguments.
Observing in court that “it is we [urban and elite citizens] who have destroyed forests in places like Pachmarhi”, the Bench declined the effort of the petitioners to make the situation seem like an emergency, and granted four weeks’ time to the State governments and to other parties to supply data (see below) and to reply. Several other things happened today:
- Several adivasi and forest dweller organisations, as well as senior academics and conservationists, had applied to be heard in defense of the Forest Rights Act. They were allowed to implead/intervene in the case.
- One of the key petitioners – the Wildlife Trust of India, lead petitioner in the earliest case before the Court against this law – applied to withdraw from the case (the Court heard it but hasn’t passed an order as yet).
- The Court issued notice on the recent applications of the petitioners to stop State governments from reviewing rejections of claims under the law, and to direct the Central government to release funds for the Forest Survey of India to conduct its survey using money from compensatory afforestation funds (see here for more on this). The Court will hear arguments on these applications later, after State governments, other organisations and the Central government reply.
- The Court clarified that its “interim orders will continue” (this is the order dated 28.2.2019 under which evictions of rejected claimants have been put on hold).
- The Court clarified that the Forest Survey of India’s survey of forest ‘encroachment’, using data from States, will continue, based on the petitioners’ claim that satellite imagery can be used to verify claims under the Act (see here for why this is a bad idea). The petitioners sought to have the Forest Survey of India added as a party, and this was also allowed by the Court.
- The Court finally said that in the next hearing it will start hearing arguments on all issues, including the constitutional validity of the Act – which is what this case was supposedly about in the first place, see here for a summary – and procedures under the law.
Since February 2019, millions of tribals and forest dwellers whose claims for rights under this law have been rejected have been living in fear of eviction (to understand this law and the case, please see this explainer). These cases, filed by a small group of wildlife NGOs and many retired forest officials, were originally filed on the basis that this law is not constitutional. Over the years, the petitioners then sought to claim that the very procedure that they had claimed was unconstitutional should now be used as the basis for evicting people. From 2016 to February 2019, the Central government remained silent in the matter, and the Court was given only the petitioners’ version, resulting in an order in February to evict all rejected claimants. After nationwide protests, the Centre finally argued in court and that order was put on hold.
We are pleased to see that the Court has not entertained the efforts of this small group of wildlife NGOs – who are not even supported by the vast majority of conservationists – to keep on trying to claim that there is some emergency related to forest destruction or that people should be evicted. Instead the Court has now said that it will hear arguments on the constitutional validity of the Act and that it will give a chance for others to be heard. The Central government’s continued apathy and silence in the face of this attack on the rights of millions of people, however, is deeply disturbing.
Campaign for Survival and Dignity
Tomorrow, SC Will Hear New Applications in Anti Forest Rights Case That Again Threaten Rights of Millions
The Supreme Court is scheduled to hear the case against the Forest Rights Act tomorrow, September 12th (see here for a brief explainer about the Act and the case). The petitioners have filed new applications in this case that could again result in millions of people being denied their rights.
The key question tomorrow will be – will the Central government oppose these applications and defend the FRA? Or will it again choose to just argue on technicalities?
In three new applications before the Court, the petitioners are again seeking to turn the focus of their case away from the constitutionality of the law and on to new subjects which have nothing to do with their original petition. The two main applications are here and here, but relevant paras are linked below. They want the Court to:
- Stop State governments from reviewing illegal rejections of claims by forest dwellers (see para 9 here). They also want to stop acceptance of claims for rights (see para 10 here). This at a time when the Supreme Court was just about to being considering how States have violated the law. The petitioners clearly don’t want this. Most States have admitted that the process undertaken for rejection of claims for rights was largely illegal. Not only that, the law provides no time limit for filing of claims for rights (contrary to what the petitioners say), given that the affected people are oppressed, marginalised and often non-literate.
- Ask the Forest Survey of India to survey all forest destruction in the country (see paras 6 and 7 here). The aim, presumably, is to hold forest dwellers responsible for this, when the government itself has been illegally diverting forest land en masse. In fact, satellite imagery is not a deciding factor for claims under this Act – it is legally untenable, impossible to use without ground truthing, irrelevant to most rights under the Act, and can be misleading when people grow tree crops or trees are planted illegally on their land.
- Implead the Forest Survey of India as a party. The petitioners have gone from being supposedly against the constitutionality of the Act; to assuming that the Act is constitutional and asking for decisions under it to be used to evict people; and now they want to make this a case about using satellite images to examine supposed “encroachment.”
The only reason they have gotten away with all this so far is because of the silence of the Central government. Back in February, the Court had passed orders that would have resulted in the eviction of at least nine million people. These orders were subsequently put “on hold” after nationwide protests resulted in the Central government asking the Court to do so.
Till date, the Central government has never asked the Court to withdraw these orders. It has instead only seemed to be wanting to buy time. Will it oppose these new applications?
Again, to know more about this case and the background to it and the Act, see our explainer here.
Campaign for Survival and Dignity
Today the Supreme Court heard the cases against the Forest Rights Act. The Central government chose not to argue on the main question of evicting people, but instead just pointed out that due process have not always been followed, in response to a question from the court. Seven states have not yet filed their reply affidavits.
The Court hence directed that the State governments who haven’t filed replies should do so within fifteen days and the matter will next be heard on September 12th.
The Court also directed state governments to supply information about rejected claims to the Forest Survey of India by August 31st. We hope this question is challenged in the next hearing, as this reliance on satellite imagery is not in accordance with law and is dangerous (see last question here).
The order putting evictions on hold continues – and any State government attempting to evict people on the pretext of this case is not only violating the law but also the court’s order.
We are disappointed that the petitioners’ attempt to distort both the law and the facts has still not been fully challenged and the eviction order is still only “on hold”, as opposed to being withdrawn. This order emerged out of the Centre’s failure to defend the law in 2017 and 2018. We and many forest communities of this country will continue to fight for the Central government to do its job in court, defend the law and have this order withdrawn.
Campaign for Survival and Dignity
The Supreme Court did not hear the case against the Forest Rights Act today due to other matters. This delay is not bad news in itself, but even though the Court specifically put evictions on hold on February 28th, there have been threatened and actual evictions across the country. Moreover, so long as the order is only “on hold”, this kind of misuse will continue, and the spectre of mass evictions being ordered again will also hang over millions of tribals and forest dwellers. It is the constitutional duty of governments – particularly the BJP government at the Centre – to ensure that this case is dismissed. The silence of the Centre in 2017-2018 ensured that this situation arose. We call upon the government to present the Court with the true picture – that this is a historic legislation for the rights of millions of people and a democratic step forward for genuine conservation. To know more, see our explainer on this ten year old case.
On 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.
What is going to happen when the case is heard next?
The Court will, most likely:
- 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
- hear the petitioners’ attempts to make satellite imagery into the centre of their case (see next question below)
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.
Two Days Before Supreme Court Hearing, Groups from 24 Countries Say Government Undermining Fight Against Climate Change by Attacking Forest Rights
Forty three organisations fighting climate change, from 24 countries around the world, have said that the BJP-led government is threatening the fight against climate change by attacking the rights of tribals and forest dwellers. Referring to the Modi government’s silence in Supreme Court cases against the Forest Rights Act (next hearing expected to be on July 24th), and the government’s proposal to bring in draconian amendments in the Indian Forest Act, these organisations say that “The Indian government’s steps imperil the livelihoods of millions of people, threaten to restore a colonial and autocratic model of forest management, and threaten the global fight against climate change.”
Saying that “The protection of local communities’ rights over forests and land is a crucial weapon in the fight against climate change” and that the “international community has repeatedly recognised this fact” – including in agreements that India has signed – the groups “call upon the Indian government to refrain from such steps, to vigorously defend the Forest Rights Act in court, and to ensure that all legal and policy changes strengthen the rights of local and indigenous communities rather than weakening them.”
The statement and signatories are below. The signatories are from Peru, Tanzania,Afghanistan, Bangladesh, Bolivia, Burundi, Cameroon, Colombia, the Democratic Republic of the Congo, Ecuador, France, Ghana, India, Malaysia, Nepal, Nicaragua, Palestine – Israel, the Philippines, South Africa, Spain, the Netherlands, the United Kingdom, the USA, and Vietnam.
Campaign for Survival and Dignity
In Solidarity with Indigenous People and Local Communities facing Evictions in India
We, as organisations working to fight climate injustice around the world, are dismayed by recent developments in India and call upon the Indian government to take an active stand in favour of the rights of indigenous and local communities in the country.
The protection of local communities’ rights over forests and land is a crucial weapon in the fight against climate change. The international community has repeatedly recognised this fact, whether in the preamble to the Paris Agreement, the agreement on REDD+, or other international covenants. Indeed, the 23rd Conference of Parties specifically finalised the Local Communities and Indigenous Peoples’ Platform for precisely this purpose, to ensure that these communities’ vital contributions are recognised and heard.
In the Indian context, the 2006 Forest Rights Act attempted to reverse over a century of colonial, centralised forest management and to attempt to recognise the rights of local, indigenous and forest dwelling communities in India’s vast forest areas. The law was hailed the world over as a step forward for conservation and justice. Using this law, communities across the country have been resisting monoculture plantations, protecting wildlife habitats, challenging pollution of soil and water sources, and opposing forest destruction from commerce and industry.
Unfortunately, however, it appears that recent policy steps have sought to undermine this historic achievement.
First, it is alleged that, when some retired forest officials and NGOs approached the Indian Supreme Court to reverse key elements of the new Act and restore the absolute power of forest officials over forest land and indigenous communities, the Indian government remained silent and did not defend the Forest Rights Act for over two years.
Secondly, the government has recently proposed amendments to the Indian Forest Act (India’s main forest management legislation). These new provisions would grant forest officials the power to arbitrarily take over local and indigenous’ communities rights, and also provide them with draconian powers including the right to arrest and search without warrant, to use firearms with impunity, and to impose collective punishments on entire communities by barring them from exercising their rights.
As a result of the government’s silence in the Supreme Court, the Court ordered the en masse eviction of millions of forest dwelling households in February 2019. The proposed eviction on an unprecedented scale led to a nationwide uproar (the Court subsequently placed its order on hold). The next hearing for this case is on July 24th.
The Indian government’s steps imperil the livelihoods of millions of people, threaten to restore a colonial and autocratic model of forest management, and threaten the global fight against climate change.
As groups working on climate change from around the world, we recognise that one of the most important and effective ways of protecting our planet’s biodiverse ecosystems is by safeguarding the rights of Indigenous Peoples and Local Communities. Actions done in the name of climate change or environmental protection hence must not threaten their rights.
We therefore call upon the Indian government to refrain from such steps, to vigorously defend the Forest Rights Act in court, and to ensure that all legal and policy changes strengthen the rights of local and indigenous communities rather than weakening them.
- Plataforma Boliviana frente al Cambio Climático, Bolivia
- Sahabat Alam Malaysia (Friends of the Earth Malaysia), Malaysia
- Abibiman Foundation, Ghana
- Asociación Ambiente y Sociedad, Colombia
- Friends of the Earth – England, Wales and Northern Ireland
- Climate Action Network South Asia (CANSA)
- Vaagdhara, India
- Amnesty India
- Andaman Nicobar Environmental Team, India
- EcoHimal, Nepal
- Environics Trust, India
- Tadbeer Consultancy and Research, Afghanistan
- Arjon Foundation, Bangladesh
- UK Youth Climate Coalition (UKYCC), United Kingdom
- Association For Promotion Sustainable development, India
- Dignité Pygmée (DIPY), Democratic Republic of Congo (DRC)
- Beatriz Roglá, Spain
- Igapo Project, France
- Solidarité des Volontaires pour l’humanité, Democratic Republic of Congo (DRC)
- Humane Trust, Koraput, India
- Women Major Group, India
- Association Chamade, France
- PLANT (Partners for the Land and Agricultural Needs of Traditional peoples), USA
- Asian Indigenous Women’s Network
- Center for Indigenous Peoples’ Culture of Peru
- Centre for Indigenous Peoples Research and Education, Nepal
- Centre of Research and Development for Upland Areas, Vietnam
- Ugnayang Pambansa para sa Katutubong Kaalaman at Talino (UPAKAT), Philippines
- Nuwekloof Rural Development, South Africa
- Luna Creciente, Ecuador
- War on Want, United Kingdom
- Punaruthan, India
- Ingénieurs sans frontières Agrista, France
- HATOF Foundation, Ghana
- Bangladesh Apparels Workers Federation-BAWF, Bangladesh
- Jahalin Solidarity, Palestine – Israel
- Global Rainbow, The Netherlands – International
- Association pour le Développement et la Reintégration Socio-Economique des Populations Autochtones et Locales”ADRSEPAL”en sigle, Burundi
- Amis De La Justice, Democratic Republic of Congo
- Center for autonomy and development of indigenous peoples (Cadpi), Nicaragua
- Pastoralists Indigenous Non Governmental Organizations (PINGO’s Forum) Tanzania
- Tanzania Indigenous Peoples Network on Climate Change (TIPNCC)
- Lelewal, Cameroon
Below please find a joint letter that was sent to the BJP government today by four national platforms of adivasi and forest dwellers’ organisations.
The government is trying to use two routes – a backdoor route through the Supreme Court and a front door route through proposed amendments to the Indian Forest Act – to condemn crores of tribals and forest dwellers in the country to destitution and extortion, brutality and eviction by forest officials.
The government is also enabling large-scale corruption by ensuring bureaucratic and non-transparent control of tens of thousands of crores collected in the name of afforestation and “development of mining-affected areas.”
The letter condemns these actions. Both these platforms and many others have planned mass protests and struggles around these issues in July and August.
Campaign for Survival and Dignity
Joint Appeal to the BJP Government: Stop Attacking The Rights of Tribals and Forest Dwellers
Shri Narendra Modi, Prime Minister of India
Subject: Attack on tribals and forest dwellers by Central government
Dear Shri Modiji,
We are writing to express our deep concern at the active attempt to attack the rights of tribals and forest dwellers by your government. We wish to draw to your attention three specific examples of this wholesale assault:
Since 2008, cases against the Forest Rights Act have been running in the Supreme Court. From 2008 up to 2016 the Central government played its constitutional role and defended this crucial law before the Court. From 2017 onwards, for no reason, the Central government’s counsels in the case did not make a single statement in defense of the law. We had raised this matter as early as February 4th. As a result, the petitioners’ view prevailed and on February 13th the Court passed an order to evict lakhs of families solely on the ground that they were unable to prove their claim under the law. After a nationwide uproar, your government rushed back to Court and managed to persuade the Court to put this order “on hold.” The next hearing in this matter is on July 24th. It is a matter of extreme concern to us and to the crores of forest dwellers of this country that your government has not made a single statement in public on this matter after February 28th. We fear that your government is again planning to try to sabotage the Forest Rights Act by remaining silent and thus allow for a mass eviction once again.
On March 7th, the Ministry of Environment and Forests sent a “proposal” for amendments to the Indian Forest Act, 1927, to all State governments. If this proposal becomes law, forest officials will acquire extraordinary powers that no other agency – including the security forces in disturbed areas – has ever had in the history of this country. Forest officials will be able to end people’s rights merely by paying cash compensation (s. 22A(2), s.30(b)); to use fire arms against tribals and forest dwellers with impunity (s.66(2)); to take confessions from accused and have them be admissible as evidence in court (a provision that does not exist in any other law) (s.64C); to shut down people’s rights in entire forests for flimsy reasons such as “willfully causing fires” (s.26(3)); to end shifting cultivation entirely; and so on. If these proposals become law they will be the single biggest attack on this country’s tribals and forest dwellers since the first British Forest Act in 1865. Your government will have committed a historic atrocity on the crores of tribals and forest dwellers in this country.
In 2016, when the Compensatory Afforestation Fund Act was passed by your government, it did not even contain a mention of forest rights. The Rules framed under the Act – contrary to assurances to Parliament – also allow forest officials to override tribals and forest dwellers and plant trees on their lands. This has already led to atrocities against tribals and violence, including most recently in Telengana and Maharashtra. Compensatory afforestation money is being wasted, siphoned off by corrupt officials, used as a pretext for evicting tribals and seizing their lands, and spent on buildings and guns when by rights it should belong to the country’s forest communities.
When the Mines and Minerals (Regulation and Development) Act was amended in 2015 and 2016, much fanfare was made of how a “mineral development fund” would be set up for the development of mining affected areas and communities. As of December 2018 more than Rs. 22,800 crore had been collected by state governments in these funds, but only Rs. 5,529 crore – less than a quarter of the total – had been spent. We call upon the Central government to investigate and reveal where the remaining 17,271 crores is. This is a further injustice on the country’s tribals.
In this context we call upon the Central government to:
Actively defend the Forest Rights Act in the Supreme Court, and place before the Court the correct legal position, under which evictions only for the inability to prove a claim are not justified in law and in any case are not related to the case before the Court;
Immediately withdraw the proposed amendments to the Indian Forest Act and instead amend that law and other forest laws to bring them into accordance with the Forest Rights Act and to prosecute officials who violate forest rights;
Ensure that money collected in the name of compensatory afforestation is only spent with the consent of affected gram sabhas and subject to plans prepared by them rather than by bureaucrats.
Announce a transparent audit of expenditure under the District Mineral Funds and take action against any officials or agencies who have diverted money in these funds, and alter the rules under this fund to ensure that any expenditure is subject to the consent of gram sabhas and is decided by bodies with representation from tribals and other affected communities.
Jitendra Choudhury, National Convenor, Adivasi Adhikar Rashtriya Manch
C.R. Baxi, Working President, Akhil Bharatiya Adivasi Mahasabha
Shankar Gopalakrishnan, Campaign for Survival and Dignity
Bijaybhai, Bharat Jan Andolan