It further directed the Chief Secretaries to ensure that “where the rejection orders have been passed, eviction will be carried out on or before the next date of hearing. In cases the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court”. The Court further noted that “where the verification/rectification/review process is pending, the concerned State shall do the needful within four months from todat and report be submitted to this Court”, and asked the Forest Survey of India (FSI) to do a satellite survey and put on record the encroachment positions after the eviction as far as possible.

Almost 20 lakh forest dwellers, including scheduled tribes and other traditional forest dwellers have been affected by this order, which has sent shock waves across the country. Besides16 States, other States would also be compelled to comply with this order. In order to understand the sheer injustice of this order, one has to go into the history of the present litigation, and why the Forest Rights Act was passed.

The Forest Rights Act was enacted in 2006 to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations, but whose rights could not be recorded; to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.

In fact, the Preamble itelf notes that “the forest rights on ancestral lands and their habitat were not adequately recognised in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and other traditional forest dwellers who are integral to the very survival and sustainability of the forest ecosystem”. Thus, it is clear that Act was enacted to recognise the rights of the forest dwellers on the forest land, so as to redress historic injustice of exclusion and marginalisation of them for centuries.

Section 2© defines forest dwelling Scheduled Tribes as the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bonafide livelihood needs and includes the Scheduled Tribe pastoralist communities. And Section 3 provides for a list of rights vesting in the forest dwellers under this Act, including the right to live in the forest land under the individual/common occupation for habitation or for self-cultivation for livelihood; right of ownership, access to collect, use and dispose of mino forest produce; other community rights of uses or entitlements such as fish/other products of water bodies; and right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity, amongst others. The Act then provides an extensive mechanism and procedure for determining the nature and extent of individual or community forest rights, starting from Gram Sabha to Sub-Divisional Level Committee to the District Level Committee, and the State Level Monitoring Committee.

Thus, it is clear that the intention of the Act is to vest forest rights in the dwellers and not to dispossess/evict them. It recognises that the verification and recording of forest rights has been quite problematic till now, and the Act proceeds with an assumption that those scheduled tribes and other traditional forest dwellers who have been residing in forest lands for generations and depend on forest produce for their livelihood and sustenance ought to be vested with rights in those lands.

However, soon after its passage, the constitutional validity of this Act was challenged in the present petition in 2008 filed by a wildlife NGO, Wildlife First, in conjunction with retired forest officials, who believed that the Act was unconstitutional, and resulted in deforestation. They also claimed that the rejection of claims under the Act ought to result in automatic eviction of tribals from forest lands, and the States had not taken any action to reclaim land from such persons. These claims have been vehemently opposed by the Tribal groups, who argue that many rejections are incorrect/faulty and need to be reviewed, in accordance with the Act.

The case meandered in the Supreme Court for almost a decade, with no proper hearing on the merits of the Act, but in 2018 onwards, it became more about eviction of those whose claims been rejected than about adjudicating the constitutional validity of the Act. This shows the mindset of the Supreme Court judges who, in one sweep, can render a statute toothless, show complete disregard to its aims and objects, and pass an order, without understanding the ethos of the law. The use of the word ‘encroachment’ in the Supreme Court order harks back to the colonial era, when forest dwellers were seen as ‘encroachers’, and it was this precise thinking that was set to be overturned by the 2006 Act.

However, the biggest culprit in this whole process has been the Central Government, who did not put up even a defence of the law, let alone an adequate defence. It is the job of the Government to defend the validity of a law, which the present government failed miserably. In fact, the Central Government lawyers were not even present on the last three hearing, including on 13th February, 2019, when this unconsciable order was passed by the Apex Court. In fact, in early February, 2019, several activists and NGOs had appealed to the Ministry of Tribal Affairs to utmost defend this critical law, and not allow its dilution, and to apprise the Court that the Ministry itself had admitted that many rejections of the claims were incorrect, and needed review. However, this was of no effect, since the Central Government facilitated the order for one of the biggest evictions of adivasi and tribals in the independent India. Though this Government’s love for big corporate interests and disdain for tribal rights is well-known, it is unthinkable that a Government will let a statute be rendered toothless, owing to its vested interests.

Thankfully, the issue has become a huge political concern just before the General Elections in May, 2019, with the opposition parties slamming the Government for its complete callousness in not defending the Act. Hopefully, the States will take adequate steps to challenge/appeal against the order, and defend the Act in its entirety. (IPA Service)