ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Who Is the Encroacher of Tribal Lands?

The present forest and wildlife conservation practices require a serious rethink.


The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (henceforth, Forest Rights Act) were aimed at undoing the historical injustices that tribes have suffered for centuries. Their forest rights are now in jeopardy following the Supreme Court’s order directing states to evict tribes and other traditional forest dwellers whose claims for recognition of their rights have been rejected. The order is going to affect over 10 lakh families across 16 states, and may cover a much larger number considering that there are other states that are yet to make submissions to the apex court. It has come in the wake of petitions filed by Wildlife First, a non-governmental organisation and a few retired forest officials challenging the legality of the Forest Rights Act. At the time of going to the press, the Supreme Court has stayed this order and directed the states to submit details of the process adopted inrejection of claims under the Forest Rights Act. However, this can be seen as only a temporary relief.

This is not the first time that the apex court has ordered the eviction of tribes from their traditional and ancestral land. It did so earlier too on a similar petition resulting in countrywide evictions between 2002 and 2004. This process was marred by violence, deaths, protests, and uprooting of around 3 lakh households. The recent order has also foregrounded the attitude and disposition of the government towards the tribes and theissues that affect them. Indeed, this order would have been different, perhaps, had there been government lawyers todefend the interests of the tribes.

The petitioners blame the tribes for deforestation andencroachment on forestlands, including protected areas, and thereby posing a threat to wildlife. How tenable is this notion that the tribes and traditional forest dwellers are encroachers or illegal occupants of forests? The colonial state had usurped their rights of control and management. They continued toenjoy their traditional rights, though with some restrictions. However, post independence, under the new forest policy, the concessionenjoyed as a de facto right was taken away. Further, in view of the policy of maintaining one-third of the country’s land area under forest, the enthusiasm to achieve this objective led to the claiming of the tribes’ lands, with even treeless land being brought under the control of the forest department as forestland. Thousands of kilometres of tribal land wasencroached upon by the forest depart­ment. Later acts such as the Forest (ConservationAct, 1980 and the Wildlife (Protection) Act, 1972 too encroached on their land. It is clear, therefore, that it is the state that is the encroacher.

The crucial question now is this: Is the onus of the depletion of forestlands to lie squarely on the tribes and other forest dwellers? Since independence, tribal areas have been exploited for mining of minerals and setting up of industries and other infrastructure development projects, such as power, dams, roads, and defence establishments, which have not only led to massive deforestation, but also the eviction of tribes and other forest dwellers from their habitats. Since liberalisation, there has been an unprecedented entry of companies, includingmultinationals, for exploitation of resources in tribal areas. It is ironical that the tribes are held accountable, but not those who denude the forests for private gain and irreparably harm the environment and animal population in the process.

It is worth noting that, despite allegations of deforestation against tribes, the forest cover, including dense forest, is the best in tribal areas even today. In fact, this should lead to the questioning of the practices of forest and wildlife conservation that are being followed at present.

The forest department and its officials, along with urbane and elitist conservationists, have been hostile to the Forest Rights Act from the time of its framing to that of drawing up the rules under it. There have been numerous complaintsregarding the manner in which it is being implemented. The process for recognition of the claims goes through three levels. The gram sabha recommends the claim, which then goes to the subdivisional-level authority, and from there it is sent for verification to the district-level authority consisting exclusively of officials,including those of the forest department. It is here that therejection of the claim takes place. Rejection does not always mean that the applicant’s case lacks merit. The rejections are often arbitrary, against the recommendations of the gramsabha and driven by lobbies that want to hand over the forests to private parties and businesses. The Ministry of Tribal Affairs itself has observed that claims have been rejected on frivolous grounds. Lakhs of appeals are pending against the rejections and they have not yet been considered. Section 4(5) of theForest Rights Act specifies that no one can be evicted without proper procedure, but the autho­rities are themselves responsible for its violation and arbitrary rejection. In several cases, the claims have been rejected based on flawed methodologies that are in violation of the act’s rules. Often, the rejections are based on only satellite maps, even though they are supposed to be supported by ground surveys as per the rule.

The manner in which this decade-old case has been handled by the apex court does not repose much confidence in thejudgment. Indeed, lawyers and judges seem to be far from aware on issues related to tribes. The provisions provided in the Constitution treat tribes in a special way. It is important that lawyers and judges familiarise themselves with theseprovisions and laws as well as understand the spirit in which the framers of the Constitution viewed the tribal populations. Indeed, it should form an integral part of curriculum at law universities in the country.

Updated On : 5th Mar, 2019


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