Whose land is it, anyway?

The Supreme Court’s recent order to state governments to provide data on evictions of tribals and forest-dwellers against rejected land claims under the Forest Rights Act (FRA) of 2006 has underlined the inconvenient truth of the systemic indifference to a marginalised section of India’s population. Signs of tribal discontent with the way the FRA, which seeks to recognise forest-dwellers’ rights, was administered were evident in the “long march” of rural folk from Nashik to Mumbai in March 2018 last year. At the time, tribal leaders voiced complaints of a high rejection rate of claims under the FRA. Instead of correcting this anomaly or defending this critical law, which sought to reverse British-era forest legislation that overrode customary rights, the Central government displayed startling apathy by neglecting to send a lawyer for the hearing in response to a PIL (public interest litigation) petition from wildlife groups. On Monday, the Bharatiya Janata Party finally tried to make amends by asking all its chief ministers to file a review petition against the court’s order. This came soon after Congress President Rahul Gandhi’s direction to the government of Chhattisgarh, the state with a high proportion of “at risk” tribal households, to do it. All this may well be an election gimmick, but for India’s beleaguered tribals, the move by both the national parties has not come a day too soon.

That’s because as a result of the Supreme Court’s February 13 order, which has set a deadline of July 27 for states to comply, nearly 1.9 million tribal households in 16 states face the threat of eviction. Some activists say the order need not lead to homelessness and landlessness. They say many of the claimants are already landholders who have extended their agricultural fields into the forest. These arguments may be valid for some tribal households, but such statements ignore the fact that the qualifying rules have been so absurd as to exclude almost half the claimants, defying the objective of the FRA. In a nutshell, the claimant has to prove that he or his household has primarily resided in forest lands and depended on the forest and forest land for “bona fide livelihood needs” for 75 years, or is a member of a scheduled tribe. It takes no rocket science to understand that furnishing proof of three generations of habitation for a barely literate tribal is well-nigh impossible.

Many of these claims are currently under review by gram sabhas, the village assemblies that decide these applications under the law. The Supreme Court’s eviction notice could well impede this process. Recent history also offers an ominous precedent of the impact, admittedly unintended, of a 2001 Supreme Court order. This forbade the Centre from regularising encroachments without the court’s permission in a case involving the destruction of forests by commercial interests and lobbies. The ministry of environment and forests chose to interpret this as a direction to evict encroachers, and state governments were instructed to do so for those who had “encroached” after 1980. Between 2002 and 2004, this order triggered a massive drive that uprooted some 300,000 households from land they had inhabited for generations. Many of them were victims of brutal state violence — their homes were burnt, women sexually assaulted, and thousands illegally detained. It was against this background that the National Advisory Council, under the United Progressive Alliance, framed the contours of tribal rights. The FRA, thus, was to have been a major corrective had poor and unimaginative rule drafting not defeated its intent.

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