The Supreme Court on Thursday, 12 September, extended its stay against evictions of scheduled tribes and other forest dwellers, pending completion of the ongoing case challenging the validity of the Forest Rights Act, 2006 (FRA).
The next hearing in the case will take place on 26 November, when final arguments will take place regarding the constitutionality of the Act and the procedures under it for identifying ‘illegal’ dwellers.
The central government once again failed to appear before the court to defend the FRA, which was enacted to protect the rights of tribals and other forest dwellers (subject to a claims process), including the rights to protect and conserve forests, to prevent the cultivation of forest land and to collect non-timber forest produce.
The Centre’s previous failures to appear in multiple hearings of the case had led to an order by the Supreme Court on 13 February 2019, to state governments across India, to evict all those people whose claims under the FRA had been rejected.
On 28 February, the apex court had to place a stay on its own order, after massive nationwide protests that forced the Centre to ask for this. In its application for a stay, the Centre had pointed out that the process for assessing claims of forest dwellers may not have been properly followed.
The bench hearing the case, led by Justice Arun Mishra, had chastised the government on that day for failing to respond for such a long time, saying to Solicitor General Tushar Mehta: “You have been in a slumber all this while, and now after we passed this order, you are seeking a modification?”
The Campaign for Survival and Dignity, a group of several adivasi and forest dwellers’ movements that has intervened in the case, has criticised the Centre’s failure to appear in the case on Thursday in a statement, which says:
“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.”
What is This Case About?
In 2008, NGOs Wildlife First and Wildlife Trust of India filed a case in the Supreme Court which challenged the constitutional validity of the FRA. Other conservationists and retired forest rights officers filed cases in the high courts which were merged with the case being heard by the apex court.
The petitioners argued that the FRA had caused deforestation and led to illegal encroachment upon forest land. In addition to a declaration that the FRA was unconstitutional, they also asked for the recovery of forest land encroached upon by individuals whose claims under the Act had been rejected (ie, ‘illegal forest dwellers’).
In 2014, they specifically started asking for the eviction of forest dwellers whose claims under the FRA had been rejected by the relevant state government authorities. By early 2016, they had stopped arguing for the FRA to be struck down, and focused on this demand for evictions.
The central government is the respondent in the case, and though the BJP government initially opposed the evictions, they failed to appear before the judges to defend the Act in hearing after hearing. Following the outcry over the first SC order in February, the Modi government asked the court to direct state governments to “file detailed affidavits regarding the procedure followed and details of the rejection of claims.”
Although the petitioners have no longer been pressing for the court to assess the constitutionality of the FRA, on Thursday, 12 September, the apex court said that it would hear arguments on this issue, in addition to assessing whether or not due process had been followed in the procedures which had seen millions of claims rejected.
The judges also allowed all the requests for impleadment by various adivasi and forest dweller organisations, academics and conservationists who wanted to defend the FRA. The judges issued notice on requests by these intervenors for state governments to stop reviewing rejections of claims at this time, and for the Centre to provide funds to the Forest Survey of India to conduct its survey on encroachments.
Rejecting the petitioners’ requests for an urgent hearing, the court gave the Centre and state governments four weeks’ time to reply and supply data as required.
An interesting development in the case on 12 September was that the Wildlife Trust of India, one of the lead petitioners in the case, applied to withdraw itself from this case. The court admitted the application, but has not made a decision on this yet.
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