NEW DELHI: “Elephants have the first right on the forest,” declared the Supreme Court just last month, ordering the demolition of a refinery wall stretched across an elephant corridor in a forest in Assam’s Golghat district.

A fornight ago the same Supreme Court ordered the eviction of as many as 12 lakh or 1.2 million people living and working in India’s forests, whose limited claims to the land and its produce under the Forest Rights Act of 2006 have been rejected by state government officials.

The court was hearing a petition filed in 2008 by Praveen Bhargav of Wildlife First (registered near Bangalore), Kishore Rithe of the Nature Conservation Society (Amravati), and Harshwardhan Dhanwatey of the Tiger Research and Conservation Trust (Nagpur).

Many of those whose FRA claims were rejected have not filed appeals. They were to be evicted before the next hearing of the case on July 27 – five months, whereas going by most estimates a reasonable appeals process would take longer.

Taking note of this, the Supreme Court today stayed its February 13 order on a plea by the centre – several state governments have also filed for review – pending further information from the states on progress made in settling FRA claims.

In India the last round of mass evictions on this scale was in the early 2000s, and led to the passing of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act four years later.

What explains the contradiction between the Supreme Court’s treatment of elephants and people? What is the state trying to achieve by creating huge databases of officially legitimate citizens – as in the National Register of Citizens in Assam, Chief Justice Ranjan Gogoi’s home state – or officially legitimate adivasis (first residents) and other forest residents, whose rights to their land have only recently gained official recognition?

Why are state governments’ forest departments passing illegal orders – against the Union Ministry of Tribal Affairs’ advice – requiring satellite imagery and caste certificates from FRA claimants?

To better understand these dynamics, which go back at least to colonial times, here are extracts from two responses to the Supreme Court order of February 13.

Statement from the Forest Rights Alliance–Bhumi Adhikar Andolan

Supreme Court Verdict on FRA Continues Historic Injustices over Adivasis and Other Forest Dwelling Communities

The recent order of the Supreme Court… is in line with the sustained attack by the pro corporate and conservation lobby since enactment of the Act in 2006 in the name of public interest. By blocking the process of claiming and reclaiming of forest rights of the forest dwellers this order will make the process of implementation of FRA 2006 dysfunctional.

Forest Rights Alliance–Bhumi Adhikaar Andolan will appeal this order and will not be mute spectators to the spectre of terror to be unleashed in the forest areas. We urge political parties to oppose this and not fall victim to the malicious propaganda of the wild life groups and rather engage in effective implementation of FRA.

As the general elections approach, there is a need for open political debate on intentional non-implementation of FRA by the government agencies, in connivance with corporate forces and so-called wildlife protection groups.

As per the provisions of the Act under Section 12 the Gram Sabha has supreme power over a number of Committees, and their recommendations along with that of the Forest Rights Committees have precedence over the technical ‘rejections’ by the district and other committees. Other committees at Sub-Division or District level can only ask for reviewing these claims.

The Court seems to have overlooked this critical point. In the absence of the Union government’s lawyer in various hearings, the details and processes of recognition and rejection of claims has been overlooked, and the affidavits filed by the State governments have not been thoroughly discussed and looked into.

The absence of the government’s lawyer during the hearings only reinforces the predominance of colonial mindset against forest people in this legal process and how the government views their rights and welfare. This order, if followed, can become a pretext for forest officials to attack lakhs of forest dwellers across the country, preventing which was the very purpose for enacting the law.

This Act was enacted in order to remedy the historical injustice committed by the colonial rulers as well as after independence against the country's forest dwellers.

The last time country-wide evictions took place was in 2002-2004, by an order issued by the Ministry of Environment and Forests, under the Bharatiya Janata Party led National Democratic Alliance government, that too with a passing reference to a non-existent Supreme Court order of 23 November 2001, which gave the wrong impression that the evictions had been ordered by the Supreme Court to all the state and union territories…

Is another historic injustice about to be committed against them yet again?

At least two thirds of the country's forest lands are tribal lands under the Fifth Schedule of the Constitution. The implementation of this order will definitely see more unrest in various parts across India which will be leading to the impoverishment of the tribals and the other forest dwelling communities.

With this draconian order even the status of right holders, who have already received the rights will be endangered. In all probability they would also be attacked by Forest Department and by the mafias engaged by the companies.

The historic Kisan Long March to Mumbai undertaken by farmers and adivasis last year and happening even now, as we write this, also raised the large scale irregularities in the settlement of claims under FRA…

Forest Rights Alliance and Bhumi Adhikar Andolan… demand that the government issue an Ordinance in the larger interest of protecting rights of forest dwellers to stop any evictions in the name of implementing the Supreme Order and prevent attempts of further harassment.

Open Letter to BJP President Amit Shah from former IAS officer P.S.Krishnan

I am a retired IAS officer working for Social Justice for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and Educationally Backward Classes (SEdBCs), for the last more than seven decades, since before I entered the IAS, throughout my entire service in the IAS till my retirement as Secretary to Government of India in 1990 and continuing even now…

I am writing to you about the threat of eviction facing lakhs of STs. I am happy to note that you have advised BJP-ruled States to file Review Petitions on the Supreme Court order of 13 February 2019. While this is a positive step, I would like to bring to your kind notice and consideration the following points…

Even appeals in the Supreme Court against High Court judgments adversely affecting the legitimate interests of SCs, STs and SEdBCs tend to be prolonged on and on (as happened in the appeal of the MHRD against the Allahabad High Court judgment of April 7 2017 in the Vivekanand Tiwari case) leaving only the option of an Ordinance if reservation for the above classes and categories in faculty recruitments in higher educational institutions is to be saved…

The fact about the implementation of the “Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” (FRA) is that FRA has not been properly implemented in a large number of cases.

The natural presumption that the people of the STs, who live in and near forests and either cultivate or secure other benefits form forests, must have been doing so for a long time, unless the contrary is proved, the burden of proving the contrary being on those who challenge any claim, has not been followed in many cases.

In fact, this presumption is embedded in the FRA and its Preamble.

The FRA broke away from the wrong colonial tradition, which was also followed by the Governments of independent India till 2006, when the Act was passed.

Some members of the Forest Department at the Central and State levels could not reconcile themselves to the empowerment of the STs envisaged by this long-overdue Act and they have been trying to delay and weaken its implementation.

As a result, the claims of a large proportion of the STs have been rejected. In many cases, the rejections are on flimsy grounds and have not properly followed the process laid down by the Act.

A major part of the areas involved in rejections have been under the influence of those who propagate that it is not possible to secure the legitimate rights of the STs from the Governments at the Centre and States and armed revolt is the only course available to the people of the STs.

The people of the STs are not by nature inclined to violence. But, when they have been pushed to a corner and Governments have not been able to do their duty to them, they have come under the influence of the ideologues of the Gun.

It was in that background of extremist violence that this Act was enacted…

During the pendency of the Review Petition, which may take an unpredictably long time, the Damocles’ Sword of eviction will continue to hang over the heads of the STs, producing uncertainty, panic and resentment, reversing the limited gains achieved by Governments against extremist violence…

Keeping all these in view, what is required is decisive action, which will at one stroke resolve the problem. This has to be through the legislative route…

I suggest that the proposed Ordinance should have the following features:

(a) Staying of eviction of STs

(b) Ordering a review of all cases of rejection of the claims of the STs by a Committee in every State, headed by the Chief Minister, concerned Ministers and Secretaries and knowledgeable persons sincerely and constructively working for the legitimate rights of the STs, assisted by experts with the understanding and appreciation of the tribal situation and tribal rights, to review all rejections, giving real and due opportunity to tribal people, which was not done in many cases by the Divisional and District-level Committees, and to give remedial directions wherever necessary.

(c) Provision of an express presumption that members of the STs who are found, now or recently, to be cultivating or otherwise securing any benefit from the forests and other claims, must have been doing so since a long time, unless the contrary is provided, the burden of proving the contrary being cast on those who oppose their claims.

Forests are the natural habitats of STs. It was the rapacious colonial Government that created a dichotomy between forests and tribes, so that the colonial Government could exploit the forests and augment Governments’ income. This colonial distortion was continued by independent India’s Governments till recently…

There is a misconception that recognition of tribal rights will damage forests. This is untrue. It is only where tribals live that forests have survived. It is forests in non-tribal areas which have been destroyed and depleted.

The concern for environmental balance is legitimate. This and the tribals’ rights should be harmonized. This can be done in the following ways:

(a) STs, who are given individual or community pattas or documents recognizing their rights, can be organized with their informed consent to grow trees in these lands as required as required for environment protection. The usufruct from such trees should go to the STs.

(b) Since growing trees is a long-term process, taking years, in the interim period, till the usufruct of the trees becomes available for the tribal people, livelihood support should be provided to STs through the MGNREGA and other means.

Since you have taken interest in this important matter, I request you to kindly consider advising Government to take action along the above lines…