The Forest Rights Act was enacted in 2006 by the first UPA Government. MoEF Jairam Ramesh, after lengthy bargainings and consultations with rights groups and NGOs, agreed to pass the bill, mostly out of electoral compulsions and as a means to check the rise of radical left forces among Adivasis. Corporations with direct business interests in the forests were opposed to the bill. So was the Forest Department that used to practically ‘own’ the forests till now, and various non-tribal ‘Wildlife NGOs’ who believe non-tribal elites have to save the animals from tribals. With this latest SC order, the Corporate-NGO-Forest department-Government nexus wins its decade-long legal crusade against the FRA. Siddhartha Dasgupta writes.

The Supreme Court has asked 17 states of this country to drive out 11 lakh adivasi families from the forests. According to some claims, the actual number of families staring at potential eviction is around 20 lakhs. The forest land claims that these families had filed, under the UPA introduced Forest Rights Act (FRA) have been rejected over time by various Governments. Of the 42 lakh title claims, 19,34,345 stood rejected as on September 2018, as per the Ministry of Tribal Affairs. A large number of the rejected claims were filed by people belonging to ‘Other Traditional Forest Dwellers’ (OTFD) category – people of non-tribal origin who live in or depend on forests. All these numbers are also highly contested because the State Governments do not have accurate information of every family that is living in the forests, and the actual number of families facing displacement could be more than these estimates.

The Union Government’s lawyers who were supposed to defend the Forest Rights Act did not show up for the February 13 hearing, leading a three-judge bench of Arun Mishra, Navin Sinha and Indira Banerjee to pass orders giving states till July 27 to evict tribals and other forest dwellers whose claims had been rejected and submit a report on it to the Supreme Court. The written order was released on February 20, 2019. Already over 56% of the Scheduled Tribes in India have been displaced due to development projects and forest conservation plans, according to estimates.

Historic strife between Adivasis and Urban India continues

These large communities of people have been living in these forests from much before any of today’s modern ruling systems were even born. With the advent of modernity, while most people formed villages in the plains and then cities and surrendered over time to these ideas, certain communities chose to remain in the forests. While modern human civilization has constantly waged wars against nature, it is these people who are the reason we still have any forest today. These are the people who have fought the first wars of independence against colonial rulers, in Bengal, Odisha, Madhya Pradesh, Manipur, Nagaland. These are the people who have consistently protested against Nehruvian India’s nationalist mega industrial plans, against the tyranny of the brutal Forest Department and its officials, and against the neoliberal economic onslaught that is destroying human beings and nature, both.

The British rulers enacted the Indian Forests Act in 1927, and with that for the first time in history, forests were brought under the ‘law’. It was at this moment that entire communities suddenly went from being ‘inhabitants’ to ‘illegal encroachers’. The British Government began punishing those who refused to leave the forests, through fines and imprisonment. The adivasis fought back for their homes, for the forests. That struggle is still going on, and is today perhaps more crucial than ever before.

Post 1947, newly independent India basically copy pasted the same colonial Forests Act. Thus, independence meant very little for the adivasis in India. Their struggle had to continue against the Indian rulers. These struggles of indigenous people began much before Mao Tse-Tung, or even Karl Marx was born. In an industrial age, this fight for self autonomy and self dignity also became a fight for protecting nature. Over time, these movements have been shaped by various political ideologies, such as Marxist, Environmentalist, nationalist, or even nativist in some cases.

Post 1990s, this movement had to deal with a new political force. The NGOs that sprung up across the tribal heartlands of particularly Central and Southern India. Mostly funded by big corporations or highly problematic international donor agencies such as Action Aid, or Aid et Action, or USAID, or DFID, etc., these NGOs became the service providing wing of the Government. After outsourcing the civil tasks of education, health service, infrastructure development to such NGOs, the Government concentrated on military actions, armed policing and on collaborating with big businesses eying the forest resources. Amazingly, these NGOs would again double up as the chief agencies for rehabilitating people who would be displaced by attacks from the armed forces and Government-backed militias.

Early days of the Forest Rights Act

The first UPA Government enacted the Forest Rights Act in 2006. Minister of Environment and Forests, Jairam Ramesh, after lengthy bargainings and consultations with rights groups and NGOs, agreed to pass the bill, mostly because of electoral compulsions and as a means to check the rise of radical left forces among the Adivasis. Corporations with direct business interests in the forests were opposed to the bill. So was the Forest Department that used to practically ‘own’ the forests till now, and various non-tribal ‘Wildlife NGOs’ who believe non-tribal elites have to save the animals from tribals. Several corporate-funded NGOs however jumped onto the bandwagon of implementing FRA across the country. Some of them had also been part of the process that led up to the enactment of the act.

For the Government and its NGO lackeys, FRA was mainly a mechanism to side-step the larger question of tribal autonomy over forests. For the movements that fought for and drafted the Act and pressed the UPA Government to pass it as a law, the FRA was finally the beginning of the recognition of Adivasis’ autonomy over the forests, and one step towards undoing the historical injustice on these people by the rulers of this country and its earlier colonial masters. The last comparable ‘legal’ administrative attempt at evicting adivasis from their forests en masse was in 2002, when the MoEF then had issued an order leading to large scale evictions of people. Elephants were taken to destroy adivasi villages, their fields were set on fire at many places. It was post this eviction drive that several movements pushed for enactment of an act like the FRA that would essentially redefine these people not as ‘encroachers’ but as original inhabitants of the forests. “The Government is in fact the biggest encroacher,” said Madhu Sarin, one of the drafters of the Act. On the one hand while the Constitution of India reserves tribal areas under Schedule V, providing them special protection, on the other two line notifications were used to overnight declare forests as ‘State owned’. It was in order to undo this historical injustice that something like the FRA was felt necessary.

Under the FRA, any adivasi who can prove her occupation of the land since before December 2005 would have to be granted land titles. For non-adivasis traditionally living in the forests (the so-called ‘Other Traditional Forest Dwellers’), they would have to prove occupation of the forest land for at least three generations as on 31st December 2015. Ownership meant for the first time in many of these communities, the idea of ‘private land’ took roots. Ownership of land also meant that adivasi land could now be kept mortgage in future, or sold and bought. The applicant would have to file a claim to a committee, constituted of forest department officials, headed by the District Collector. Ironically, many people used the fine receipts they had been served under the Indian Forests Act of 1927 to prove their claims to the land. The Forest Rights Act was opposed by various quarters – the corporations who wanted free access to tribal lands and resources, the forest ‘conservationists’ who believe it is the adivasis who are a threat to the forest and its wildlife, and sections of the adivasi movement itself which rejected the imposition of modern land ownership laws on adivasi societies which have a very different relationship with land and forest – a relationship of mutual coexistence and not of ownership. Fundamental contradictions between the tribal and non-tribal ways of looking at or ‘governing’ the forests can even be seen in the text of the Act itself. For instance, while Section 12 of the Act gives Gram Sabhas powers to reject the suggestions and recommendations of ‘expert committees’ when it comes to projects aimed at forest resources, the same Act on the other hand gives the non-tribal dominated District authorities the entitlement to reject adivasi title claims to begin with.

In any case, the process of getting formal rights to forest lands under FRA was so complicated that it was clear from the outset that most of the adivasi families living away from the towns, would not be able to pursue the process. Though some people did get “individual titles”, but the “community titles” – one of the strongest features of the FRA that tries to acknowledge community ownership of land and was seen as the biggest weapon against forceful land acquisition by the corporates, were almost never granted anywhere. All in all the FRA was an attempt at a compromise aimed at resolving the crisis of governance of adivasi communities, as far as the Indian state is concerned. Elements of such compromises are strewn throughout the body of the Act. On the one hand when Section 12 of the Act gives Gram Sabhas powers to reject the suggestions and recommendations of ‘expert committees’, elsewhere the same Act empowers the highly oppressive and ruthless Forest Bureaucracy together with the District administration to ‘reject’ the title claims filed under the Act. According to reports submitted by various states to the Supreme Court, a total of around 11,72,931 FRA claims have been rejected by them over the years. According to reports, 20% of these rejected claims are from 3 states – MP, Karnataka and Odisha.

Many of the FRA-implementing NGOs were ironically funded by some of the same companies that are also funding the FRA-opposing NGOs, such as the petitioners in this particular case. Militant adivasi movements such as those in Bastar, Maharashtra, Odisha, Telangana, Andhra Pradesh, Jharkhand, etc were branded as illegitimate by these networks, and FRA was projected as the only reasonable Constitutional way forward. Many of these NGOs and their bosses have had direct links with powerful political parties and their leaders. But still, turns out that after one and a half decades of their efforts of lobbying with the various Governments in power, and after gulping down hundreds of crores of rupees in the form of grants and donations, more than 11 lakh claims still remained rejected. At the height of FRA implementation drives, there also were reports of some of these NGOs illegally clearing out forests with the help of the adivasis, promising them rights to the cleared land, and ultimately getting claims filed under the name of the NGO members themselves, their relatives and friends, using forged documents.

It is because of the efforts of certain adivasi movements that this law emerged as the primary legal tool against forceful displacement and land acquisition in certain pockets. The forest produce movement in Gadchiroli, Maharashtra and the Niyamgiri movement against Vedanta are glorious examples. All these are instances where the FRA was used mainly as one of the instruments by a large mass movement that was taking up a wide range of political actions.

Backlash on the Act is as old as the Act itself

Forest officials and hardline conservationists have been filing PILs across various courts in the country to get the FRA struck down ever since the law was enacted. A total of at least 9 cases were filed. 6 of these cases were copy paste versions of each other filed in different courts by retired forest officials, wildlife NGOs like Wildlife Trust of India, Nature Conservation Society, Tiger Research and Conservation Trust, Wildlife First, etc., and in one case by an ex-zamindar. In January 2015, the Supreme Court transferred all the High Court cases to itself and eventually clubbed them into one. On February 19, the Supreme Court passed the judgment directing the states to drive out these adivasi families whose claims have been rejected. The Chief Secretaries of these states have been directed to finish this ‘cleansing’ of the forests by 12th July. Dehradun based Forest Survey of India have been asked by the court to track the implementation of this order through satellite imagery. Allegations have been raised that the Indian Government and its Ministry of Environment and Forest, headed by Dr. Harsh Vardhan, stayed silent through the last several hearings in this case, implying that the Government was already in agreement with the idea of en masse removal of adivasis from Indian forests.

The court or the Government, have not said anything about how to ‘rehabilitate’ such a huge number of people at one go, even assuming that such ‘rehabilitation’ is conceivable. The illegal and xenophobic project of driving out adivasis en masse from their own land that was witnessed during the Salwa Judum experiment in Bastar, has now been granted legal sanctity by the highest court of the land through this order. Faced with Salwa Judum atrocities, an estimated 3 lakh adivasis had fled from Bastar forests within a year.

The Anti-FRA Nexus

After Narendra Modi came to power backed by and for the corporate agenda, the pressures on the Act intensified. This also led to tussles between the environment ministry and the tribal welfare ministry. Last year, Ministry of Tribal Affairs (MoTA) told chief secretaries of states that it has noticed that state forest authorities move immediately to evict people whose claims under FRA are rejected, without waiting for a decision on review or appeal or allowing time to file an appeal. In February 2018, the National Commission for Scheduled Tribe wrote a letter to Ministry of Environment and Forest that any displacement of tribal from Protected Zones and Tiger Reserves under the Wild Life Act, violate the Forest Rights Acts and rights of the communities living there. Despite all of this, the corporate lobby in alliance with the Forest Department under the Environment Ministry and animal rights NGOs worked hand in glove to use the judiciary to gut the Act altogether. Key issues raised by the petitioners in the case include immediate removal of ‘forest dwellers’ who they termed as ‘encroachers’ who have filed ‘bogus claims’, and that the Forest Rights Act 2006 is in violation of the Indian Forest Act and Wild Life Protection Act and comes in the way of ‘management of forests’, and that the recognition of the Rights should only be decided by the officials and Gram Sabha must not have any power as it is an ‘unskilled body’.

One of the key petitioners in the case, an NGO called the Wildlife Trust of India (WTI) is funded by corporations such as Tata, Aircel, Oil and Natural Gas Corporation (ONGC), Oracle, Union Bank, etc. The Chairman of the WTI’s Board of Trustees is Prasad Menon who was earlier the Managing Director of Tata Power Company and Tata Chemicals. He is also in the Board of Directors of a manufacturing company called SKF India – Indian subsidiary of the Sweden-based SKF Group – whose Chairman had also served as the Chief Executive Officer and Managing Director of Tata Honeywell. These NGOs rarely raised their voice against encroachments by big corporations, including the Tatas, into Indian forests. The Tatas are one of the biggest stakeholders in the forests of Bastar, Jharkhand and Odisha and have a notorious history of attacks on adivasi communities, for example the shooting and killing of unarmed tribal protestors at Kalinganagar, Odisha in 2006. According to data from the environment ministry, since the enactment of the Forest Conservation Act 1980 nearly four decades ago, a total of about 15 lakh hectares of forest land has been already diverted for 27,144 development projects, including major mining and power generation projects that require large scale cutting down of forests. In 2005 for instance, then BJP government had signed a MoU with Tata Steel for a Rs 19,500-crore integrated steel plant in Lohandiguda area of Bastar district, whereby the Tatas, backed by the Government armed forces and illegal local militia, acquired 2,044 hectares of land from 10 villages by force. Faced with stiff resistance from the local adivasi forest villages, in 2016, Tata Steel had to announce that it was pulling out of Lohandiguda.

With this latest SC order, corporations such as the Tatas would finally breathe in relief. A PIL in which the petitioners had in fact questioned the Constitutional validity of the Forest Rights Act, somehow produced an eviction order using the same Act. Not a single State Government in the country had ever wanted to implement the Act. All of them conveniently sat on the deadlines and did nothing other than to illegally reject patta claims. Activists and mass organisers who were working on getting claims filed by the adivasis were hounded, attacked or wrongfully incarcerated. Mahesh Raut who was one of the activists falsely accused and jailed post the Bhima Koregaon Elgaar Manch 2017 and is still imprisoned at the Pune jail, was one such organiser with the Gadchiroli Forest Rights movement in Maharashtra and had no involvement in the Bhima Koregaon agitation. States like Jharkhand and Himachal Pradesh have refused to accept applications by Other Traditional Forest Dwellers. Gujarat told applicants to submit, along with other evidence, satellite images of the land to which they were staking claim. In the last 4 hearings of this case, the Government lawyer did not say anything in the Court. After the Additional Solicitor General PS Narasimha – who was representing the Union of India in this case – retired last October, Narendra Modi’s Government did not appoint any senior lawyer to head the team of Government lawyers. The matter was left to empanelled lawyers without giving them proper instructions. “They would attend, mark their attendance, but not say anything,” says this Scroll report. On the other hand, a total of more than 230 lawyers were on record as per the SC order copy, representing the petitioning NGOs and forest officials.

In Conclusion

As the current ruling regime continues to eat away and hollow out the Indian Constitution and its aspirations, through erasing legal protections for the dalit and adivasi population, through inverting of the idea of reservation on its head, through sabotaging elected Governments (like in Kashmir) and now openly threatening to engineer the biggest ever legally sanctioned mass displacement in the history of independent India, while it opens up the nation – its people and its environment – more than ever to ruthless corporate onslaught, it is time to raise certain fundamental questions.

The question for the Indian state – its legislators, armed forces, its bureaucracy and its judiciary – is how do it plan to negotiate with the massive resistance it is sure to encounter when it tries to implement its latest anti-adivasi crusade. Because there is no example in history where such a large number of people have taken things lying low and silently when an administration tries to evict them in such fashion. And perhaps the biggest question of all is, how long can the Indian state use its political gimmicks and tropes to justify its economic model run at the cost of blood and flesh of the adivasis, given the climate and environmental disaster such a model has triggered. This disaster is a reality and cannot be wished away either through ‘jumlas’ or by chest thumping nationalistic hate mongering. Nature and its fury do not care about people’s religion, caste or race. Because nature had nothing to do with these constructions no matter what our men-written scriptures would want us to believe.

The author is a political worker and independent journalist.

Feature image (an Adivasi settlement in Khammam district, Telangana): Author.