Arguments on February 28th 2019

On February 13th, the Supreme Court directed various States to evict an estimated one-million forest dwellers, who had their claims to forest land rejected. On Wednesday (27th), the Union had moved the court to place a stay on its order and the court had agreed to urgently hear the matter on Thursday, February 28th.

In today’s hearing, the court stayed the February 13th order which had directed eviction of Forest Dwellers whose forest rights claims had been rejected . It also directed the States to file affidavits by July 10th  detailing the procedure followed by the State authorities in rejecting the claims made by the forest dwellers under the 2006 Act.

A Bench comprising Justices Arun Misra, Navin Sinha, and M.R. Shah began by  questioning Solicitor General Mr. Tushar Mehta as to why the Ministry of Tribal Affairs had sought to modify the order at this stage, when the exercise for seeking details of the rejection of claims and the follow-up action taken by the States was undertaken by the court in 2016. Mr. Mehta admitted that the Central Government had committed certain errors. However, he emphasised that the eviction orders were resulting in a grave threat to the rights of the tribals and inhabitants of the forests and their liberties cannot be sacrificed on account of forest preservation and that the two must exist in harmony.

Mr. Colin Gonsalves also informed the court that in several cases, the rejection orders had been passed without giving any reasons for the same and the tribals concerned were not even aware of the appellant proceedings. Mr. Mehta also supported the submission pleading before the court that the Act had resulted in depriving poor and illiterate tribal people of the their homes without heeding the principles of natural justice. Further, he stressed that the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 did not envisage any provision for eviction if an individual’s claim for land was rejected.

The court took note of the fact that several claimants had been rejected without the delivery of speaking orders. Further, it noted that rejected claimants may not even possess the requisite documents.

The court directed the states to file detailed affidavits furnishing information as to whether the rejections were made after following due process, if there was adequate communication with the evictees at all stages, and whether there is acquiescence of the State-level Monitoring Committees which ensure that no tribal is displaced except in compliance with the formalities under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The affidavits must also disclose the modalities of the procedure of adjudication of these claims on forestland. Additionally cautioning that it must also be ensured under the guise of STs and OTFPs, forest land is not being occupied by other persons, the district authority must also submit details with respect to the same in the affidavit filed by the State.

Mr. Shyam Divan, appearing for the petitioners Wildlife First opposed the plea for stay by submitting that the order of the court dated 13.02.2019 would not impact the rights of those tribals who had already been granted pattas. He also submitted before the court that the challenge in the present case was also to the constitutionality of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The case was currently preceeding on the basis that the Act was constitutional and in the event that it was held to be unconstitutional, the States, in their affidavits must then also record the procedure that will be followed in the case of those whose claims for pattas are not acceptable. Mr. Divan further submitted that though the previous order dated 13.02.2019 has been kept in suspension, the direction that satellite images be produced, should still be carried out.