Forest Rights and the Great Nicobar Mega-Project: The case before the Calcutta High Court

What is the case before the Calcutta High Court?

In a PIL filed in 2024, Gupta has challenged the different sets of procedures followed under the Forest Rights Act, 2006, and orders issued thereunder, alleging that they are unlawful. Specifically, this includes the constitution of a sub-divisional level committee (SDLC) for Campbell Bay tehsil; the Gram Sabhas convened in Campbell Bay, Laxmi Nagar and Govind Nagar on August 12, 2022, and the resolutions passed consenting to forest diversion.

Further, the Recognition of Forest Rights (RoFR) certificate issued on August 18, 2022, by the Deputy Commissioner, Nicobar district, stating that all forest rights have been settled, has also been challenged. The plea contends that the Andaman and Nicobar Islands administration used “illegal” Gram Sabha resolutions on diversion of land for the project, the RoFR certificate and the ‘consent’ given during the SDLC meeting, to enable forest clearance from the environment ministry for the GNI project.

Before approaching the Calcutta HC, Gupta was one of the signatories of a representation made to the President of India regarding tribal rights and alleged procedural violations under the FRA, 2006. However, the representation had not evoked any response.

Why does the petition challenge the legality of the consent obtained under the FRA?

The core argument in the plea is that the entire process followed under the Forest Rights Act, 2006, claiming consent of tribals for the diversion of land for the project was vitiated and allegedly illegal, as it did not follow the norms laid down in the FRA, 2006. The plea alleges that not a single forest rights claim has been settled on the Great Nicobar Island.

Under the FRA, 2006, its rules and as per a 2009 order of the Ministry of Environment, Forest and Climate Change, diversion of forest land for a project must be preceded by the settling of forest rights claims.

The administration concerned must complete the process of identifying and settling forest rights claims. The Forest Rights Act recognises pre-existing rights of Scheduled Tribes and other forest dwellers, who have lived in the forests for at least three generations. These rights include individual and community rights, ranging from rights to habitation, cultivation, grazing, fishing, access, and collection and harvest of minor forest produce, to rights to conserve and manage forests and customary rights.

Pointing out specific alleged illegalities, the petition states that the sub-divisional committee, which examines resolutions of a Gram Sabha, did not follow the Rules under the FRA. At least two of the three SDLC members must belong to Scheduled Tribes, including one woman member. But the SDLC constituted by the island administration had only one Nicobarese member on it.

Second, the Gram Sabhas that purportedly gave consent were settler panchayats (Campbell Bay, Govind Nagar, and Laxmi Nagar) constituted under the Andaman and Nicobar Panchayat Regulation for non-tribal settlers. These resolutions pertained to the diversion of 166.10 sq km of land for the project, out of which 121.87 sq km is protected forest and 8.88 sq km is deemed forest.

These resolutions, the plea contends, have no legal standing, as the bodies in question were not Gram Sabhas of Scheduled Tribes or forest dwellers, as prescribed under the law. “…consent for diversion of forest land has to be given by those who have rights under the FRA, which have to be settled, and not by persons like government officers and non-tribals or non-forest dwellers who have no rights whatsoever under the FRA,” the plea states.

The plea also notes that there is no record available pertaining to a forest rights committee, which initiates the process of seeking claims under the FRA, before a Gram Sabha is convened.

The consent of the Nicobarese community, claimed through the chairperson of the tribal council, is also contested in the plea on the grounds that the chairperson cannot consent on behalf of the entire community. Moreover, in November 2022, the council chairman, along with its captains, revoked their consent. In the case of the Shompen tribe, which is largely an uncontacted group, their consent was obtained through an officer of the Andaman Adim Janjati Vikas Samiti (AAJVS), a government organisation, rather than from the Shompen themselves, the plea states.

What does the plea argue about the rights and protection of the particularly vulnerable Shompen tribe?

The plea states that three Shompen settlements, located within the proposed development area, including foraging and hunting regions which sustain the southern Shompen population on the GNI, will be “denuded and desecrated.” This, it is argued, will violate their rights to food, water and shelter by displacing their places of worship, forest groves used for horticulture and sources of safe, clean drinking water.

Citing the setting up of habitation for 330 ex-servicemen on the east coast of the island in 1972, the plea argued that this activity had disturbed Shompen habitation, and that they subsequently moved into the interior of the forests. The plea has also raised the question of whether the existing framework under the Forest Rights Act is sufficient for tribes like the Shompen, who are semi-nomadic hunter-gatherers. The Shompen, the plea argues, have a right to self-determination and to live as they deem fit, and thus their habitat cannot be taken away by the government.

“The Shompen do not read or write Hindi or English or Nicobarese or any other language used by the administration. They cannot understand the proposal of the respondent or consent to it. The process of settlement of rights and the surrendering of rights by giving consent to diversion of forests is alien to them,” the plea argues.