At least eight states have told the Supreme Court that due procedure under the law was not followed while deciding the claims of Forest Dwelling Scheduled Tribes (FDSTs) and Other Traditional Forest Dwellers (OTFDs) for forest land under the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act of 2006.
This has came to light in affidavits filed by the states in the Supreme Court, which had on February 13 ordered eviction of lakhs of FDSTs and OTFDs whose claims under the Act had been rejected.
The order had led to widespread concern, as the direction was likely to affect nearly 11 lakh people. Subsequently, the Union Tribal Affairs Ministry and Gujarat government approached the top court seeking modification of the order. Hearing this on February 28, the court stayed its February 13 order and asked states to file affidavits explaining how they went about processing the claims and whether the rejections were justified.
In their reply affidavits, the states of Assam, Bihar, Chhattisgarh. Jharkhand, Karnataka, Maharashtra, Tamil Nadu and Uttarakhand have stated that due procedure was not followed in many cases.
Assam said that in some of its districts, the procedure was duly followed in passing rejection orders and the reasons for this were communicated to the claimant. But in some other districts, the reasons for rejection were recorded only in the proceedings of the Sub Divisional Level Committee (SDLC) and District Level Committee (DLC), and no rejection order was passed. It added that a review process had been started to ensure that no genuine incumbent is deprived of their rights.
Admission may spell relief for claimants
The admission by some states about due procedure not being followed while deciding claims of FDSTs and OTFDs in respect of forest land validates many of the concerns about the methodology adopted. The revelation may also provide these communities the much needed window to request the Supreme Court to reconsider its February 13 order to evict all those whose claims have been rejected.
Under the 2006 Act, the claims are prepared by the village-level Forest Rights Committee (FRC) and then submitted to the Gram Sabha, which verifies then and submits them to the SDLC. After SDLC approval, it goes to the DLC for final decision.
Bihar’s affidavit said that it had claims under the Act from only 9 of 38 districts and in these, the due procedure did not appear to have been followed in totality.
Jharkhand stated that it has launched a review process, and the absence of records in many cases was making things difficult.
In Karnataka, review has found that most of the cases were rejected without giving proper opportunity for adducing evidence and without following the principles of natural justice, without passing individual orders and without recording the reasons for such rejection.
About 25 states and Union territories have so far filed their affidavits in response to the SC direction. Eleven of these states have undertaken review of the rejected claims.
At least 10 states have also asked for extension of time to complete the review process. While Jharkhand has sought time till July 2020, Karnataka wants another 18 months and West Bengal till December end this year.
Seeking modification of the February 13 order, Solicitor General Tushar Mehta, appearing for the the Tribal Affairs Ministry, told the bench that on January 29, 2016, the court had asked states to furnish data regarding number of claims rejected and action taken thereafter. Following this order, he said, the Centre had written to states on February 5, 2016, to place the complete information before the court. In another communication to the states dated June 29, 2018, the ministry noted that various issues that arose in implementation of the Act, including high rejection of claims, non-communication of rejection orders, lack of reasons in the order and frivolous objections, Mehta added.
In response to the direction, some states had filed data on rejection of claims. “However, the said data did not provide the details of rejection as was requested by the applicant in its letter dated 25.2.2016,” the ministry submitted, adding that it was based on this data that the court passed the February 13 order.
As a consequence, “a large number of tribal and other forest dwellers would be liable to be evicted by the state governments without observance of due process of law”, the ministry said.
The Centre said that under the 2006 Act, “the rejection of a claim does not ipso facto lead to eviction of a tribal”. It added that the legislation was a “beneficial” one “and deserves to be construed liberally in favour of the FDSTs and OTFDs” who the government said “are extremely poor and illiterate people and not well informed of their rights and procedure under the Act”.