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International law "set aside": SC order on Forest Rights Act to "trigger" forced eviction

Counterview Desk
In a strong reaction, one of the top-most international NGOs, Amnesty International, has termed the recent Supreme Court ruling of Forest Rights Act (FRA) as “devastating”, warning, this could render over a million indigenous people homeless. A statement issued by Amnesty International’s India office in Bangalore says that India is party to a number of international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which prohibit forced evictions.
Thus, it states, the UN Committee on Economic, Social and Cultural Rights defines a forced evictions as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

Text of the statement:

Responding to a ruling by India’s Supreme Court ordering several state governments to evict indigenous people whose claims over their traditional lands have been rejected, Aakar Patel of Amnesty India said:
“This ruling is a body blow to Adivasi rights in India. It would be unconscionable for Adivasi people to be evicted from their homes and lands merely because their claims were rejected in a process that is known to be severely flawed.
“Many civil society organizations, including Amnesty India, have pointed out for years that the Forest Rights Act is poorly implemented. Adivasi people claiming legal recognition of their rights over their traditional lands often have to face corruption, overly bureaucratic procedures, and government apathy. State governments have themselves admitted that claims are often incorrectly rejected.
“Even where claims have been rightly rejected, the government must consider alternatives to evictions. The Forest Rights Act was enacted to correct the historical injustice faced by Adivasi communities in India. But this ruling, if implemented, could itself lead to catastrophic consequences.
“It is also outrageous that the central government did not adequately defend the Forest Rights Act at the hearings before the Supreme Court, and did not present its lawyers on February 13, when the order was passed. The government has abjectly failed in its duty to respect and protect Adivasi rights.
“Forced evictions are explicitly prohibited under international human rights law and standards. The government must ensure that they explore all feasible alternatives and conduct genuine consultations with people who could be affected. No one should be rendered homeless or vulnerable to other human rights violations because of an eviction.”
Background
The Supreme Court was hearing petitions filed by wildlife NGOs who contend that the Forest Rights Act has led to deforestation and encroachment of forests. The Court directed the state governments of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, Tamil Nadu, Telangana,Tripura, Uttarakhand, Uttar Pradesh and West Bengal to explain why they had not evicted people whose claims under the Forests Rights Act had been rejected. Over 1.12 million forest rights claims have been rejected in these states.
The Court also directed the governments of these states – and of Goa, Gujarat and Himachal Pradesh, which have not yet provided claim rejection numbers – to evict people whose claims had been rejected, on or before the next hearing of the case, scheduled on 24 July 2019. The order was passed on 13 February, but was published on the Court’s website only on 20 February.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of forest rights) Act, popularly called the Forest Rights Act, was enacted in 2006. It recognizes the customary rights of forest-dwelling Scheduled Tribes and other ‘traditional forest-dwellers’ to land and other resources. Members of these communities can claim individual rights over forest land they depend on or have made cultivable. Communities can also file for rights over common property resources, including community or village forests, religious and cultural sites, and water bodies.
India is party to a number of international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which prohibit forced evictions.
The UN Committee on Economic, Social and Cultural Rights defines a forced evictions as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”
Forced evictions constitute gross violations of a range of internationally recognised human rights, including the human rights to adequate housing, food, water, health, education, work, security of the person, security of the home, freedom from cruel, inhuman and degrading treatment, and freedom of movement.
The UN Committee on Economic, Social and Cultural Rights has emphasized that evictions may be carried out only as a last resort once all feasible alternatives have been explored and only after appropriate procedural and legal safeguards are in place.
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Govt of India indifference

A well-known forest rights organization, Campaign for Survival and Dignity (CSD), in a statement on similar lines, believes that things wouldn’t have come to such a pass in case the Government had taken an active stand in the Supreme Court. Text of the statement:
The Supreme Court’s February 13 order (linked here) in a case challenging the Forest Rights Act, which was published yesterday evening, is a major blow to the struggle of tribals and forest dwellers for justice and to the homes, lands and livelihoods of millions of our poorest people.
The Central government -- for the fourth time in a row -- chose not to argue at all in the Court. As no other party can speak effectively in defense of a law, the version of the petitioners – forest officials, ex-zamindars and a handful of wildlife NGOs – was hence taken to be the truth. In fact their petition is not in accordance with facts, law or conservation, and several of India’s top environmentalists and scientists have condemned their petition.
The Supreme Court’s order directs various State governments to report on the status of people’s claims for their traditional rights over lands, forest and forest resources under the Forest Rights Act, and – for some States – goes on to state that claimants whose rejections have “attained finality” should now be evicted.
The fact is that numerous official and independent reports have confirmed that huge numbers of claims have been wrongly rejected and that forest officials, in particular, have a track record of illegally preventing people’s rights from being recognized. Both State and Central governments have repeatedly recognised this – but the Central government chose not to inform the Court of this basic fact.
The Act contains no clause for eviction of rejected claimants, and in fact section 4(5) specifically prohibits eviction until the process of implementation is fully complete in an area. But this order can become a pretext for forest officials to attack lakhs of forest dwellers across the country. This Act was enacted in order to remedy the historical injustice committed by the British and post-independence governments, who seized forest lands without respecting people’s rights. Two thirds of this country’s forests are in areas that constitutionally belong to tribals under the Fifth Schedule of the Constitution. Is another historic injustice about to be committed against tribals and other forest dwellers?
We, and we believe all other organisations, parties and movements interested in justice, will:
  • seek to have this order reviewed or modified in accordance with law,
  • expose the Central government’s collusion with big companies and forest officials against forest dwellers; 
  • fight to ensure that all governments and parties defend the legal rights of tribals and forest dwellers, and 
  • fight against any effort to use this order to justify illegal evictions or other atrocities against forest dwellers. 

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