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UN experts object to GoI move to 'reinforce' trend of prosecution, eviction of tribals

Counterview Desk
In a report sent to the Government of India, three United Nations (UN) special rapporteurs, expressing "concerns" over the failure to ensure "adequate" implementation of the India Forest Rights Act (FRA), have regretted that the Government of India has not cared to reply their previous communications on this.
Pointing out that the special rapporteur on the right to adequate housing had only recently raised following her visit to India "concerns about forced evictions, displacement in rural areas and housing discrimination of tribes", the report recalls, "She had called for a national moratorium on forced evictions."
Prepared by Leilani Farha special rapporteur on adequate housing; Victoria Tauli-Corpuz, special rapporteur on the rights of indigenous peoples; and Cecilia Jimenez-Damary, special rapporteur on the human rights of internally displaced persons, the report also raises "alarm" that the proposed amendments to the Indian Forest Act of 1927.
 If endorsed and adopted, the amendments "would significantly increase the power and discretion vested in forest officials to govern areas declared as forest lands", they insist.
Sent to the GoI for necessary measures, and dated June 17, but made public this week, ahead of the next Supreme Court hearing on FRA, scheduled for September 12, the special rapporteurs say, the amendments would only "reinforce a trend of summary arrests and prosecution and eviction of forest dwellers".

Excerpts:

Scheduled tribes and forest dwelling peoples are indigenous peoples protected by the Constitution. They have distinct spiritual and traditional customs and an ancestral relationship to the land and forests resources on which they have depended for many generations. Indigenous peoples are also integral to the survival and sustainability of the forest ecosystem in India.
Some sixty per cent of all forests in India are located within tribal territories. While scheduled tribes and forest dwellers have historically faced evictions and displacements as a result of non-recognition of their rights to their lands and territories, the Forest Rights Act, enacted in 2006 provided an opportunity for these tribes to secure their rights to cultivate and occupy on the forest lands they have customarily used.
A significant number of Forest rights claims prepared under the Forest Rights Act of 2006 have reportedly been summarily rejected without following due process. First, the rejection rate is very high and raises some concerns in itself.
According to a status report of the Ministry of Tribal Affairs, only 45% of individual claims and 50% of community claims were approved as of April 2018. The statistics found in the Supreme Court Order of February 13, 2019 show in a number of States some high rejection rate, reaching 75% for example in Uttar Pradesh.
Second, indigenous peoples face challenges in preparing and submitting their claims, as the process was not designed in a manner that would make it accessible to the extremely poor and sometimes illiterate populations affected.
The populations are, in addition, not well informed of their rights and of the applicable procedures. For example, gathering proof of living on the land for three generations, which is required for Other Traditional Forest Dwellers, may prove extremely difficult.
For those claimants who have managed to submit a claim, it is reported that they were not systematically informed of the status of their claims, and often were not notified when their claims were rejected, thus denying them the opportunity for appeal.
A 2014 report by the High Level Committee on Socio-Economic Health and Education Status of Tribal Communities highlighted that claims filed under the Forest Rights Act were being rejected without assigning any reasons, or based on wrong interpretation of the definition of “Other Traditional Forest Dwellers”.
The same report indicates claimants are not being informed of their rights to file an appeal and do not receive any kind of assistance to support them in doing so.
A draft law proposing amendments to the 1927 India Forest Act would significantly increase the policing and discretionary powers of forest-officers against local communities. The proposed amendments provide for indemnity of forest-officers using fire arms to prevent any forest offence and specifically protects forest-officers against prosecution, unless they were previously sanctioned by the state government.
The amendments also propose that anyone believed to have attempted to contravene or abet the contravention of the law will be deemed to be in violation of the law. In addition, the amendments provide that any person in possession, custody or control of forest lands or forest produce shall be presumed guilty of encroachment until they can prove they are in lawful possession of the said forest land or forest produce.
We are deeply concerned with the serious impact on the lives, culture, lands, territories and security of the millions of tribal persons affected by the pending Supreme Court’s order to implement the eviction notices, which would cause massive displacement. We are equally concerned about the risk of violence that may result if such order is implemented.
Massive evictions in India, also by virtue of a Supreme Court order, took place between 2002 and 2004 affecting some 300,000 households and resulted in numerous cases of violence, deaths and protests in forested areas.
We are gravely concerned at the prospect that millions of forest dwellers may lose access to their habitat, livelihoods and spiritual culture as a result of the failure to adequately implement the forest rights claim process.
We believe that passing the Forest Rights Act was a significant step forward in recognizing the rights of scheduled tribes and other traditional forest dwelling peoples and safeguarding them from any more displacements or evictions.
Our concern, which was already raised in previous communications, lies however in the lack of implementation of the Forest Rights Act, including with regards the necessity for transparency of the process and for free prior informed consent before displacement or eviction, and the necessity for adequate redress and compensation.
Massive evictions in India, also by virtue of a Supreme Court order, took place between 2002 and 2004 affecting some 300,000 households and resulted in numerous cases of violence
Gaps in implementation of the Forest Rights Act are also leading to an alienation of tribal peoples and their village assemblies (Gram Sabha) in decisions that are directly affecting them, as the procedure set out in the Act is reportedly not respected. We therefore urge Government to take the necessary actions to protect these scheduled tribes and traditional forest dwellers, and uphold the spirit of the Forest Rights Act.
In addition, this situation causes alarm when set in the wider context of the proposed amendments to the Indian Forest Act of 1927, which, if endorsed and adopted, would significantly increase the power and discretion vested in forest officials to govern areas declared as forest lands, and reinforce a trend of summary arrests and prosecution and eviction of forest dwellers.
We are concerned that such increased discretionary powers for forest officials would indeed represent a threat to individual’s right to physical integrity and further reduce any prospect for tribal communities to fully use and enjoy the ancestral lands they are rightfully entitled to.
The Forest Rights Act recognizes the role of tribal communities in maintaining the sustainable use, conserving the biodiversity and maintaining ecological balance in the forests, “thereby strengthening the conservation regime of the forests while ensuring livelihood and food security “.
The Act also acknowledges that “the forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and other traditional forest wellers who are integral to the very survival and sustainability of the forest ecosystem”.
These statements, embedded in national law, reflect clear commitments of your Excellency’s government to the protection and promotion of indigenous peoples rights, especially those espoused in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
As we continue to monitor and evaluate the developments of this situation, it is our responsibility under the mandates provided to us by the Human Rights Council, to seek to clarify the allegations of human rights violations brought to my attention. To this end, we would be grateful for your comments and observation on the following:
  1. Are the facts summarised above accurate? Please provide any necessary information or clarifications.
  2. Provide information on the measures taken by the Government to secure the tenure rights of the Scheduled Tribes and other Forest dwelling communities to the lands, territories and resources which they have traditionally owned, occupied or otherwise used and, specifically to ensure the legal recognition of those rights with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
  3. What actions are being undertaken to investigate the numerous claims of irregularities and illegalities in the processing of claims? How will the Government ensure that the rejected claims are investigated in a transparent, independent and impartial manner?
  4. Please describe to what extent consultation with the affected tribes and forest dwellers in the 21 States have taken place to ensure their free, prior and informed consent to any relocation before enforcing any evictions.
  5. Please also share details regarding the opportunities provided for public consultations and participation and ways in which public feedback and inputs were taken into consideration in the planning and decision making processes.
  6. Please describe if in this context any affordable, adequate and culturally appropriate housing alternatives or compensation have been offered to the affected communities within their ancestral lands ensuring security of tenure and access to livelihoods.
  7. What measures are in place to assist scheduled tribes and other traditional forest dwellers wishing to secure ownership of their ancestral land in complying with the procedure for filing claims under the Forest Rights Act? Please explain whether the affected tribes and traditional forest dwellers are able to appeal against the Supreme Court Order dated February 13, 2019. Please explain also the avenues available to them to access justice in relation to their right to ancestral land and housing.
While awaiting a reply, we urge that all necessary interim measures be taken to halt the alleged violations and prevent their reoccurrence and in the event that the investigations support or suggest the allegations to be correct, to ensure the accountability of any person responsible of the alleged violations.

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