Case Analysis: - Wildlife First and Others v. Ministry of Forest and Environment and Ors.

2019 SCC OnLine SC 238

- By Aditya Swarup Singh and Shivangi Pandia
Introduction
The order of the Supreme Court issued on February 13 with respect to the claims of forest-
dwelling peoples in India — the Scheduled Tribes and Other Traditional Forest Dwellers — is a
case of the Supreme Court speaking against itself. In effect, the court has ordered the eviction of
lakhs of people whose claims as forest dwellers have been rejected under the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA. That
this order negates the claims of citizens under special protection of the Constitution, viz. the
Scheduled Tribes and other vulnerable communities already pushed by gross governmental
neglect precariously to the edge, is another matter altogether. The question in this case is to
analyze the responsibility of the Supreme Court in upholding constitutional claims and equal
citizenship regarding the rights of the most vulnerable community of this country.

Background:
1. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 popularly known as FRA is a law meant for recognizing pre-existing
forest rights only and is not a land distribution or settlement act in ordinary sense. Only
those people in actual occupation of forest land as on 13th December 2005 are eligible
as per this act. Further, people belonging to Other Traditional Forest Dwellers (OTFD)
category, who form the bulk of the claims, have to establish a continuous 75-year
occupation for eligibility.
2. After the enactment of the FRA in 2006, as per the September 2018 statement of MoTA,
a total of 42 lakh claims over forest lands including within pristine National Parks and
Sanctuaries were filed by tribal people and ‘Other Traditional Forest Dwellers’ (OTFD),
a nebulous category of people not defined in the Constitution.
3. An analysis of the said official data reveals that a total of 18,89,835 titles have been
granted and a massive 72,23,132 ha or 72,000 sq km of public forest land (almost the size
of Assam State) have been granted and converted to individual and community
ownership in bits and pieces across the country.
 4. While MoTA statements or any other documents do not provide exact data on actual
extent of forest land occupied by rejected claimants, the estimated area could be in excess
of 19 lakh ha by applying the average area of an approved individual claim till the period
of 2016-18.
5. Several independent agencies including the Saxena Committee appointed by MoTA
itself, TERI appointed by Maharashtra Government and Bhaskaracharya Institute of
Space Applications for Gujarat Government have already documented fresh clearing of
forest land after the 2005 cut-off date by satellite imagery analysis. Satellite imagery
evidence of forest encroachment / loss has been considered by the CAG as well and
accepted by the Supreme Court and High Courts in many other cases (like Godavarman
Case).
6. It was said that in order to protect National Parks and Sanctuaries, which are sensitive
habitats of highly endangered wildlife, and which occupy just less than 5 % of India’s
landscape, one salutary clause was included in the FRA. This provides for notification of
National Parks and Sanctuaries as Critical Wildlife Habitats from where people can be
resettled. Shockingly, even though over 72 lakh ha of forestland has been granted under
the FRA since 2008, not one hectare of Critical Wildlife Habitat has been notified as
yet.

Immediate History of the Forest Regulation Act

1. In 1990, the Ministry of Environment and Forest issued a set of six guidelines to deal
with disputes related to forest land and forest villages, but these were never implemented.
In February 2002, as part of the ongoing Godavarman case, the Supreme Court asked
state governments to declare the extent of encroachments. A Central Empowered
Committee constituted by the Court also issued draconian recommendations included
banning all future regularization, allowing for the possibility of ‘excessive use of force,
un-provoked firing, and atrocities punishable under the SC/ST Atrocities Act’ in the
process of eviction. Many states treated the Court’s request for statistics as a request for
action, and evictions started taking place across the country.  The current fear of evictions
in response to Supreme Court orders, therefore, comes with a sense of déjà vu.
 2. In response, a range of adivasi organisations and individuals came together to form the
Campaign for Survival and Dignity (henceforth Campaign); and sustained pressure from
both adivasi organizations and the Left ensured that the first Congress-led United
Progressive Alliance (UPA) regime passed the Act. It was also seen as a way of
countering Naxalism.
3. Like operation Green Haunt was launched by the UPA govt. back in 2008-09. Mr.
Chidambram who was the Home Minister at that time said that this operation was very
important in removing the naxalites from these tribal areas, especially from Chhattisgarh
and other places which comes under the Red Corridor and almost 1 lakh Para-military
were deployed in these areas. But this is very interesting to note that before this operation
was launched, many corporations were given license to operate coal mines and other
forest based industries in these areas only. It is also true that many Maoists groups mostly
backed by left wings are violently active in these areas but this is also a fact that many
tribal are wrongly prosecuted and are being killed by security personnel in the name of
Maoist who are basically opposing the govt. encroachment of forests and has created
these forest areas as one of the biggest and most violent battle field.

Facts of the present case

Parties Involved
Petitioner:
 Wildlife First; Wildlife Trust of India; Nature Conservation Society; Tiger Research and
Conservation Trust

Respondent:
 Ministry of Forest and Environment; Ministry of Tribal Affairs;

In 2008, soon after the FRA was passed, a range of conservation groups like Wildlife First,
Nature Conservation Society, Tiger Research and Conservation Trust (TRACT) as well as
former foresters  (Orissa Retired Forest Officers’ Association) and even ex-zamindars (T.N.S.
Murugadoss) filed cases in various High Courts across the country as well as in the Supreme
Court. They wanted the Act to be declared unconstitutional; claimed that FRA was beyond the
legislative competence of Parliament since land is a State issue; that satellite imagery should be
used as evidence of fresh encroachment; that FRA should not extend to sanctuaries and
National Parks, and especially, that FRA should not apply to Other Traditional Forest Dwellers
(OTFD). They also objected to the Ministry of Tribal Affairs (MoTA) being given
responsibility for implementing the Act as against the Ministry of Environment and Forests
(MoEF), a touching concern for the very institution under whose watch wildlife has suffered
and forests have degraded.
They said that the individuals seeking to be granted rights under the Act must be able to
demonstrate that they have been and continue to either
(i) reside on forests or forestland, or,
(ii) are dependent on forest produce for their livelihood.
Basically the Act recognizes two classes of persons who are eligible to claim rights under it:
 Forest Dwelling Scheduled Tribes
 Other Traditional Forest Dwellers (OTFDs) - communities who have been dependent on
forests for a minimum of 75 years.
One of the petitioners' main prayers was to seek the recovery of forest land encroached upon by
individuals who had their claims to land under the Forest Rights Act rejected.
There were a number of parties which were added in this case and also some of the applications
on the same issue were clubbed together. There were also some of the intervention applications
filled by the Wildlife First in numerous occasions for the speedy disposal.
- FRA to be struck down as unconstitutional
 that everyone, whose FRA claim had been rejected, was an “encroacher” who should be
evicted.
 to quash review of rejected claims under the FRA.

Issues

1. FRA to be struck down as unconstitutional

2. To quash the review of rejected claims under the FRA.
3. Everyone, whose FRA claim had been rejected, was an “encroacher” who should be
evicted.
4. The reluctance of Ministry of tribal affairs to intervene in the present case
Counter affidavit filed by the ministry of tribal affairs (MoTA)

1. They stated that the prayer for appointment of comptroller auditor general for evaluating
the implementation of St and OTFD (recognition of forest right) act, 2006 is dismissed as
the monitoring procedure has already been conducted under rule 10c of the forest right
rules.
2. the procedure for identification and removal of ineligible claimants is not provided under
the forest rights and as provided by article 300a of the constitution, only the existing
procedure followed by state would be applied and no committee constituted by court or
CAG can’t replace this.

SC Decision

 On 13 February 2019, the Supreme Court ordered States to evict all individuals who had
their claims rejected under the Act by 24 July 2019.
 Directed the Forest Survey of India to conduct a satellite survey and place on record
encroachment positions before and after evictions.
 Finally, it directed the Chief Secretaries of various States to submit affidavits explaining
why they had up until now failed to evict individuals, who had had their claims rejected.

Reasoning

 To conserve the forests this was a necessary step.

 And since their claim of the customary rights has been found ineligible, their stay was
considered as encroachment.

The Stay Order

- On 28 February, 2019, the Court placed a stay on its own order, directing States to submit
whether due process had been followed in rejecting claims.

The reasons of the stay:

- In most of the cases it has been found that the tribal communities were not informed of
the rejection orders of their claims.
 - It is also not clear whether the three tier monitoring committee constituted under the
scheduled tribes and traditional forest dwellers act, 2006 has followed the procedure
while evaluation.
- State governments have also not clarified what is the process that is to be followed after
the eviction orders have been passed.

Directions given:

- the chief secretaries of various state governments have been asked to submit the detailed
affidavits covering the following areas-
 total land covered by the STs, SCs, forest dwellers
 claims rejected (area concerned)
 no. of eviction orders given
- Along with the affidavit, they were asked to record the reasons for the rejection of claims,
provision of act under which the eviction order given and the competent authority that is
empowered to pass such orders.
- The chief secretary of the states were also asked to prepare a categorical list of the
persons and the land area they possess.

Now why was the order of the Supreme Court Criticized?

1. There may be some areas where the tribal area has not been evaluated properly and the
procedure has not been followed and tribals have been evicted without following the due
procedure of law.
2. another query raised was that whether the tribals given an opportunity to adduce the
evidence to prove their right over the land
3. There may be some areas where under the guise of other traditional forest dwellers, the
land may have been occupied by the industrialist and the same has not been pointed out.

Analysis

1. Aim of Forest Rights Act, 2006

Was to do away with the injustice caused by the forest officials’ powers provided by colonial
laws like Indian Forest Act that caused forced evictions for commercial capture, degradation,
pollution and overconsumption of biodiverse forests. Under the FRA, tribal and other
traditional forest dwellers can claim rights on forests they have customarily used. 

SC in the present case has summersaulted his own stance in jurisprudence of the rights of
tribals and forest dwellers. The court has disregarded its obligations to secure legal protection
from forced eviction, neither the Ministry of tribal affairs have provided any proofs for
legality and validity of such claim verifications.  Forest dwellers shall not be punished by
eviction for states’ inability to clarify the procedure as even the Supreme Court order
wonders if due “procedure” was “adopted for rejection orders/claims”. All forest rights
which are not yet claimed, also cultural and spiritual rights, provide sufficient ground to
prevent eviction like the Supreme Court in 2013 ordered.

2. Preservation of forests is assumed as challenging the tribal rights (relationship

between the tribal community and the preservation of forest areas)

The tribal constitute only 9% of India’s total population and about 60% of India’s biodiverse
forests have survived in areas where tribals live. They have contributed to the preservation
and regeneration of the forests by adapting their lives in that way. UN Convention on
Biological Diversity (Art 8(j) and 10(c)), makes a treaty obligation on India to respect the
rights of forest dwellers in order to preserve the bio diverse forests.

But the SCs order has presumed in the present case that the “preservation of forests” would
require forest dwellers to be evicted. FRA under section 3(i) provides that the tribals must be
secured of their rights and authority of sustainable use in their customary area where their
role is integral to the very survival and sustainability of the forests ecosystems.

 In Animal and Environmental Legal Defense Fund v Union of, India & Ors. (1997) 3
SCC 549 the Supreme Court held that: “while every attempt must be made to
preserve the fragile ecology of the forest area, and protect the Tiger Reserve, the right
of the tribals formerly living in the area to keep body and soul together must also
receive proper consideration ( page 553).
  Samatha vs. State of Andhra Pradesh & Ors. (1997) 8 SCC 191 this Hon'ble Court
has noted that agriculture is the only source of livelihood for the Scheduled Tribes
apart from collection and sale of minor forest produce to supplement their income.
Land is their most crucial resource for sustenance, social status, etc and the decision
so given has failed to consider such factors. Complete disregard has been given to the
basic human rights of tribals.
3. Triology between tribal rights, environment conservation and development.
 there is a triology, the tribals are devoid and denied the rights of property and then
there is right to environment is for everyone and another rights is the development.
Tribal people have neither resources nor the power to fight for their rights.