By Dr. Vandana Shiva
On February 13, 2019, the Supreme Court (SC) ordered the eviction of 1.1 million adivasis from their home, the forests, based on a petition filed by wildlife groups questioning the validity of the Forest Rights Act. The court had given states until July 27th to evict them. On February 28th, it stayed its order because of appeals.
The decision violates the foundations of India’s ecological civilisation, India’s Constitution, Provisions of the Panchayats (Extension to Scheduled Areas) Act (PESA) and the spirit of the Forest Rights Act because it is an attempt to convert the forest tribes into encroachers, and the conservers and defenders of forests into a threat to the conservation of the forests and its biodiversity. It robs millions of their constitutional rights, with large numbers of adivasis snatched of their birth-right to live in the forest, their home, their identity, and their sustenance.
In India, we have the 5th Schedule of India’s Constitution, along with many state laws, which affirms the non-alienability of tribal land as an elementary right. In 1996, India passed the PESA legislation to recognise that the tribals are self-organised sovereign communities and their gram sabhas are the highest competent authority on any decision related to their culture and resources. I have been a witness in what is now Chhattisgarh, as gram sabha after gram sabha voted against mines and industries to protect the forest and their forest culture.
The SC order undermines the FRA, which does not merely recognise the inalienable rights of the tribals, but is in fact an act for the protection of India’s ecological integrity and foundation of our civilisation.
In 2007, the Forest Rights Act was passed to recognise the rights of forest dwellers and correct the historic injustice of non-recognition of their rights. Being part of the expert group set up by the tribal ministry to draft the act, we were clear it was for recognition of the rights the tribals have as first people of the land. The state was not “giving” rights. Natural Rights are not given, they arise naturally from being part of Mother Earth. Natural Rights are ecological rights.
We were also clear that indigenous communities are organised as communities, not as individuals. For the tribals, the forest, the land, the rivers are commons, not private property. We also recognised through the act that adivasis are integral to the very survival and sustainability of the forest ecosystem. The integrity of the forest and rights of forest dwellers are non-separable.
The indigenous forest cultures and economies of tribals are based on the conservation, and sustainable and renewable use of biodiversity. Indigenous tribal economies are the highest example of sustainability, harmony with nature and her biodiversity.
As the Forest Rights Act states in its preamble:
“An Act to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded; to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land...
And whereas the forest rights on ancestral lands and their habitat were not adequately recognised 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 dwellers who are integral to the very survival and sustainability of the forest ecosystem.”
However, somewhere along the way in the implementation, recognition turned into a bureaucratic procedure of assigning rights, with large numbers of the adivasis robbed of their birth-right. As was said on twitter
“whatever its small flaws, the Forest Rights Act is a reminder that people are sovereign, not the state and its agencies. Of course, any such forward movement has a backlash – when power is besieged, it moves to protect itself.”
During a visit to tribal areas in Chhattisgarh to train tribals in organic farming, I asked how long they had been using chemicals. They informed me that when they got the individual title to land under the now distorted implementation of FRA based on individual rights, they were also given chemicals and hybrid seeds and encouraged to give up their sustainable practices based on biodiversity.
The distortions in the implementation of the act have transformed it from being an act that recognises the community rights of adivasis and protects the forests and its biodiversity as a commons, into a process for evicting the tribals from their homes and enclosing the forest commons to hand it over to mining and other interests whom the tribals have been resisting.The enclosure of the commons is being facilitated by destroying the integrity of community rights, and reducing them to adhoc rights of individuals concocted by a corrupt bureaucracy in connivance with greedy criminal corporations.
According to the Washington Post, in the past 30 years, the government has diverted 13,985 sq. km. (5,400 sq. miles) of forest land, the size of Connecticut, for industrial projects – many of which were opposed by the indigenous people.
The destruction of our forests does not merely uproot the tribals from their home, it also destroys the habitat of the tiger, the elephant, and all species which live in the forest. The destruction of forests is also a threat to everyone else, including those who live outside the forest. The destruction of the ecological space of wildlife is pushing wild animals into farms and villages, intensifying conflicts. In large areas famers are not able to farm because having lost their food and their home in the forest, wildlife is seeking food from agricultural lands.
Above all, forests are the source of our rivers and streams. And as my sisters of Chipko reminded us, forests give us soil, water and pure air.
Most significantly, forests are the very foundation of our ecological civilisation, our Aranya Sanskriti, based on Vasudhaiva Kutumbakam, the Earth as one family.
The assault on our forests, and the forest keepers, is an assault not just on the most vital ecosystems that sustain life, it is an assault on the very foundation of our civilisation.
Tagore described Indian civilisation as a forest civilisation founded on the values and creativity of our adivasis and the sages who went to the forest to live like adivasis.
In ‘The Religion of the Forest’, Tagore wrote about the influence that the forest dwellers of ancient India had on classical Indian literature. The forests are sources of water and the storehouses of a biodiversity that can teach us the lessons of democracy – leaving space for others while drawing sustenance from the common web of life. Tagore saw unity with nature as the highest stage of human evolution.
In his essay ‘Tapovan’ (Forest of Purity), Tagore writes: “Indian civilisation has been distinctive in locating its source of regeneration, material and intellectual, in the forest, not the city. India’s best ideas have come where man was in communion with trees and rivers and lakes, away from the crowds. The peace of the forest has helped the intellectual evolution of man. The culture of the forest has fueled the culture of Indian society. The culture that has arisen from the forest has been influenced by the diverse processes of renewal of life, which are always at play in the forest, varying from species to species, from season to season, in sight and sound and smell. The unifying principle of life in diversity, of democratic pluralism, thus became the principle of Indian civilisation.”
It is this unity in diversity that is the basis of both ecological sustainability and democracy. Diversity without unity becomes the source of conflict and contest. Unity without diversity becomes the ground for external control. This is true of both nature and culture. The forest is a unity in its diversity, and we are united with nature through our relationship with the forest.
In Tagore’s writings, the forest was not just the source of knowledge and freedom; it was the source of beauty and joy, of art and aesthetics, of harmony and perfection. It symbolised the universe.
Tagore started ‘Santiniketan’ as a forest university, where classes are held under trees, not in prisons of concrete. It is why, we at Navdanya have started the Earth University at the Navdanya Biodiversity farm in Doon Valley. We learn from nature and her biodiversity while we protect biodiversity.
In ‘The Religion of the Forest’, the poet says that our frame of mind “guides our attempts to establish relations with the universe either by conquest or by union, either through the cultivation of power or through that of sympathy.”
And the tribals are the foundation of our conservation, diversity, and unity-based civilisation.
In India, we connected the rights of the forest and the rights of people. Chipko was a movement to defend the forests from logging while defending the rights of women to water, fuel and fodder. I became a volunteer in Chipko in the early 1970s as a child of the forests of the Himalaya.
However, in the west, anthropocentrism rules, and there is a deep divide between nature and humans, which I have called “eco-apartheid “.
The colonising West treated forests as either “timber mines” or as “wastelands” (the Sundarban). In either case, the destruction of the natural forests and their biodiversity was legitimised for revenue collection, “lagaan”, the source of wealth for the empire. The wildlife were mere “trophies”, not sovereign species with their right to live in freedom and dignity. And tribals, as the Australian aboriginals, were defined into “fauna and flora”.
Fossil fuel-based industrialisation further devastated forests, ecosystems and the natural world. “Production” was separated from “conservation”. Production was increasingly based on fossil fuels and chemicals, which are leading to climate catastrophe and the sixth mass extinction. Bees, butterflies, beetles and other insects are disappearing in what has been called an “insectageddon”.
Instead of conservation being the very foundation of sustainable production and regeneration everywhere, it was restricted to some areas and a handful of species, even though all species have a right to life, all species and all biodiversity should be conserved for their intrinsic value and rights, because they are all essential to the web of life.
There are two paradigms of conservation. The first is based on our indigenous world view of non-separation, the recognition that we are all members of the earth family, and that the “economy is a fully owned subsidiary of ecology”. What I see as a paradigm of Earth Democracy is based on the rights of all beings, both the tribal and the tiger are part of the earth family. Both have coexisted and coevolved together over millennia in our forests. Both have to be protected to protect the forests, which in turn protect us from climate catastrophe and desertification.
The second is based on eco apartheid. Within the eco-apartheid paradigm, humans are outside nature, conservation of other species is based on uprooting people from the ecosystems they have protected. The “tiger” vs “tribal” conflict is thus artificially created. Within this paradigm, the forest, the tribal, the tiger, our rivers, will all disappear. Scientists have warned us that we are in the sixth mass extinction, and like the climate crisis, the extinction crisis is manmade. Its roots lie in the denial of the earth as living, and all species, including humans as members of the earth family.
The rights of the forest, of the trees and vegetation, of the tiger and the elephant, of the adivasis, are not rights given by the state. They are natural rights, they are non-alienable birth-rights. These rights of all members of the forest community, including the tribals, flow from the very fact of being born into the community of the earth. Denial of these natural rights by the state or courts doesn’t mean they have been extinguished.
The landmark Mabo Case (Mabo v Queensland No. 2) was a decision in the Australian Courts in 1992 which gave native title in Australia for the first time. “Native title” was described as the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants. This case pertained to the rights and interests of the Meriam people to their traditional land.
The main question that was framed in the case was: whether the rights of the indigenous people survived after the colonisation by the Crown. Justice Brennan in his judgement, answered: “Mere change in sovereignty does not extinguish native title to land.”
He quoted another case called Calder v. Attorney General of British Columbia where Justice Hall had rejected as “wholly wrong” “the proposition that after conquest or discovery, the native peoples have no rights at all except those subsequently granted or recognised by the conqueror or discoverer.
All of these instances reflect the idea that natural rights are ontological, ecological and biological. These ontological rights have always existed and will continue to exist. No human law or court can “create” these rights.
It can only affirm them. They exist de facto.
It is to reclaim the foundations of our ecological civilisation based on conservation of nature and biodiversity that a series of laws have been enacted. The FRA case is not just about tribals. It is a case of whether we will see ourselves as members of one earth family, respecting the rights of the last species and the last person to their ecological space.
This is why all Indians must rise in defense of tribals and the forests. The forests will live as long as the adivasis are there to protect and defend the forests. And India lives if her forests live and thrive.
On February 13, 2019, a three-judge bench of the Supreme Court headed by Justice Arun Mishra issued an extremely important order in WP 109 of 2008 to ensure protection of forests, which have been severely affected due to ineligible/bogus claimants under the Forest Rights Act (FRA). Such claimants continue to occupy a huge area of forestland, even within national parks and sanctuaries, though their claims have been rejected.
Wildlife First, along with Nature Conservation Society and Tiger Research and Conservation Trust, the petitioners in this matter, wish to present key facts regarding this case since there appears to be a lot of misunderstanding in the media on the latest Order of the Supreme Court.
Upon hearing Sr. Advocate Shyam Divan and AOR P. K. Manohar in great detail, and considering the magnitude of bogus claims and the never-ending process of re-verification, the Supreme Court passed an important Order containing the following key directions to 17 States. These States had filed affidavits admitting the quantum of rejected claims, which add up to 11, 91,327. The Order directs that:
“...The Chief Secretary shall ensure that where the rejection orders have been passed, eviction will be carried out on or before the next date of hearing. In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court...”
“...It is directed that where the verification/reverification/review process is pending, the concerned State shall do the needful within four months from today and report be submitted to this Court.
Let Forest Survey of India (FSI) make a satellite survey and place on record the encroachment positions and also state the positions after the eviction as far as possible.
Let the requisite affidavits be filed on or before 12-07-2019. List the matters on 24-07-2019”.
This makes it amply clear that the Supreme Court is presently focusing only on recovery of forest land from bogus claimants whose claims stand rejected. In other words, it has not directed any action in its 13-02-2019 Order against lakhs of claimants who have been granted titles over a whopping 72.23 lakh hectares of forest land as per the September 2018 official statement of Ministry of Tribal Affairs (MoTA).
Praveen Bhargav, for Wildlife First, Kishor Rithe, Nature Conservation Society and Harshwardhan Dhanwatey, Tiger Research and Conservation Trust.
Swati Thiagarajan, conservationist, journalist and television host suggests that: “If we really want our wildlife to survive, angering lakhs of people is not the way to go. It’s time a new model of conservation that also includes community rights and involvement is adopted. As somebody who lives in Southern Africa, let me give you a small example. Botswana wants to now open up its borders to trophy hunters and exercise a cull over its elephants. They want to build fences and prevent some elephants from coming in. Botswana gets the largest numbers of elephant moving through in Southern Africa. Botswana’s entire human population is around two million. They marginalised and abused the San (bushmen) and today they are confined to the Central Kalahari. After years of struggle they have won some of their hunting rights back. The Central Kalahari is awesome. The areas with the largest elephant populations are linked conservancies with local involvement and uninhabitable areas of the delta. It is the farmers and other vested interest groups who have issues with the elephants. But that’s two million people in the entire country and we are talking numbers of upwards of 20 million who are set to be displaced. So, there are some tricky challenges. The system is broken and needs a proper overhaul. We need sustainable habitat for the wildlife. We need connectivity corridors, we need contiguous spaces. These are a necessity for the survival of biodiversity. This is also the reality. But just in Maharashtra alone there are over 250 development and infrastructure projects coming up in all the corridors... it’s the policies and not people that are the problem. With sensitivity and joint effort shared spaces are very possible.
Sanjay Upadhyay’s article in The Print gives two clear suggestions on what could be done by the Supreme Court to make things right and clear the mess. “The Supreme Court needs to caution the states and dig a little deeper to understand the complexity of this historic legislation on at least two counts.
First, questioning the number of rejections that have been produced by the states and whether there is solid evidence to that effect or not. Often in a target-oriented and scheme-oriented country, numbers play a huge role. The god is in the details, and so is the devil.
Second, probing the number of appeals that are pending on both bogus claims as well as genuine claims at the appellate authorities under the Forest Rights Act. It is necessary that a powerful and equipped monitoring body is established as a special purpose vehicle under the aegis of the Supreme Court itself since the states have failed in doing so.”
He also says:
“The rejection of claim to a forest right over cultivation of an extent piece of forest land, or rejection due to technicalities of the form itself, or wrong interpretation by the sub-division level committee or the district level committee, or a non-proactive state-level monitoring committee should not leave a single genuine tribal family to be evicted. Because that would perhaps lead to another big ‘historical injustice’ that we won’t be able to amend.”
Debi Goenka, Executive Trustee, Conservation Action Trust suggests: “There are some points that people on both side of the divide must sit together and accept. 1. All encroachments proven to have taken place after the cut off date must be removed and the window for filing new claims should be closed. 2. Community rights should be prioritised over individual rights. 3. Critical Wildlife Habitats must be expeditiously notified 4. A far more effective mechanism needs to be put in place to improve the quality of life of tribals. Granting them rights over unproductive lands without any access to infrastructure will only lead to yet another form of injustice.”
Bittu Sahgal, Editor, Sanctuary Asia says: “There are good people on both sides of this unfortunate divide who would like not just to build bridges but to see justice done for genuine forest communities and the forests upon which they depend. I also believe that in the haste to be the ‘first to report’, gross miscommunications have ruled the roost, particularly in the social media, but also in print. One issue that seems very grey is that of individual rights Vs community rights. This is Central to the issue of justice and the survival of forests. False claims must be prevented from usurping lands that were once used sustainably by communities.
Another worry is the issue of landless people who would probably lose out if huge swatches of forest lands that once offered some sustenance were to be converted to tradable private property by way of pattas for powerful individuals. Meanwhile... I suggest that small attempts to stitch unity against the organised forest destruction by dams, mines, roads, etc. should be a good way for differing groups to sit and communicate around tables. Some kind of indisputable evidence by way of SatMap comparisons between 2006 and 2019 must undoubtedly be part of the dialogue. When this new deforestation is compared through overlay maps and satellite imagery of damage done by mines, dams, roads... and newly encroached farmlands... a real picture of cause and effect might emerge.
In my experience in the battle between bulls, calves are usually the ones most wounded. In this case the calf is the forest. And without forests, there can be no forest rights anyway.
Author:Dr. Vandana Shiva