NEW DELHI―The Narendra Modi government violated the fundamental right to life of tribals by not defending their interests before the Supreme Court during the hearings of a controversial case that will most certainly lead to the displacement of at least 10 lakh forest dwellers, senior lawyer and former legal consultant to the Ministry of Tribal Affairs (MOTA) Shomona Khanna said.
Khanna, who was a legal consultant to the MoTA and worked on this case as well as multiple other matters from July 2013 till July 2017, told HuffPost India that the case pertains to a law that enforces the fundamental right to life of millions of forest dwellers in the country. The state, she feels, violates such rights in two ways: through acts of commission and acts of omission. “In this case, I feel, what the Ministry Of Tribal Affairs and the Central government have done, is an act of omission. Not turning up in court, not arguing the matter is an act of omission and is equally reprehensible. It is a very old legal principle. When you are duty bound to do something and you don’t do it, that’s an act of omission,” she explained.
The senior lawyer, who has assisted the Modi government for several years in legal matters, said that till the time she was working for the tribal affairs ministry, she saw it strongly defend the law. “I was part of the team and the team put up a strong dissent along with the ministry itself. The Ministry was perfectly on board giving us hearing by hearing instructions regularly,” she recalled. When asked then what led to this failure in court, Khanna said, “That you can ask them. I am not on the team now so I don’t know what instructions the ministry is giving but definitely the performance of the ministry’s lawyers inside the courtroom has been far from satisfactory because they didn’t say anything.”
A response from the MOTA was not immediately available. This report will be updated if and when the ministry responds.
In an order passed on February 13, the Apex Court directed twenty one states to evict tribals and other traditional forest dwellers whose claims over land titles under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, better known as the Forest Rights Act, were rejected. The landmark Act, passed in 2006 to undo the “historic injustice” to the tribals and other traditional forest dwellers, recognises their rights over forest land and other resources which have been a source of their livelihood for centuries.
The court’s directions came in response to a bunch of petitions filed in 2008 by wildlife groups and former forest officials. Initially, they challenged the constitutionality of the law soon after it became operational in December 2007 in different high courts. According to Khanna, these petitions were all “cut and paste versions of each other saying the same things”. In 2008, she said, all the petitions were clubbed and brought to the SC at the initiative of the tribal affairs ministry since it wanted to contest the petitions strongly and defend the law.
Apart from the MoTA, the Ministry of Environment, Forests and Climate Change as well as 21 state governments are also party to the case and thus answerable to the Apex Court.
But the February 13 order, the text of which was uploaded on the Supreme Court website only on Wednesday, shows the issue has now become one of encroachment on forest land by people whose claims to the pattas (land parcels) have been denied by the forest department. “Where has this issue come from? How is it that in a writ petition challenging the constitutionality of the act you are suddenly coming into the implementation (of the law itself)?” Khanna wondered. This does not imply, however, that the plea to scrap the law itself has been discarded.
She also had a strong criticism about the SC order. “This order is completely incorrect in law because it proceeds on the basis that an order of rejection of the forest rights claim is somehow an eviction order; it conflates the two.” She cited Article 300 A of the Indian constitution according to which no person can be deprived of their property without due process established by law. “If you listen to it carefully, it reflects the language of Article 21 which is the Right To Life. Right To Life provision also uses the same language that no person shall be deprived of their right to life without due process of law,” Khanna argued.
When asked what could this due process look like? She explained that, “If you want to remove an encroachment from a government land, forest lands are government lands, then you follow the procedure that is there in the Indian Forest Act or in the Wildlife Protection Act or in the Public Premises and Unauthorised Occupants Act.” But the SC order does not ask for any of these procedures to be followed. Thus, she said, “How can you say that the person who has filed a claim and that claim has been rejected, therefore the rejection order is an eviction order? From which law has this come? I don’t know and I can’t understand this judgement.”
Khanna, though, blames the ministry and not the three judge bench of Justice Arun Mishra, Justice Navin Sinha and Justice Indira Banerjee which passed the controversial order. “There’s no one else to tell them the other side of the story. MOTA has not argued its case at all. In matters of this nature, there won’t just be two sides of the story. There will be multiple sides to the story. So the tribal rights organisations were also in court but they were also not given a chance to argue,” Khanna noted.
The consequence of this, the former panel lawyer for the Modi government said, is that in the Supreme Court, “we have now two opposing judgements on the forest rights act.” One is the 13th February order and the other is the landmark judgement in the Niyamgiri case which was widely praised for protecting tribal rights.