THE MATHEMATICS OF ILLEGALITY: RIGHTS, CLAIMS AND THE INJUSTICE OF EVICTION

On February 13th,2019, The Supreme Court passed an order which called for the eviction of claims for forest rights that were rejected. The order quite strongly worded, repeatedly states the following on forest rights claims across seventeen states:

“in the cases where claims have been rejected and have attained finality, whether eviction has been ordered and possession has been taken or not.  Let full status be disclosed in the affidavit.  It is further directed that the cases in which the orders have attained finality, let eviction be made forthwith.  In case of non-compliance of this order, the same shall be viewed seriously.”

The logic seems quite straight-forward, claims once rejected are grounds for eviction. Yet, there is a lot more that needs to be unpacked here and this is where the data plays a key role in understanding the mathematics of illegality or the data that supports the unjust narrative of eviction. Numbers can tell different stories and the data used by the petitioners seems to exaggerate the extent of forest land supposedly “lost” to Individual Forest Rights[1] (IFR). Let me take a moment here to provide a few alternative narratives that numbers can support.

The Abysmal Recognition of Community Forest Rights (CFR)

The FRA, at its core is about reconfiguring the forest governance paradigm which has been the source of injustice to forest-dwelling communities. The Indian Forest Act,1927 (IFA) continues to subsist along with the Forest Rights Act,2006. This matters as the IFA provides wide discretionary powers to the forest department to demarcate boundaries, settle rights and even arrest forest-dwelling communities for the use of resources. CFR rights within the law provide an alternative imagination of forest governance, where local communities have the right to govern, conserve and manage these forests based on their knowledge of the landscape. The law as the petitioner’s claim is not a land distribution law but rather a law that decentralizes decision making on the questions of conservation and management of our forests. The potential of this right has not been realized, in a report on the tenth anniversary of this progressive law, the Community Forest Rights-Learning and Advocacy (CFR-LA) group released a report titled ‘Promise and Performance’. In this the estimate was that a mere 3% of the CFR potential was realized. This data, shows us that the ethos of the law in democratizing forest governance seems a distant dream. While it is easy for conservation organizations like the petitioners to claim the extent of forest land lost to IFR rights, they have not made sincere efforts to engage with the opportunity the law offers to work with local communities in conserving our forests. The barrier for the recognition of CFR rights as the report identifies is the local forest bureaucracy which is afraid to lose control over vast tracts of forests. The hierarchy remains and the potential for reconfiguring our forest governance structure remains a distant dream.

Forest Offences and Criminalization of Rights

As an environmental lawyer supporting the Gujjar community in the Sariska Tiger Reserve, I encountered many stories from the local community where they were arrested by the forest department for accessing forest resources or grazing their cattle. These were rights recognized under the Forest Rights Act,2006 but the Indian Forest Act,1927 enabled the forest department to continue to arrest local communities. While it is quite easy to argue that communities living within these areas are the problem, the everyday violence that communities face at the hands of the forest department is a lived experience that needs to be accounted for. The data on forest offences tells us a very different narrative of this everyday violence. The recent data on environmental crimes by the National Crime Records Bureau shows us that of the 4732 environmental crimes as of 2016, forest and wildlife offences form a whopping 96% of the cases. This is skewed as pollution related crimes form a mere 3% of the data. The scale of everyday violence in the assertion of legitimate rights can be seen that despite ten years of the FRA being in existence, there has been no reduction in the crimes being recorded. This is evidence of the lack of recognition of community forest resource rights, or the set of rights that recognize the rights of these communities to forest resources like fuelwood.

Forest Diversion

The petitioners claim that 72000 Sq. km of forest land has been “lost” to individual forest rights. The source of this figure is yet to be traced, the Ministry of Tribal Affairs (MoTA) data as of November,2018 states that 42,82,379.27 acres has been distributed through IFRs. While this is considerably less as opposed to what the press statement indicates. It is important to note, that this is not diversion or loss of forest land but rather land which communities have been using for subsistence agriculture and habitation, this land is inalienable. The nature of forest land does not change, except that communities now have the right to subsist on tiny parcels of forest land. Forest-dwelling communities have historically been subject to legal regimes that have never recognized the security of tenure. This is a key distinction that one needs to keep in mind, FRA recognizes their security of tenure and does not recognize their right to ownership. Thus, it is not a land distribution law but a law that seeks to correct the historic injustice of insecurity of tenure.

The real statistic that we need to be collectively worried about is, forest diversion for industrial activities. As far as the data from 2016 shows, of 15000 sq. km of forest land diverted, 14000 sq. km was for industrial projects. The NDA government has given wildlife clearance for 65% of the projects. These massive tracts of forest land being diverted for industrial purposes is the crux of the forest diversion question. The Gram Sabha or village assembly consent requirement under the Forest Rights Act,2006 is a shield against forest diversion, yet this provision is seldom implemented and is instead further diluted. In 2018, the Ministry of Environment, Forest and Climate Change in an effort to fast-track the forest clearance process, has stated that the requirement of Gram Sabha consent will be done away with at the initial stage of forest diversion. This move will increase the pace at which our forests are being diverted and it is this form of forest diversion on which our mathematical or statistical gaze should fall.

Rejection of Forest Rights Claims

The data on the rejection of forest rights claims by the Ministry of Tribal Affairs is schematic. Its records claim which have been rejected at any stage of the appeal process. Raza Kazmi in his note clearly articulates that the perception of rejection derived from MoTA data can result in large scale collateral damage, he estimates 30 lakh and that is no small number. If claims are still going through the appeal process, they might be reflected as rejected. The mathematics of illegality continue to be fuzzy. A study by the Rights and Resources Initiative found that only 5% of land is legally held by forest-dwelling communities. A more relevant statistic that this report shows, is that between May 2015 to April,2016 79% of the claims for IFR are rejected. The statistics show us that the scale of forest land under IFR is quite small and the rate of rejection extremely high. If the SC follows through with this order, these numbers show us the scale of injustice. Lastly, forest rights claim in many instances are rejected due to a mere technicality or lack of evidence. The statistics do not reveal how many claims have been wrongfully rejected or stuck in the appeals process. The mathematics of illegality gloss over these details and frame the narrative to fit the paradigm of gross injustice and exclusion.

Displacement

The last statistic I would like to focus on is displacement because of large scale development projects. A report by MoTA in 2014 revealed that 40.9% of the 21.3 million people who have been displaced between 1951 to 1990 have been forest dwelling communities. They have borne the brunt of the neoliberal development model and exclusionary conservation. Add to this figure, 1.8 million families who are likely to be evicted because of this order accompanied with those who will be displaced by infrastructure, mining and other activities. This is the scale of historic and ongoing injustice.

Conclusion

Numbers can tell different stories, the mathematics of illegality the original petitioners seek to focus on is a narrow one. In this blog I articulate the mathematics and statistics of injustice and not illegality. It depends on which narrative one seeks to string with numbers, the numbers I think we need to focus on are:

  1. Only 3% of CFR potential has been realized;
  2. 96% of environmental crimes are forest offences, the scale of criminalizing rights;
  3. 93% of forest land diverted is for industrial projects;
  4. 79% of IFR claims were rejected between 2015-2016; and
  5. 40.9% of communities displaced by development are forest dwelling communities.

As the Supreme Court hears this case tomorrow let’s hope that the mathematics of injustice define the deliberations and not the fuzzy mathematics of illegality.

 

 

[1] Sec 3 (1) (a) of the Forest Rights Act,2006.

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