No eviction of tribals without settlement of land claims: J. Arun Mishra (retd.)

Adivasi Image Courtesy:thehindubusinessline.com

National Human Rights Commission (NHRC) Chairperson Justice (retired) Arun Mishra has said that no Adivasi/tribal should be evicted without the settlement of his/her claim related to land rights, while chairing a webinar organised by the Commission with Human Rights Defenders and Civil Societies on human rights issues.

Another suggestion that he gave during the webinar held on July 29, was that the rehabilitation of displaced people due to development projects should be fully drawn out before the implementation of the project which should not merely include financial support.

It is noteworthy, that the same judge had delivered the controversial order (W.P Civ. 109 of 2008) on February 13, 2019, ordering for the eviction of over 11 lakh tribals and forest dwelling communities across several all states. The Bench which also consisted of Justices Navin Sinha and Indira Banerjee of the Supreme Court, had asked the authorities of 21 states to give affidavits explaining why evictions, wherever ordered, had not taken place.

The apex court had also asked some states to pass orders for eviction wherever the rejection of claims under the Forest Rights Act had taken place. The strongly worded order read, “In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court.” The court had directed that the evictions must be carried out by July, and also directed the Dehradun-based Forest Survey of India (FSI) to submit a satellite image-based report once the “encroachments” are removed.

But this order was stayed on February 28, 2019, after huge condemnation by Adivasi and forest dwellers’ movements, and forest rights activists. In its order, Justice Arun Mishra said, “At the present juncture there is likelihood of traditional Tribals being affected whose claims have been rejected. At the same time the question which is also of significance and which cannot be ignored and overlooked is that in the guise of and Other Traditional Forest Dwellers (OTFDs), the land is not in occupied by mighty people, industrialists and other persons who are not belonging to the aforesaid category. Let the State Governments also point out the category wise details of such incumbents who have been occupying these areas belonging to Scheduled Tribe category and OTFD category and such persons who cannot be treated as Tribals….However, till we examine all aforesaid aspects, we keep our order dated 13.02.2019 on hold so far as eviction is concerned.”

Even though the Bench stayed the exercise of the order, the fate of lakhs of tribals and forest dwelling communities remains uncertain due to such pronouncements.

CJP’s role

In August 2019, in response to the Supreme Court’s eviction order and subsequent stay, Adivasi human rights defenders Sokalo Gond and Nivada Rana had intervened in the same matter, backed by Citizens for Justice and Peace (CJP) along with All India Union of Forest Working People (AIUFWP). The intervention plea explained how the law is in statutory line with Schedules V (administration and control of Scheduled Areas), VI (administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram), and IX (contains a list of central and state laws which cannot be challenged in courts) of the Constitution.

Justice Arun Mishra’s order had triggered around 19 intervention applications, including this one that was successfully admitted by the Supreme Court in September, 2019. The two organisations have been actively campaigning for forest rights and Adivasis, who are subject to government apathy. Recently, CJP along with AIUFWP and Jagrit Adivasi Dalit Sangathan (JADS), organised an online press conference providing a platform to the Adivasi villagers of Madhya Pradesh’s Negaon-Jamniya village, who have had their houses destroyed and property looted by a mob. They were illegally evicted and had their homes demolished by a mob of people from neighbouring villages who appeared to operate with the blessings of the Forest Department and police officials present on the spot.

Even though Justice (retired) Mishra has now opined that traditional forest dwellers and Adivasis must not be evicted without settlement of their claims, and added emphasis on the need of more foundational rehabilitation plans, his ideas certainly do not align with his previous orders as a serving judge of the Supreme Court.

On August 31, 2020, a three-judge bench of the Supreme Court, also headed by him, had ordered the removal of nearly 48,000 slum dwellings around the 140-km of railway tracks in Delhi within three months with no “interference”, political or otherwise. (MC Mehta vs Union of India 1985).

This was in direct contravention of the landmark judgment in Olga Tellis v. Bombay Municipal Corporation (1985) that held that the right to shelter and livelihood is a facet of Article 21 of the Indian Constitution. The judgment in Olga Tellis was delivered by a five-judge bench, which the three-judge should have ought to follow but did not. In addition to this, the order did not provide details of alternative rehabilitation, etc and was passed in the middle of a pandemic against the most disadvantaged.