How to cheat forest dwellers of their rights (and enable mining)

Every year, come October, Gokul Ekka celebrates Karma Puja, a festival of the Oraon tribe, during which the community worships the Karma tree. Then, through the year, whenever any tree in the forest bears flowers, he collects the first flowers to bloom and offers them in prayer to his ancestors. In May, he and fellow Oraons gather Mahua flowers to make wine, which they sell. After this, they celebrate Sarhul Yatra, a night of music and dance and Mahua wine.

Ekka is an Adivasi resident of the village of Ghoghar, in Balishankara tehsil of Sundargarh, one of the districts of Odisha where the most mining is carried out. His religious and cultural practices clearly indicate that he is a member of a tribal community. If that did not suffice, he also has a certificate to prove it. Called a “Form of Caste Certificate” and issued by Balishankara’s tehsildar in 1985, it states that Ekka “belongs to the Oram sub tribe, which is recorded as Schedule Tribe under the Constitution Schedule Tribe Order, 1950”.

This gives Ekka some rights over forest land, as laid down in the Schedule Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, also known as the Forest Rights Act, or the FRA.

According to this act, a member of a Scheduled Tribe who has been residing in and using a piece of forest land since 2005, but does not have formal legal rights over it, is entitled to a land title, or patta, over it. Non-tribal communities that live in forests and depend on them for their livelihood, who are known as Other Traditional Forest Dwellers, or OTFD, can also avail of these rights – though they must prove that they have been residing on the forest land for three generations. (In the administration of the law, this is interpreted as 75 years.) Under the law, not just individuals, but communities of forest dwellers can also avail of rights to use forest land.

The Forest Rights Act, or FRA, was introduced to undo what it described as “historical injustice” done to India’s forest-dwelling communities.

Under a British-era law called the Indian Forest Act, introduced in 1927, huge swathes of habited land were notified as Reserve or Protected Forest, without considering whether longtime residents had any rights over them, effectively turning them into “encroachers”. The FRA sought to give legal recognition to the rights of these individuals and communities over this land.

For an individual to avail of these rights, they need to file a claim at a gram sabha level committee, the first of the three committees created under the act to assess claims. If this committee passes a claim, it moves to the sub-divisional level committee, and then finally to the district level committee. After all three committees approve of the claim, the individual’s right over the land is legally recognised, and they are issued a title to it.

But after Ekka filed the claim for this legal title around ten years ago, he received no word from the government whatsoever.

This is particularly surprising because claims under the FRA are supposed to have been subjected to careful scrutiny over the past few years. This scrutiny followed a widely criticised 2019 Supreme Court order – in the course of hearing a case challenging the validity of the FRA, the court ordered the eviction of all forest dwellers whose claims had been rejected until then. According to data that states shared with the court, this came to a total of 13 lakh people.

Governments at the central and state levels realised that the fallout of such a sweeping order could be disastrous – not least because legal processes had not been followed in issuing many of these rejections. At meetings with the Union tribal affairs ministry in the months that followed, many states committed to reviewing all the rejected claims in their territories. This included Odisha, which has the second-highest tribal population after Madhya Pradesh, and was, therefore, a crucial state when it came to the implementation of the FRA.

In Sundargarh district, Scroll.in accessed government files with data on claims that had been rejected after this review. Ekka’s claim was in these files – indicating not only that the government had rejected his original claim without informing him, but had rejected it again after a review, and had still not informed him. The first he heard of the rejections was when Scroll.in met him to ask about them.

The basis for the rejection of Ekka’s claim is demonstrably false. The files state that Ekka is an Other Traditional Forest Dweller – though he has proof that he is Adivasi. It states as justification for the rejection: “Lack of sufficient evidence for occupation of forest land for 75 years.”

But Ekka argues that even by the requirements of the OTFD category, he should be entitled to claim rights over the land.

“My father, my grandfather and my ancestors before him have all lived in this village,” he told Scroll.in. “My family has been cultivating the four-acre plot for generations.”

The rejection of Ekka’s claim is far from unique in Odisha. Scroll.in also accessed data from the minutes of meetings, and monthly progress reports on the implementation of the FRA across the state, from Odisha’s Scheduled Tribe & Scheduled Caste Development, Minorities & Backward Classes Welfare Department, the nodal authority for the implementation of the law in the state.

The data shows that as of the end of March 2020, when restrictions on people’s movement were first imposed in the country owing to the pandemic, the number of rejections in the state after review stood at 9,345. Between March 2020, when the government imposed the first Covid-19 related lockdown, to July 2021, when the lockdown in the aftermath of the second wave of the pandemic was lifted, Odisha rejected around 80,000 individual forest rights claims.

Most of these rejections were made in the state’s mining districts, like Sundargarh, Keonjhar, Sambalpur, Jajpur, Anugul, Koraput and Nayagarh. (Gajapati, which is not a mining district, was an outlier, with the highest number of rejections.)

In numerous instances that Scroll.in investigated, these rejections were flawed or violated processes laid down by the FRA. In some, like Ekka’s case, the grounds for rejection were erroneous. In others, claimants were not informed of the rejections, denying them their right under the FRA to appeal the decision. These wrongful rejections are telling of how the Forest Rights Act has failed to achieve its goal.

The failure is even more stark in some cases that Scroll.in investigated, where land that forest dwellers had once cultivated, and over which they had claimed rights, had been taken over by mining companies.

“You have come now after 10 years!” said 45-year-old Konta Naik in Topadihi block, Keonjhar district.

Naik wasn’t informed of the rejection of his claim, which he filed around ten years ago – since then, the land had been taken over by the Guali iron-ore mine, owned by the Odisha Mining Corporation. “What do you want now?” Naik added. “My land is gone!”

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The Forest Rights Act wasn’t the first law to seek to settle the rights of forest dwellers. The colonial-era Indian Forest Act had also laid down a procedure to settle these rights ahead of the notification of forested areas. This involved asking individuals and communities to submit claims they had over land that they used for activities such as cultivation or grazing. These claims were then evaluated by forest settlement officers. If they were deemed valid, those areas were removed from the proposed area to be notified as forest land.

But in practice, this process was almost never followed, as several experts, such as Madhav Gadgil and Ramachandra Guha, have noted. Instead, vast swathes of land were literally fenced off across the country, taking them out of the reach of people who had been relying on them for generations – without settling their rights as required under the IFA.

This process continued after Independence, as many states issued fresh notifications for creating reserve forests under this act, and fenced off more land without settling the rights of residents. This has resulted in large tracts of forest land across the country that are technically not under the forest department yet, but are not accessible to forest dwellers either. In the seven states of Maharashtra, Telangana, Andhra Pradesh, Odisha, Karnataka, Jharkhand and Madhya Pradesh, the area of such ambiguous forests is over 7 million hectares.

The issue remained unsettled for many decades. In 1990, in an attempt to resolve it, the environment ministry issued directions to the states to identify people who had been occupying forest land, and grant them legal rights over the land.

But the states did not follow through on these instructions. Matters came to a head after 2002, when the Supreme Court, in the TN Godavarman case, issued an order asking the environment ministry to identify the area of encroached land across the country. The environment ministry of the Atal Bihari Vajpayee-led National Democratic Alliance government responded by acting far beyond the scope of the order, and starting an eviction drive across the country.

“Our estimate is that more than 1.5 lakh households lost their homes,” said Shankar Gopalakrishnan, a member of the Campaign for Survival and Dignity, an umbrella body that spearheaded protests against the government.

“Among this were the brutal eviction drives, like in Assam, where elephants where used to destroy villages, and in Madhya Pradesh where villages were burnt,” he added.

In one instance in the latter state, “a pregnant woman was dragged out of the house so that it could be demolished.”

After the 2004 parliamentary elections, when the United Progress Alliance came to power, the country saw a dramatic shift in forest governance discourse. “This became an election issue in 2004, and when the UPA government came to power, it brought in the Forest Rights Act,” Gopalakrishnan said.

Under the provisions of the FRA, a forest dweller seeking to get legal recognition over their land, had to produce two pieces of evidence to prove that they had been using the land in question since before 2005 (or for the last 75 years in the case of OTFD). The admissible evidence ranged from government-issued identification, such as voters’ cards, to the formal statement of a village elder that the individual’s claim was valid.

But not everyone agreed that the FRA was a desirable move – many wildlife activists argued that it would lead to the destruction of forests. In 2008, wildlife conservation organisations such as the Wildlife Conservation Trust and the Wildlife Society of Odisha, along with some former forest department bureaucrats, moved the Supreme Court, challenging the constitutional validity of the act.

The case dragged on for years. It was in the course of hearing it that the Supreme Court on February 13, 2019, ordered states to evict all forest dwellers whose claims had already been rejected under the act.

After the order was issued, the Narendra-Modi-led government faced strong criticism for not putting up a sufficiently robust defence of the rights of forest dwellers.

According to activists, the government’s lawyers did not “say a word in court for the last four hearings”.

Following this, that same month, the Ministry of Tribal Affairs moved the court, seeking a stay on the order, arguing that not all the claims that had been rejected had gone through the legal procedure prescribed by the act for rejections. These massive lapses, which could have led to the evictions of lakhs of people, had the potential to hurt the Bharatiya Janata Party in elections that were due later that year in major tribal states like Jharkhand and Odisha.

On February 28, the court granted a stay on its own order, and asked the government to submit information before it on the process that was being followed in settling the rights of forest dwellers.

In the first half of 2019, in meetings with the Union tribal affairs ministry, many states admitted that they had not followed due process under the law in rejecting these hundreds of thousands of claims. They had, for instance, failed to communicate the rejections and the reasons for them to many claimants. Several states assured the Union tribal affairs ministry that they would review all rejected claims.

Among them was Odisha, which filed an affidavit in the Supreme Court in July 2019, stating that it would undertake such a review and give those whose claims had been rejected a chance to prove their case.

In the affidavit, the state had told the court that it needed time till March 2020 to review 1,84,690 rejected claims. Most of these rejections – around 69% – were at the sub-divisional level and had to be reviewed by the district level committee.

But by August 2021, of all the claims that had been reviewed, Odisha had rejected 89,701 and approved a mere 865. It was the only state in the country that rejected people’s claims under the FRA during the pandemic, when people did not have the mobility they would need to visit government offices, file appeals and appear before committees. Among these rejections were those of people like Ekka and Konta, whose claims had been wrongfully rejected.

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I visited two mining districts of northern Odisha, Keonjhar and Sundargarh, in late March, to meet people whose claims had been rejected, and investigate whether the state had followed legal procedures in issuing the rejections.

Keonjhar and Sundargarh are among the districts of Odisha with the highest revenue from minerals. Keonjhar lies just across the iron-ore-rich region of Saranda forest, of Jharkhand’s West Singhbhum district. The saal trees of the forest, as well as the mineral ores from the region, spill over into Keonjhar, where around 60 companies extract around 55 million tons of iron ore annually, according to the District Mineral Fund. Sundargarh lies next to the coal-rich Raigad district of Chhattisgarh, and excavates around 13 million tons of coal annually.

In Sundargarh, I visited the district’s Integrated Tribal Development Authority or ITDA, the nodal body at the district level that oversees the implementation of the FRA.

In an effort to make the process of implementing the FRA more efficient, the Odisha ST & SC Development, Minorities & Backward Classes Welfare Department had a few months earlier ordered district-level implementation authorities to create Excel files of all rejected claims organised by tehsil, block, gram panchayat and village. The files also mention the claimant’s name, and the khatiyan and plot numbers of the land over which a title is sought. (Khatiyan refers to a number assigned to a patch of land that has several plots within it.) Further, the files include information about the area of each piece of land under consideration, and the reason for the claim’s rejection.

When I asked the officials at the authority for this data, I was told that I could look at it and note down some details, but that if I wanted the entire file, I would have to file an RTI application.

It was in the few rows of the Excel sheet that I was shown that I saw Ekka’s name. When I visited Ghoghar village to speak with him, I also asked residents of the village about other names that I had seen from my brief scan of the Excel sheet – at least four other individuals from Ghoghar, who residents told me were Adivasi, had had their claims rejected after being wrongfully categorised as non-tribal.

In Brahdema village, around 50 km from Ghoghar, Raghu Karketta’s claim has been rejected on other specious grounds. The village, which is completely surrounded by saal trees, has around 300 houses, none of them cemented. Adivasis and Dalits comprise 93% of the village’s population.

Karketta’s grandfather came to the area when he was a child. “My grandfather, came here when his sister was married here,” he said. “He cleared a patch of five acres and started cultivating it. This must have been around the time of Independence. I still use the land to grow paddy.”

According to the record at the ITDA office, the rejection of Karketta’s claim was based on a blatant contradiction. The column listing the nature of land over which he claimed rights notes that it is “reserve forests”. A few columns later, under the reason for rejection, the document states that the land in question is not forest land. The latter assertion, though inaccurate in this instance, would imply that an individual was an encroacher on government property.

“I haven’t received any information on this,” Karketta said. “I filed the claim some 10 years ago and since then I don’t know what has happened. Will I get the land title now?”

Despite not communicating rejections to claimants, in the Supreme Court, the Odisha government had affected a tone of generosity. It stated in an affidavit to the court in July 2019 that “in many cases the poor forest dwellers are not filing appeal petitions”, and that, therefore, the state government would treat all rejected claims as being appealed. And yet, during the reviews, the government repeated the same violations that it had made in the first round – specifically, not following laid-down procedure, and issuing rejections under erroneous grounds.

At the ITDA office in March 2022, I found a stack of rejection letters from the District Level Committee that had remained unsent.

The letters were dated April 20, 2021. Even if the administration had sent the letters, they would have reached just before or during the lockdown in the state during the second wave of Covid-19 – a lockdown that stretched from May 5 to September 1.

Under the act, the district-level committee’s decision can be appealed before the state-level committee, in Bhubaneshwar. Claimants must appear in person before the committee – which would have been impossible during the lockdown.

Other data also indicated that a large number of rejections were issued during the lockdown period.

The Sundargarh district administration rejected a total of 7,602 claims between April 14 and July 2021, according to the details in the minutes that Scroll.in accessed of a review meeting of FRA implementation held by the state’s Scheduled Tribe and Scheduled Caste department on 12 August, 2021. These were part of a total of 17,617 claims that were rejected by the state during this period. In the mineral-rich district of Jharsuguda, adjoining Sundargarh, it rejected 4,724 claims, and in the southern Odisha district of Kandhamal, rich in coal and bauxite, it rejected 2,419 claims.

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The red dust in Keonjhar sets it apart from Sundargarh. The red comes from the seams of iron ore in the earth, while in Sundargarh, the coal has cast everything in black. But what is common in both districts is the light-green foliage of the saal forest in full flush, dotted with the dull red of the palash in bloom, and the fragrance of drying white flowers of mahua in the verandas of houses.

Also similar is the denial of peoples’ rights through wrongfully rejected FRA claims.

According to the Odisha government’s Directorate of Economics and Statistics, Keonjhar generates the highest revenue from mining of all the state’s districts. On the day I visited the area, trucks lined both sides of the mines because of an all-India strike organised by trade union associations.

From an individual involved with FRA work in the state, Scroll.in accessed the Excel sheet of rejected claims in Barbil tehsil of Keonjhar, a major mining area. The Excel sheet recorded the names of the people whose claims were rejected after the review, along with details like the names of their villages and the khatiyan and plot numbers of the lands over which they were claiming rights.

Handibhanga is one of the villages in the Excel sheet and is near a mangananese and iron ore mine owned by a company called Kashvi International Power Limited. To reach the village, one has to use a road near the mine, where the constant plying of heavy trucks has created ditches big enough to topple motorcycles and immobilise small cars.

Most of the residents of Handibhanga do odd jobs at these mines, but cultivate paddy on nearby forest land for their own consumption. Thirty-year-old Sunil Gagrai is one of them.

Gagrai had applied for a patta under the FRA around ten years ago, but he was never informed of the outcome of that claim. Then in May 20, 2019, just three days before the results of the 2019 general elections and the state assembly elections were announced, he received a letter from the sub-divisional committee that was responsible for assessing FRA claims from his village. The letter informed him that his claim had been rejected and that he had to appear before the committee at the sub-collector’s office to produce any evidence he had to support his case.

Gagrai, busy with collecting Mahua flowers on the day I met him, showed me the letter. Although the letter mentioned that his claim was rejected, it did not say what the reason was for the rejection. Under the provisions of FRA, a claimant has to be informed about the rejection, as well as the reason for it, so that it can be appealed with relevant proof.

What happened at the sub-collector’s left him infuriated. “There were around 30 people from Handibhanga and there were people from other villages too,” he said.

“We reached, spending our own money, and there, one official announced that all of our claims had been rejected because the land we had claimed was not forest land,” he continued. “I asked the official how that could be, and he told me to go home.”

It seems that the officials had made no effort to cross-check the khatiyan and plot numbers of the land claimed by Gagrai and others, with the state government’s own land records.

The Excel sheet for Barbil tehsil shows that the claims of 20 people in Handibhanga – including Gagrai – were rejected on the ground that the area they sought rights over was not forest land. I cross-checked the khatiyan and plot numbers (34 and 363, respectively) listed in the Excel sheet of the land over which Gagrai sought the recognition of his rights, against data on Bhulekh Odisha, the state government’s official land record website. I found that that patch of land was, in fact, categorised as “Village Forest” – a category of forest over which FRA claims are admissible.

I then cross-checked all the land record details in the Excel sheet, of 574 people in the 22 villages of Barbil tehsil whose claims had been rejected, with the information on Bhulekh Odisha. Of these, 430 had been rejected on the grounds that they had not occupied forest land. I found that, barring 59 people, everyone else had correctly made their claims on pieces of land that were classified as forest.

The ITDA project administrator in Keonjhar, Bijan Kumar Thamba, however maintained that his department had followed all procedures.

“We have been reviewing all claims carefully and have been following the law,” he said. “We sent letters to the claimants whose claims were rejected and gave them a chance of presenting their case, and only after that we rejected the claims.”

I told him about the discrepancies I had found in Handhibhanga, such as that claimants had not been informed of the reasons for rejections, and that many rejections were based on the erroneous categorisation of land, He insisted that these had to be clerical errors, resulting from the fact that the number of claims that were reviewed was in thousands.

“The policy is still that if someone is not satisfied, they can appeal against it or file a fresh claim,” he said.

But appealing would be impossible given that the people of Handibhanga only received oral, and not written, verdicts in response to their claims. For them to appeal, they would need written letters of rejection, stating the reasons for rejection.

Scroll.in also emailed questions to the principal secretary of Odisha’s Scheduled Tribe and Scheduled Caste department, but had not received any response at the time of publishing.

Around 50 km from Handibhanga, also within Barbil tehsil, lie Nuagaon and Topadihi villages, right next to the Guali iron-ore mine. According to the Excel sheet, 27 claims have been rejected in Nuagaon and 10 claims have been rejected in Topadihi, including that of Konta Naik. The claims were filed around 10 years ago. People do not know what happened to their claims on paper, but on the ground, they have seen the land being taken away from them.

“The mine has eaten my land,” said Babulal Munda, a resident of Nuagaon, whose claim has been rejected.

Like with Ekka, instead of learning of his rejected claim from the ITDA office in Keonjhar, stationed some 50 km away, in a manner that would allow him the opportunity to appeal, he was hearing of it for the first time from a journalist from 1,500 km away.

In 2002, the Supreme Court’s order in the Godavarman case, which asked the government to identify encroached land, was followed by evictions by the NDA government. After the court’s 2019 order of evictions, forest dwellers were supposedly protected by the FRA, which had been introduced in the intervening period. But the widespread violations of process, in Odisha at least, indicate that the legal protection of the FRA may not have amounted to much on the ground.

This reporting is made possible with support from Report for the World, an initiative of The GroundTruth Project.