'Matter Requires Hearing": SC Posts Plea Against Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 After Diwali

The Supreme Court on Tuesday posted for hearing after the Diwali vacation the 2008 petitions by NGO Wildlife First and few retired forest officials, challenging the validity of the Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006. The Court allowed parties to file any affidavits that they may wish to, with service on the other side.According to the petitioners, the Act has led to deforestation and encroachment of forest land. On February 13, 2019, the bench of Justices Arun Mishra, Navin Sinha and Indira Banerjee had directed states to ensure the eviction of all those persons from forestland whose claims under the Forest Rights Act have been rejected. On February 28, 2019, the Supreme Court stayed its February 13 order in the wake of which over 11 lakh tribals and other forest dwellers in 17 states stood to be evicted.On Tuesday, the bench of Justices Banerjee, Surya Kant and M. M. Sundresh heard Senior Advocate Shyam Diwan, for 'Wildlife First'."The principle challenge over here in this batch of traditions is the forest rights act 2006, and there are two foundational principles on the basis of which the challenge is laid. The first is the legislative competence of the Parliament because what the act contemplates is the grant of 'Katta' or land, and land is a state subject, so whether that can be gone into. A bench headed by Justice Chelameswar had heard this at great length for several days. After reserving orders on legislative competence, the bench said it would be better to hear the parties on both aspects- legislative competence and fundamental rights. Thereafter, the matter was slated to be heard.I am requesting that perhaps it would be appropriate for the parties to file updated affidavits, those who seek to do so...The story so far is that according to the respondents and the state governments, the union government etc, there is a certain quantum of persons who have encroached upon forest land. What this court has directed is that 'alright, at least let us ascertain what the quantum of encroachment is and as far as the rights under this act are valid, you cannot allow encroachment so far as forest land is concerned'", began Mr. DiwanSenior Advocate Colin Gonsalves, for the tribals and forest dwellers: "The single prayer in the petition is whether this act is constitutional or not? For the last three years, he is avoiding arguing this point"Mr. Diwan: "I think my friend is suffering from some sort of amnesia. We always wanted to argue the matter. We argued fully so far as legislative competence is concerned. We have argued the matter fully with respect to fundamental rights. Which is when the bench said that 'alright, you have a point here that even on a demurrer, you cannot allow encroachment, and this violates Articles 21 and 14 so far as encroachments are concerned'. The encroachers must go- this is the policy of the court after a full-fledged hearing. In the 13 February 2019 order, The court essentially goes state-wise and records certain degrees of encroachment and eventually directs that the Forest survey of India should put in a report with regard to these encroachments after a satellite survey"Bench: "Mr Gonsalves, what could be a possible objection to this? We are not asking you to file an affidavit but asking the concerned department to do it. We are dealing with the public interest litigation"Mr. Diwan: "After 13 February 2019, there is a further order on 28 February 2019, when this position is further reiterated with regard to the survey"Senior Advocate C. U. Singh for the respondents- Adivasi traditional forest dwellers: "This is a case of a tail wagging the dog. The petitioner comes here raising questions of legislative competence and that the Act is violative of their fundamental rights. All the prayers in the petition were only confined to the validity of the Act. Having come in on that basis, the petitioner comes and says 'ask them to file affidavit, ask them to file affidavit'. They are issuing directions to state governments, foresters, they write letters, they are speaking on behalf of the Supreme Court of India? I have a serious objection to this. You cannot found a case based on the legislative competence challenge and then you cannot ask for all sorts of interim orders and directions before you have established that Challenge!"Bench: "Are you the encroacher or not?"Mr. Singh: "We are the traditional Forest dwellers"Bench: "There is a larger issue, a larger interest. We want to know what is the nature of encroachment made...Forest dwellers, they stand on a different footing. We are looking at alleged encroachment by non-forest dwellers"Mr. Singh: "They are arguing that under this act, Forest dwellers have been given in certain cases more land that they may be entitled to. When the 13 February order was passed, we were not heard. When we came to this court, this order was kept in abeyance on 28th of February"Justice Banerjee: "This...

'Matter Requires Hearing": SC Posts Plea Against Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 After Diwali

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