Allahabad HC: Forest Rights Act Must Guide All Claims, Tharu Tribe Gets Fresh Chance

When can the State reject a forest rights claim? And more importantly, which law should guide that decision? A recent order by the Allahabad High Court deals with both questions, while setting aside a 2021 decision that had denied forest rights to members of the Tharu community in Lakhimpur Kheri.

At the heart of the case is an issue, where the claims were made under the Forest Rights Act, 2006 (FRA), but the authority deciding them did not properly apply that law. Instead, it relied on an interim order of the Supreme Court from 2000, which pre-dates the Forest Rights Act (FRA) and the High Court has now said that this approach cannot stand.

The petitioners, over a hundred members of the Tharu Scheduled Tribe, had sought recognition of their community forest rights. In March 2021, a District Level Committee (DLC) rejected these claims. Its decision leaned on the 2000 Supreme Court order, without examining how the FRA applies to the case.

On this issue, Sanjay Upadhyay, senior Supreme Court lawyer and founder of Enviro Legal Defence Firm says, "Simply saying that the Supreme Court said something [in 2000] and therefore we reject your claim is inappropriate. You have to follow the due process of the Act."

The High Court found this to be a basic error. It noted that the FRA is the law that governs such claims, and that the committee failed to engage with it. The judgment points out that the authority did not consider the purpose of the Act or the rights it recognises, and instead relied on an older legal position without checking whether it was still relevant.

In this context, Upadhyay, who was also part of the original FRA drafting process, has noted that the High Court’s intervention is appropriate as it ensures statutory authorities perform their mandated role rather than bypassing adjudication through prior assumptions.

Alok Shukla, an Environmentalist and Convenor of Chhattisgarh Bachao Andolan, appreciated the ruling saying it has finally aligned with the spirit of the law. He asserted that the Act talks about the recognition of rights, not their withdrawal and how once they are recognised, they cannot be taken away. According to him, the DLC exercised its power in direct opposition to the law.

To understand the ruling, it helps to look at what the FRA does. The law recognises the rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers over land and forest resources. These include rights to live on the land, to cultivate it for livelihood, and to access and use minor forest produce.

The court in the judgement makes an important clarification here. The FRA does not grant new rights. It recognises rights that already exist but were never formally recorded. This is central to the law, and the court relies on it to explain why the claims could not be brushed aside without proper consideration.

The judgment also refers to Section 4 of the FRA, which contains a non-obstante clause. In simple terms, this means the law applies even if there are conflicting provisions elsewhere. So if a claim falls within the FRA, it has to be decided under that framework.

Supporting this interpretation, Upadhyay explains, "The FRA is a non-obstante clause... it has an overriding effect of Supreme Court orders which are prior to this law."

In this case, the court found that the DLC did not do that. Instead, it relied on the 2000 Supreme Court order without explaining how it applied after the FRA came into force. In doing so, the court says, the authority effectively “short-circuited” the rights of the petitioners.

Upadhyay further emphasises that such statutory decisions must follow due adjudicatory procedures rather than relying on presumptions drawn from earlier judicial directions, "The High Court is absolutely right in rejecting the order which presupposes that the Supreme Court has said this, therefore your rights are rejected. They have reminded the regulator to follow the due process."

On the protection available during such proceedings, he adds that the law provides an interim safeguard, "The law is that the moment you file a claim, you cannot be evicted till your claim is decided this way or that way."

Shukla highlighted how such rejections are not isolated, “Above 55% of rights claims have been rejected illegally. Proper verification was never done, and the administration demanded 'illegal documents' that the Act itself does not require.”

Shukla alleges that a systemic power imbalance exists within the government, where the Forest Department's refusal to hand over resources effectively stalls the implementation of the Forest Rights Act.

On this basis, the High Court set aside the 2021 order. It has asked the authorities to hear the petitioners again and take a fresh decision, this time in line with the FRA. It has also said that the petitioners’ existing rights should continue until that process is complete, which means they cannot be evicted or displaced in the meantime.

Reflecting the constitutional dimension of these protections, Upadhyay notes, "Even if your forest right is rejected, your subsistence or your existence or your right to life is not rejected. You have a constitutional right to remain alive."

The ruling does not decide whether the petitioners are entitled to the rights they have claimed. That question will be examined again by the authorities. What the court has done is ensure that the decision is taken using the correct law.

Shukla notes that despite the law being 20 years old, it is being continuously violated because the responsibility for implementation lies with an administration that uses procedural complexities to weaken the community's hand.

According to Shukla, tribal communities face a double threat.

“Tribal lands are targeted in two ways, through extraction for mining and dams, or through conservation for Tiger Reserves and National Parks. In both cases, whether resources are present or not, people are simply not being given their rights.”

Citing the Hasdeo region, he says, “In the Ghatbarra mining case, the forest clearance should have been canceled because it happened without the recognition process. Instead, they canceled the community's rights to protect the clearance. It is clear corporate interest at work.”

Shukla also criticises recent legislative changes, calling the Forest (Conservation) Amendment Act, 2023 “the biggest violation.” He explains how the redefined definition of forests and removing vast areas from the diversion process specifically benefits corporates.

“By exempting lands within 100km of international borders, they are making land 'available' under the guise of security.”

On consent mechanisms, he added, “Previously, Gram Sabha consent was required before Stage 1 diversion. Now, the Central Government issues clearances first, and then leaves State Governments to fight with the communities over the final order.”

Upadhyay also clarifies that the legal framework governing forests remains consistent despite statutory amendments, noting that judicial interpretation continues to rely on established definitions ensuring that FRA protections are not diluted in practice.

He warned that the FCA 2023 creates a dangerous legal vacuum where the definition of a 'forest' can be changed at will, leaving indigenous communities like the Tharu in a state of constant legal and physical risk.