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Landmark Judgement on Commons and Its Impact on Marginalised Communities
Context:
A 2011 Supreme Court judgement on the encroachment of community land, particularly water bodies, has led to increased government powers to remove illegal occupations. However, an analysis by Land Conflict Watch reveals that the judgement has been ineffective in protecting commons and disproportionately affects marginalised communities.
The Judgement’s Impact on Evictions:
- Greater Powers for Government: The ruling allowed broader powers to evict alleged encroachers, focusing on identifying the type of land rather than the nature of the encroachment.
- Evictions without Due Process: In over 64% of 325 high court cases analysed, the rights of encroachers, such as the right to a fair hearing and advance notice, were largely ignored.
- Failure to Protect Commons: Despite the intention to protect community land, the judgement has primarily facilitated evictions without adequate safeguards for the rights of encroachers.
Violation of Encroacher’s Rights:
- Lack of Fair Hearing: 52.27% of cases directed eviction without considering the encroacher’s rights.
- Absence of Regularisation: Only 13% of cases discussed the possibility of regularising the encroached land, particularly for marginalised or indigent groups.
- Impact on Housing: Housing encroachments formed the largest category, yet there was minimal focus on the encroacher’s right to shelter, violating Article 21 of the Indian Constitution.
Marginalised Communities and Evictions:
- Disproportionate Impact: Marginalised groups, especially Scheduled Castes, Scheduled Tribes, and landless communities, were most affected by evictions. These groups were often denied regularisation benefits.
- Commercial Encroachments: While marginalised communities were evicted, commercial and industrial entities were found to be involved in encroachments, raising concerns about unequal treatment.
- State Officials’ Involvement: In some cases, state officials or their relatives were also involved in encroachments.
The Failure of State Policies:
- Erosion of Progressive Policies: Despite the existence of regularisation policies before the 2011 order, many states adopted eviction-heavy approaches post-judgment, with few provisions for vulnerable groups.
- Ongoing Conflicts: Of the 757 ongoing conflicts till March 2023, 131 related to encroachment, affecting over 1.3 million people and spanning significant land areas.
Forest Rights and the Judgement:
- Conflict with Forest Rights Act (FRA): In some cases, traditional forest dwellers were evicted under the guise of encroachment, conflicting with the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
The Need for Robust Protection Systems:
- Eviction without Compensation: The judgement’s blanket implementation has led to dispossession without adequate protection or compensation for evictees.
- State’s Role in Encroachments: The report suggests that by labelling certain individuals as encroachers, the state obscures its role in land distribution and management.
- Recommendations: A more robust system is needed to protect evictees, ensuring due process and safeguards for marginalised groups until clear government decisions are made.
