Navya Dhawan*
Introduction
On 10 February 2026, the Supreme Court (“Court”) decided Abdul Khalek and Others v. State of Assam and Others (“Abdul Khalek”),approving a state mechanism to clear encroachments from roughly 3,62,082.62 hectares of reserved forest in Assam. This constitutes nearly 19.92% of the state’s entire forest area, according to the Ministry of Environment, Forest and Climate Change data placed before the Court.The appellants were residents of villages inside the Doyang, South Nambar, Jamuna Madunga, Barpani, Lutumai, and Golaghat reserved forests, some claiming continuous habitation for more than seventy years, holding Aadhaar cards, ration cards, and other identity documents issued by state agencies.
Previously, on 23 September 2025, a differently constituted bench of the same Court had confronted a related but distinct problem in Sugra Adiwasi & Ors. v. Pathranand & Ors (“Sugra Adiwasi”). On one hand, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”) promises habitation-related rights, which raises questions about the extent to which those rights encompass permanent housing. On the other hand, theForest (Conservation) Act, 1980 (“FCA”) restricts such construction that would make that promise real. The Court, without resolving the conflict, had directed the Union Government to file an affidavit, within four weeks, explaining how the two statutes could be reconciled.
Read together, these two rulings expose something more troubling than a single state’s eviction drive or a single unresolved statutory conflict. They show that the Supreme Court is now doing, case by case, the reconciliation work Parliament never did. In this piece, I demonstrate how India’s forest jurisprudence increasingly resolves individual eviction and housing disputes through ad hoc litigation mechanisms because Parliament has never harmonised the FRA, 2006, with the FCA, 1980 and the colonial-era Indian Forest Act, 1927. This leaves millions of forest-dwellers’ tenure and housing security dependent not on codified rights, but on which case reaches which bench, and how persuasively a counsel can persuade the bench.
The Existing Law: Three Statutes That Were Never Made to Talk to Each Other
India’s forest governance rests on three legal instruments enacted roughly half a century apart, none of which was drafted with the others in view. The Indian Forest Act, 1927 supplies the colonial-era machinery for declaring land a “reserved forest”. This is the mechanism under which the Assam forests at issue in Abdul Khalek were notified in 1887 and 1888, under the predecessor forest law.The FCA, 1980, was enacted to restrict the diversion of forest land to non-forest use without prior Central Government approval, in response to large-scale deforestation for development projects. The FRA, 2006, came twenty-six years later, for a different purpose entirely, i.e., to correct what the preamble calls the “historical injustice” done to forest-dwelling Scheduled Tribes and other traditional forest dwellers by not recognising their rights during the consolidation of state forests. Section 3 of the FRA lists those rights, including the right to a habitation. It is important to note that the Government has increasingly sought to operationalise these habitation-related rights through Pradhan Mantri Janjati Adivasi Nyaya Maha Abhiyan (PM-JANMAN), which contemplates the extension of housing benefits and related infrastructure on FRA-recognised forest land. Section 4 vests and recognises those rights in eligible claimants. Section 3(2) expressly empowers the government to provide certain facilities to forest dwellers “notwithstanding” the FCA.
That notwithstanding clause is the fault line the Court had to navigate in Sugra Adiwasi. Though the FRA says forest dwellers are entitled to a permanent home, the FCA says permanent construction on forest land generally requires Central Government clearance. Interestingly, in the nineteen years since the FRA’s enactment, no rule, regulation, or amendment has told a Forest Rights Committee, a Gram Sabha, or a district administration exactly how to give effect to both statutes at once. The Court’s order directed the Ministry of Environment, Forest and Climate Change and the Ministry of Tribal Affairs to file a joint affidavit clarifying “scope, method, and manner” of permitting FRA housing construction consistent with the FCA.
Abdul Khalek exposes the second half of the same structural gap. Article 48A of the Constitution obligates the state to protect and improve forests. Article 51A(g) imposes a corresponding duty on citizens.The Court held that these provisions do not authorise arbitrary eviction as “the Constitution does not envisage a choice between the environmental protection and the rule of law, rather, it insists that both co-exist and reinforce each other.” But having said that, the Court did not apply an existing statutory eviction procedure. There is none. Instead, following a hearing on 16 January 2026 at which the Court expressed concern about reconciling rule of law with environmental protection, the Solicitor General sought time and filed an additional affidavit on 18 January 2026 laying out a bespoke mechanism: a committee of forest and revenue officials to examine individual claims, with persons recorded in the Jamabandi register or already holding recognised rights under the FRA excluded from treatment as unauthorised occupants. The Court “accepted” this framework and substituted it for the Gauhati High Court’s earlier orders. It seems, then, that what now governs eviction due process for hundreds of thousands of Assamese forest residents is not a statute or a rule, but rather an affidavit.
The Gap: Litigation as a Substitute for Legislation
This produces a structural problem that goes well beyond Assam. Firstly, the procedural safeguards developed in Abdul Khalek bind only Assam, and arguably only the specific reserved forests named in that batch of appeals. What this means is that a forest-dweller facing an eviction drive in Odisha, Chhattisgarh, or Madhya Pradesh gets no automatic benefit of the Jamabandi-register safeguard or the forest-and-revenue-officials committee process. Rather, in all likelihood, she would have to litigate her own case to obtain an equivalent mechanism. Judicial mechanism-building, however well-reasoned, does not travel the way a statute or a central rule does. Secondly, the housing question in Sugra Adiwasi remains genuinely unresolved. The Court did not decide whether pucca houses can be built; it asked the executive to explain, within a month. Thirdly, and most significantly for policy purposes, is the timing mismatch between rights-recognition and eviction. The FRA’s Section 6 process, wherein claims are filed before the Gram Sabha, verified by a Forest Rights Committee, and finally approved by sub-divisional and district-level committees, was always going to be slower than an administrative eviction drive triggered by a fixed encroachment statistic. The 19.92% encroachment figure relied on in Abdul Khalek measures land currently outside authorised occupation. It does not distinguish between land occupied by someone with a pending, unresolved FRA claim and land occupied by someone with no claim at all.Thus, since the rights-recognition is administratively backlogged, as it is in most forest states, residents are evicted or threatened with eviction, merely because the system has not yet processed their protection.
Reform Proposal
The author proposes that the Parliament should enact a Forest Rights (Harmonisation) Amendment Act addressing both gaps directly. Firstly, it should statutorily require that the FRA’s Section 6 claims-determination process be certified as complete for a given forest area (and not merely “in progress”) before any FCA-linked clearance or eviction action can proceed there, converting what the Court improvised in Abdul Khalek into a nationally applicable rule rather than a state-specific litigation outcome. Secondly, it should impose a fixed statutory deadline, given the matter has already been pending in some form since the Union’s affidavit obligations in Sugra Adiwasi for the Ministry of Environment, Forest and Climate Change and the Ministry of Tribal Affairs to jointly notify rules under Section 3(2) of the FRA specifying exactly how pucca housing construction can proceed consistent with the FCA, ending nineteen years of administrative silence on a right the statute already grants. Thirdly, it should require that any encroachment statistics used to justify a state eviction drive be cross-verified against the Forest Rights Committee’s pending-claims register before authorisation, so that land under a bona fide, unresolved FRA application is not counted and treated administratively as illegal encroachment.
Judicial improvisation is, right now, the only thing standing between hundreds of thousands of residents and eviction without due process. However, a right that depends on litigation reaching the right bench at the right time is not, in any durable sense, a right. It is merely a favourable outcome. Our forest-dwelling communities deserve the former.
* The author is a fifth-year law student at the National Law School of India University, Bengaluru. The author may be contacted at navya.dhawan@nls.ac.in.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.