Existing forest laws in India largely put the state in charge of environmental protection, which tends to create an imbalance of power between vulnerable forest-dwelling communities and the authorities. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), was specifically enacted to correct this disparity. Over the past few years, however, several attempts have been made to dilute the law and take away the little agency that indigenous communities have acquired.
Now, a new set of procedures under the Forest (Conservation) Rules, 2022, being pushed by the Central government, threatens to remove the participation of forest-dwelling communities in the process of land clearance.
On June 28, the Central government notified the Forest Conservation (FC) Rules, 2022, to replace the Rules of 2003 and subsequent amendments to it (2004, 2014, 2017). The new rules will allow private developers to clear forest land for compensatory afforestation and development and infrastructure projects without the prior consent of gram sabhas, thereby violating an important provision of the FRA.
“Under the new rules, collective thinking might become a thing of the past.”
Earlier, the Union government was required to take the consent of the communities concerned before approving private projects. Now, it can approve the handover of forest land and collect payment from the private developer even before the State government obtains the approval of forest dwellers.
Environmental experts believe that the introduction of the new rules will stir a hornet’s nest and trigger a plethora of problems among communities, the state, and the private players involved. The Forest (Conservation) Act (FCA) of 1980 restricts the powers of the state in the de-reservation of forests and the use of forestland for non-forest purposes. Under the new rules, that kind of collective thinking might become a thing of the past.
According to Tushar Dash, an independent researcher from Odisha, the new rules issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) can lead to major conflicts, especially with laws protecting the rights of Adivasis, such as the FRA and the Panchayat Extension to Scheduled Areas (PESA) Act, 1996.
The proposed rules violate not only the FRA but also the guidelines issued by the MoEFCC itself on August 3, 2009, which clearly laid down that prior consultation with gram sabhas is essential before any decision on diversion of forestland. The idea was to ensure correct legal action by way of resettlement and the like if the need for future redress arises.
The Niyamgiri precedent
The Supreme Court endorsed this legal position in the matter of the Niyamgiri Hills of Odisha. In Orissa Mining Corporation vs Ministry of Environment & Forest & Others, 2013, the apex court said that the 12 gram sabhas of the Dongria Kondh, Kutia Kondh and other tribal communities would decide if they have religious and other rights over the Niyamgiri Hills and if the mining of bauxite in Lanjigarh, situated below the peak, would affect their religious rights. The mining corporation lost its bid when all gram sabhas spread across Rayagada and Kalahandi districts unanimously voted against the plan in 2013.
Tribals from Kalahandi celebrate the adoption of resolutions by all gram sabhas against bauxite mining in Niyamgiri Hills in August 2013. | Photo Credit: A. Manikanta Kumar
The legal position was reaffirmed in 2017 by the Forest Conservation (Amendment) Rules which stated that no-objection certificates must be obtained from the gram sabha as well as the district collector for a project to proceed.
There have been other success stories as well. Indigenous communities opposed South Korean steel giant POSCO’s project in Odisha; and this year, the Chhattisgarh government was forced to put three mining projects in the Hasdeo Arand forests on hold after facing stiff protests from the local people; Moorang gram panchayat in Himachal Pradesh’s Kinnaur district resisted a hydroelectric power project early in 2022. Sadly, such instances are few and far between: the diversion of forestland is an ongoing process. Dash says, “If you look at information on forestland diversion, more than 3 lakh hectares have been diverted since the FRA was enacted. From 2014 onwards, the rate for diversion has increased from 6,000 hectares to 10,000 hectares a year. Most of these diversions are for mining and infrastructure activities.”
The big fight
Over the past few years, under the garb of “ease of doing business”, attempts have been made to dilute the legal provisions with respect to diversion of forestland: executive orders and circulars of the MoEFCC have directly sought exemption from obtaining gram sabha consent. While the MoEFCC issues these orders, the Ministry of Tribal Affairs (MoTA), the nodal Ministry for the implementation of the FRA, opposes the modification of the laws.
“The proposed rules violate not only the FRA but also the guidelines issued by the MoEFCC itself on August 3, 2009.”
In the long-drawn tug-of-war between the MoTA and the MoEFCC over the rights of forest dwellers and the diversion of forestland, several letters have been exchanged. In March 2014, MoTA wrote to the MoEFCC asking it to clarify the legal position. In 2019, MoTA wrote again saying that FRA compliance and gram sabha consent must be considered before Stage I clearance.
Any proposal for diversion of forestland for non-forest purposes is considered by the MoEFCC in two stages: Stage I clearance, when in principle approval is given for the project, and Stage II, when all statutory and regulatory clearances such as of environment, water, etc., have to be obtained by the project proponent. The time lag between Stage I and State II is two to three years. The MoTA conveyed to the MoEFCC that State governments must use this period effectively to comply with the requirements under the FRA so that there is no hindrance to the FCA or the FRA.
Villagers protest against the proposed minining projects in Hasdeo Arand in June 2022. | Photo Credit: Special Arrangement
But in subsequent discussions, the MoEFCC maintained that it would be required to obtain the gram sabha clearance only in Stage II, to which the MoTA said, “This would prove to be fait accompli as by that time the project proponents would have made sufficient progress and the tribals living in the forest area earmarked for use by project would be put to a great disadvantage and it has been seen that many a times the project applies for FRA clearance only in the last minute and this results in the project getting delayed for want of FRA clearance and as such, the project proponent should produce proof of having initiated FRA clearance process at the point of going in for Stage I FCA clearance itself.”
Meanwhile, the MoEFCC sent a circular about the stage of FRA compliance to Principal Secretaries, Secretaries (Forest) of all States and Union Territories, but not to the MoTA, which is the competent Ministry relating to the FRA. The MoTA in a strong letter to the MoEFCC in April 2019 reminded it that violation of the FRA was a punishable offence under Section 7 of the Act and the authority deemed guilty of not exercising due diligence to prevent the commission of such offence was liable to be proceeded against.
Issues at stake
The new rules show that the MoEFCC decided to ride roughshod over the MoTA and go ahead with its decision to dilute the FRA. “What is proposed now is that FRA compliance and gram sabha consent will be taken at the final stage, which reduces the statutory requirement to just a formality,” says Dash, pointing to two important issues at stake here — compensatory afforestation and creation of a land bank.
Compensatory afforestation is mandated under the FCA for any diversion of forestland for non-forest purposes such as mining, industry or infrastructure. Earlier, a user agency had to provide land not notified as forest against forest diversion and had to bear the cost of raising compensatory afforestation on the same piece of land. The new rules allow private individuals/companies to develop such plantation sites on their own land and use those for compensatory afforestation. Accredited compensatory afforestation may be earned by a person if he has established afforestation over land on which the FCA is not applicable and that is free from all encumbrances, the new rules specify.
Residents around Turahalli Reserve Forest gathered to protest against the Karnataka government’s plan for converting an untouched reserve forest into a conventional park in 2021. | Photo Credit: MURALI KUMAR K
They also make provisions for State governments to create land banks which can serve as plots for compensatory afforestation. “A State government or Union Territory administration, as the case may be, may for the purpose of compensatory afforestation create a land bank under the administrative control of the department of forest; the minimum size of the land bank shall be a single block of 25 hectares — provided that in case a land bank is in continuity of a land declared or notified as forest, protected area, tiger reserve or within a designated or identified tiger or wildlife corridor, there shall be no restriction on size of the land; the lands covered under accredited compensatory afforestation may be included in the land bank,” the rules say.
An afforestation shall be counted towards Accredited Compensatory Afforestation if such land has vegetation composed predominantly of trees, having canopy density of 0.4 or more (tree canopy density of 40% or more) and the trees are at least five years old. In such cases, compensatory afforestation on 10% less land as compared to forestland to be diverted for non-forest purposes will also be accepted.
Detrimental effects
Dash says that earlier the forest advisory committee had proposed a similar scheme called the Green Credit Scheme. “Suppose land is not available for afforestation, then a company can raise plantation on any land held by the company, that can be traded off as compensatory land. It is not a fair exchange. It is the responsibility of the state to ensure a fair exchange. If you allow any private plantation to be swapped, and any company can raise anything on any land, who will ensure what kind of land is being used? The company usually acquires a large area, some of which is not used. That land should be handed back to the community, which the companies don’t do. If they give the same land as compensation to some other community, that creates problems too. On the one hand, people are going to lose land. On the other hand, people are going to lose community forest due to the new scheme. All these decisions and the way they play out will prove detrimental to the rights of forest dwellers.”
The Congress party has opposed these rules vociferously. On Twitter, Congress general secretary Jairam Ramesh shared a statement saying, “In a new set of Rules issued very recently, the Modi Government has allowed for forest rights to be settled after final approval for forest clearances has been granted by the Central Government. Obviously, this has been done in the name of ‘ease of doing business’ for a chosen few. But it will end the ‘ease of living’ for the vast many. Once forest clearance is granted, everything else becomes a mere formality and almost inevitably no claims will be recognised and settled. The State governments will be under even greater pressure from the Centre to accelerate the process of diversion of forest land.”
Bhupendra Yadav, Union Minister of Labour and Employment, Environment, Forest and Climate Change, defended the rules on Twitter, saying they were not inconsistent with the FCA, whose compliance can be ensured “subsequently.”
Congress leader Rahul Gandhi tweeted, “‘Modi-Mitr’ Sarkar at its crony best! The UPA’s Forest Rights Act, 2006 has been weakened by the BJP government’s new FC Rules, 2022 for ‘easy [sic] of snatching’ forest land. Congress stands strongly with our Adivasi brothers and sisters in their fight to protect Jal, Jungle, and Zameen.”
Communist Party of India Rajya Sabha MP Binoy Viswam, and Communist Party of India (Marxist) leader Brinda Karat also criticised the new rules, urging that they should be withdrawn immediately. The rules are expected to be placed for approval before the Lok Sabha and Rajya Sabha for 30 working days in one or more sessions. The ongoing Parliament session continues till August 12. Environmentalists are waiting to see the outcome. But they think that the government has already shrugged off its responsibility of protecting tribal rights.
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