Legislation

Forest rights under siege

Print edition : June 24, 2016

Tribal people who will be affected by bauxite mining in the Jerrila reserve forest area in Visakhapatnam district stage a protest on November 11, 2015. Photo: C.V. Subrahmanyam

Attempts to dilute the Forest Rights Act and steamroller the Compensatory Afforestation Fund Bill, 2015, through Parliament raise concerns about violations of land rights conferred on tribal people and other traditional forest dwellers.

THE Forest Rights Act (FRA), also known as the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, like the Mahatma Gandhi National Rural Employment Guarantee Act, was enacted by the United Progressive Alliance government during its first term (2004-09) when it was supported by the Left.

Now the FRA is sought to be violated by side-stepping the gram sabhas, which have been assigned important roles in its implementation. Tampering with the provisions of the FRA is a serious issue as the matter concerns the land rights conferred on tribal people and other traditional forest dwellers. The opposition parties have decided to protest against the move to amend the FRA.

In addition, the Compensatory Afforestation Fund Bill, 2015, which seeks to establish a National Compensatory Afforestation Fund and State Compensatory Afforestation Funds, was passed in the Lok Sabha on May 4, without addressing the concerns raised by opposition members of the House regarding the role of gram sabhas, the use of the Compensatory Afforestation Fund Management and Planning Authority’s (CAMPA) funds for the enhancement of the livelihood of tribal people, and the land rights of tribal people and other traditional forest dwellers.

According to the PRS Legislative Research, a database that provides details of the legislative process, the FRA recognises and vests forest rights and occupation of forest land with S.Ts and other traditional forest dwellers. These rights include the right to collect and sell minor forest produce and the right to habitation and cultivation for livelihood in the forest, among other things.

The law stipulates that before forest land can be acquired for any project, the gram sabhas in the area are required to certify that the process of recognition of the rights is complete and give their informed consent to the diversion of forest land. Following reports in April 2015 that the Ministry of Environment and Forests and Climate Change was seeking to dilute the provisions of the FRA, the Ministry of Tribal Affairs, which is the nodal Ministry responsible for the administration of the FRA, 2006, requested the Department of Legal Affairs to share its views on issues relating to the consent of gram sabhas for the development of infrastructure projects in non-scheduled areas. The Ministry did not hear from the Legal Affairs Department and the Environment Ministry until the year end.

Record of discussions

The record of discussions at a meeting on November 24, 2015, chaired by the Secretary of the Environment Ministry and attended by the Secretary of the Ministry of Tribal Affairs, a copy of which is available with Frontline, indicates there was exertion of pressure on the Tribal Affairs Ministry to dilute the FRA.

The Environment Ministry sought comments from the Tribal Affairs Ministry on certain draft guidelines regarding delinking the grant of approval under the Forest Conservation Act (FCA), 1980, for use of forest land for non-forest purposes from the requirement of initiation and completion of the process for recognition and vesting of forest rights on S.Ts and other traditional forest dwellers in accordance with the provisions of the FRA and the rules framed under it.

The Tribal Affairs Ministry was supposed to examine and provide its comments within 15 days on, one, fixing of timelines to receive and settle claims for recognition and vesting of forest rights on S.Ts and other traditional forest dwellers and the notification of areas where the process for the recognition and vesting of forest rights had been initiated and completed; two, giving exemption from initiating and completing the process for recognition and vesting of forest rights in villages that do not have a substantial population of S.Ts and other traditional forest dwellers; and, three, exemption of the proposal seeking prior approval of the Centre under the FCA for use of forest land for underground mining from the requirement of initiating and completing the process of recognition and vesting of forest rights in accordance with the provisions of the FRA.

The Ministry of Tribal Affairs had expressed reservations about the issues concerned. It observed: “Delinking forest clearance under FCA and rights recognition under FRA would be deemed to be a retrograde step by the government.” In its detailed comments, it referred to the Supreme Court ruling in the Niyamgiri hills (Odisha) case.

The three-judge bench held that “forest approval cannot be granted to a developmental project without the decision of the gram sabhas, taken after proper consideration and in a duly convened gram sabha and passed by resolution”. On December 14, the FRA division of the Tribal Affairs Ministry, giving its comments on the issue of delinking the FCA from the process of recognition and vesting of forest rights under the FRA, said there was an “organic linkage between the two statutes which aim at conservation of forests while ensuring sustainable development… in accordance with these provisions, the village community or the gram sabha is to ensure that the community forest resources are protected…. The gram sabha is empowered to ensure that the decisions of the gram sabha to stop activities which adversely affect the wildlife, forests and biodiversity are complied with.”

The Ministry of Tribal Affairs also pointed out that “the forest land in question, when proposed to be diverted for a non-forest purpose, is the same forest land in which forest rights may be subsisting. Therefore, a decision for diversion of forest land prior to a rights recognition process would negate both letter and spirit of the FRA and thereby the law fails.”

The note pointed out two more instances where the FRA had not been complied with: one, the Thoubal Multipurpose Project in Manipur and, two, the 97-megawatt Tashiding Hydel Project in west Sikkim where the High Court brought the project to a halt. It had been acknowledged, it said, that there was a need to make the FRA harmonious with other related laws such as the Land Acquisition Act (Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) and the Mines and Minerals (Development and Regulation) Act, 1957, both laws that reiterated the special protections under the FRA.

The Ministry of Tribal Affairs also pointed to the tardy implementation of the FRA in several States. The larger point was that the FRA was not an impediment to projects. On the issue of fixing of timelines for vesting and recognition of forest rights, the Environment Ministry’s note said no timeline had been fixed under the FRA though the Ministry had written to State governments to expedite the process of recognition and vesting of rights. It said the “vesting and recognition of forest rights under the FRA required careful and critical consideration by the gram sabha” and that undue haste in the implementation of the FRA could lead to perpetuation of the historical injustice against forest dwellers or dubious claimants getting recognition and rights. In areas affected by left-wing extremism, it said that “putting timelines may further alienate communities in these areas”, and that since 2009, a large number of projects had been given forest clearance with no evidence to show that the recognition of rights under the FRA had caused any delay in such clearances.

No provision for exemptions

On the issue of exemption from completion of the rights recognition process in areas where there were no forest dwellers, the Ministry of Tribal Affairs stated that “there was no room for any executive authority under the GOI to provide any exemption to any class of persons, any kind of forest right, any kind of forest land or any category of project from the application of the FRA”, adding that any such order would be in violation of the FRA since there was no provision in the Act for exemptions. It also needed to be established that the population of such villages did not qualify as claimants under the FRA and that the gram sabha was the only authority to certify this. It added that even where there were no S.T. populations and in forest lands which previously had no forest cover, such as plantations along roads and canals in Punjab and Haryana, the Environment Ministry could conclude that there were no eligible claimants under the FRA on the basis of available records, and yet “this could not be construed as an exemption from the operation but an evidence-based decision-making”.

Clearance from gram sabhas was important in areas where underground mining was in progress. The Tribal Affairs Ministry’s note observed that even where such mining was allowed, the process of recognition and vesting of forest rights under the FRA needed to be completed lest such mining resulted in damage to forest rights and required relocation and compensation to forest rights holders.

It said that there was documented evidence to show that underground coal mining in the Jharia coal fields in Bihar had caused damage to aquifers and other hydrogeological formations. It pointed out that previously the Environment Ministry had issued advisories pertaining to the exemption from the FCA for renewal of mining leases, prospective mining and cutting of trees where exemption was also given from completing the process of recognition and vesting of rights under the FRA.

The exemptions, the note pointed out, had been struck down by the Supreme Court and the National Green Tribunal, and therefore the Ministry of Tribal Affairs was of the view that any exemptions for underground mining might draw the adverse scrutiny of the courts. On the issue of diversion of forest land for non-forest purposes, the Ministry stated that the time lag of two to three years from the stage of in-principle approval to the stage where all statutory and other regulatory clearances were done should be utilised by State governments in accordance with the provisions of the FRA. In any case, gram sabhas’ certification that the forest rights recognition process was complete was imperative before the stage II clearance process.

Basic concerns

The Ministries of Tribal Affairs and Environment have been at loggerheads with each other over the need to acquire land, including forest land, for industry. Amid all this, the Centre introduced the Compensatory Afforestation Fund Bill in May 2015. The term compensatory afforestation predates the Bill and owes its genesis to Congress regimes. The Bill seeks to provide a legislative cover for the utilisation and release of funds vested in the CAMPA (set up in 2009 following a Supreme Court order) from the Centre to the States. The money is meant for afforestation projects. According to a government release, this authority has a corpus of Rs.40,000 crore.

The Bill, which was passed by the Lok Sabha in May 2016, ran into a roadblock in the Rajya Sabha, with members representing the Communist Party of India (Marxist), the Congress, the Trinamool Congress and the Janata Dal (United) opposing it. On May 13, the last day of the Budget session, Prime Minister Narendra Modi expressed regret that the Bill to set up the CAMPA could not be passed in the Rajya Sabha. Jitendra Chaudhary of the CPI(M) participated in the debate on the Bill in the Lok Sabha.

In a letter to the Environment Minister, he reminded him of his assurance to accommodate the points raised by the MPs—that the Bill required a compulsory provision to include gram sabhas before finalising any project of afforestation of forest land where the predominant inhabitants were tribal people and other forest dwellers; that a certain portion of the fund should be used for the enhancement of the livelihood of tribal people and other forest dwellers; and that vesting of rights over forest land should be completed under the FRA before undertaking any project. He said the claims of around 80 lakh families were yet to be settled.

In a separate statement, Jairam Ramesh, former Union Environment Minister and Rajya Sabha member, said: “The Prime Minister failed to mention that the reason the Bill could not be passed was his government’s inexplicable decision not to include any provisions in the Bill for respecting the rights of forest dwellers bestowed by the FRA when engaging in afforestation projects. This, at a time when plantation activities of the forest authorities were resulting in conflicts across the country.

“When the opposition gave notice for amendments to this effect, the government could have accepted them; but instead of doing so, the government chose to defer the Bill. This shows that the government does not intend to respect forest rights, as is apparent from its moves to lease forest lands to private companies. It is for the Prime Minister to explain why his government is so keen on transferring thousands of crores to forest bureaucrats without any measures to ensure that these funds are not misused, and that the rights of our country’s poorest people are protected.”

He also pointed out that conflicts had occurred in several instances of “greening programmes” using CAMPA funds. The Compensatory Afforestation Fund Bill, he pointed out, required amendment to ensure that it did not result in the wholesale and gross violation of forest dwellers’ rights. The amendments were needed for three reasons: one, experiences and likely problems that will occur in its implementation; two, legal provisions of the FRA; and three, principles of law that require such provisions to be placed in the statute and not in the rules.

Attempts to dilute laws passed by Parliament and to create laws that allow for easier acquisition of land seem to be driven by expediency notwithstanding the fact that conflicts over land forcibly acquired and pending claims are a reality and are not likely to disappear even if attempts are made to dilute existing laws and steamroller new laws through Parliament.

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