July 17, 2022

On the New Amended Rules for The Forest Conservation Act

IN a letter to Bhupender Yadav, union minister for labour and employment, environment, forest and climate change, on July 11, Brinda Karat, CPI(M) Polit Bureau member, and former MP, has raised the following issues on the new amended rules for the Forest Conservation Act gazetted on June 28, 2022. 

1. The changes in the rules are so far-reaching in their aim to help corporates and private companies to gain access and control of India’s forests that in honesty the government could well have brought a new law, so that people of India could understand the government’s priority. Indeed taking the rules in their entirety, it is more suited for a Forest Corporatisation Act rather than a Forest Conservation Act. For example, whereas the earlier rules had provision for diversion of 100 hectares or more, in the new rules the “more” has now been quantified as “more than 1000 hectares” a huge amount of forest land. It is significant that the ministry of tribal affairs had objected in 2019 to some of the provisions which had been suggested by MOEFCC (F.No.23011/23/2012 FRA).

2. It is objectionable, condemnable and unacceptable how the amended rules have totally eliminated the rights of gram sabhas and of tribal communities and other traditional forest dwellers living in forests. The rules of 2003 were amended after the passage of the Forest Rights Act 2006. MOEF circular dated August 3, 2009 clearly stated the requirement of getting a letter of consent from each gram sabha prior to in principle approval. In 2017 under your government this was diluted but the necessity for gram sabha approval was retained.

This set of rules specifically as part of the initial process of getting “in principle approval” for the project stated in:

3.e.(i)  “The District Collector shall complete the process for settlement of rights with the provisions  of the ST and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 for the entire forest land in the proposal.

(ii) obtain consent of each gram sabha having jurisdiction over the diversion of the forest land indicated in the proposal for the diversion of such forest land and compensatory and ameliorative measures, if any, having understood the purpose of details of diversion and forward to Conservator of Forests “for on site inspection, feasibility etc.” In other words gram sabha consent was required before giving in principle approval for the project.

The new rules stipulate a two stage approval process – in principle approval and final approval. Shockingly to get either of these approvals from the central government, in the list of compliances, the condition for consent of gram sabha and settlement of rights has been completely eliminated.  Leave alone in the process before in principle approval, or as part of in principle approval now even the final approval will be given by the central government under Clause 9 (b) (i) with no reference to gram sabha or settlement of rights. To further emphasize the utter disregard for the plight of tribals and OTFDs, the rules in Clause 9.5.A state that for in principle approval the “state government should consider all issues having direct and indirect impact on forest, wild life and environment” but no mention of tribals here.   Therefore at no stage is there any right of tribals or OTFDs living in the forest to give or not give consent. Moreover, the central government will give its final approval and collect the payment for compensatory afforestation with no responsibility whatsoever for protection of tribal rights. This has been shifted to the state government.

Under Clause 9(b)(ii) it is stated that “the state government or the union territory as the case may be after receiving final approval from the central government, and after fulfilment and compliance of the provisions of all other Acts and Rules thereunder including ensuring of settlement of rights under the Scheduled Tribe and Other Traditional Forest Dwelling Communities (Recognition of Forest Rights) Act 2006, shall issue order for diversion, assignment of lease or dereservation, as the case may be.” Thus a fait accompli is created where the voices and rights of tribals is silenced. The words “consent of gram sabha” there in the earlier rules have been deleted.

This is totally against the constitutional guarantees given to tribal communities, it is in violation of the  Fifth and Sixth Schedules, the PESA, the amended Wild Life Protection Act and finally and importantly the FRA. It is a violation of the Supreme Court judgement in the Niyamgiri mining case, 2013.

3. The new rules have introduced the concept of land banks for compensatory afforestation. In case the user agency is unable to provide suitable non- forest land for afforestation, then on payment, state governments can provide land which may include degraded, notified or unclassed forest land. In many states, most of such land is near habitations and often have rights of people recorded on these lands. Thousands of families live on such lands since decades. It is worth remembering  the NC Saxena Working Group set up by the then Planning Commission to look into the question of leasing out degraded forest land to private companies for plantations, had stated “degraded forests with some soil depth are dispersed, they have extreme biotic pressure and therefore are ideally suited for regeneration provided one works with the people. Such forests are certainly not "useless", as they satisfy livelihood needs of about 100 million people.” There is no mention at all in the rules as to what will happen to these millions of people. The FRA definition of forests includes unclassed forests. In other words tribal communities and OTFDs have legal rights in these forests. The rules have no mention of this. Thus these land banks and also the availability of such lands to user agencies in the name of compensatory forest afforestation will have a most disastrous impact on existing rights of people on the land.

Moreover, the rules give the right to the user agency to negotiate to get land for compensatory afforestation in any other state if land is not available in the state where the project is to be started. Thus this handover of large tracts of forest land to corporates and private companies will have a wider impact since non-forest land in other states will also be made available for them, on payment in the name of compensatory afforestation. The payment will go to the central and state governments. People affected will have no share in the compensation. Land which should be distributed to the landless will go to corporates for afforestation.

4. The rules apart from the huge amounts of land of over 1000 hectares, mentioned earlier, also give permission for projects in hitherto restricted areas considered inviolate. Under Clause 9 (5) (E) it is stated that advisory committee when examining a project should see “whether adequate justification has been given and appropriate mitigation measures have been proposed… if the forest land proposed to be used for non-forest purposes forms part of a national park, wildlife sanctuary, tiger reserve, designated or identified tiger or wild life corridor or habitat of any endangered or threatened species of flora and fauna...”  This means that if the justification is adequate, all these “inviolate areas” will be opened up for private sector projects. This is in sharp contrast to the coercive measures being applied by the ministry to evict thousands of tribal families who have been living in these areas.

The above are only illustrations, not exhaustive, of the objections to the rules. The change in rules is an opaque process without prior consultation or discussion with those who are affected.  The procedure of parliamentary approval is reduced to a mere formality. Given the consequences which will surely arise once these rules are implemented, the government should put them in abeyance till there is a public discussion and opinions elicited from all those sections likely to be affected. The rules should also be sent for examination to the relevant standing committee of parliament and the opinions of the ministry of tribal affairs which is the nodal ministry for implementation of the Forest Rights Act must be included.