The diversion of forestland for development works cannot be delinked from the recognition of rights of forest dwellers. That is the clear message that the Ministry of Tribal Affairs has been sending out for the past two years. But the Ministry of Environment, Forests and Climate Change, at which this message is directed and which is eager to streamline forest clearances, does not seem to be receptive.
The tussle between the two ministries at present is on two major fronts - the Maharashtra government's attempt to frame new rules of forest ownership and the union environment ministry's attempt to bypass gram sabha approvals.
Correspondence between the two ministries that Scroll.in has reviewed shows that the tribal affairs ministry made repeated entreaties to the environment ministry to make sure that new forest rules do not violate provisions of the Forest Rights Act of 2006 regarding tribal ownership of forests and rights over forest produce. The letters exchanged between May 2014 and December 2015 also indicate repeated insistence by environment minister Prakash Javadekar, then rural development minister Nitin Gadkari and Maharashtra Chief Minister Devendra Fadnavis, that the tribal affairs ministry soften its stance.
The Forest Rights Act states that gram sabhas must give their consent to the diversion of forest land before it can be taken over for any project. The gram sabhas are also required to certify that the process of recognition of forest rights over the area is complete. The tribal affairs ministry has repeatedly had to emphasise these legal requirements for many proposed projects under governments headed by both the Congress-led United Progressive Alliance and the Bharatiya Janata Party-led National Democracy Alliance.
In fact, the environment ministry won a court battle against the Orissa Mining Corporation over diversion of forestland in Niyamgiri in 2013. In that case, the the Supreme Court upheld the very same provisions of the FRA.
Under the Modi government, however, the environment ministry favours dilution of the FRA provisions.
Back and forth
On May 13, 2014, the Maharashtra government notified rules for the assigning, management and canceling forest rights that gave the state forest department control over forests and their produce. Having reviewed the rules, the tribal affairs ministry headed by Jual Oram wrote to the Maharashtra government in August 2014 asking it to keep the rules in abeyance because prima facie they were in violation of the Forest Rights Act.
Within a week, the tribal affairs ministry received letters from cabinet ministers Javadekar and Gadkari asking the ministry to withdraw its objections. The tribal affairs ministry subsequently wrote to the principal secretary of forests in Maharashtra that the proposed rules were irreconcilable with both the FRA and the Panchayat (Extention to Scheduled Areas) Act of 1996.
The tribal affairs ministry then received a letter from the Maharashtra chief minister Fadnavis with a legal opinion from Additional Solicitor General Pinki Anand, which countered the tribal affairs ministry’s view. The ministry still held the view that the Maharashtra government’s rules were in conflict with the FRA and since the FRA was a central legislation, it had primacy over all other rules.
However, in November the tribal affairs came around to the view that there can be other stakeholders of forest lands beside tribal dwellers and in a December order said it would approve the Maharashtra government's rules, as reported by the Business Standard in January this year.
Tribal affairs sidelined?
Another set of letters released by Jitendra Choudhury, member of parliament belonging to the Communist Party of India (Marxist) at a national convention against illegal grabbing of forest lands in Delhi on Wednesday highlights the standoff between the two ministries on gram sabha approvals.
Following a meeting in January 2015 chaired by the principal secretary to the prime minister, the environment ministry formulated a draft order doing away with gram sabha approval for to infrastructure projects non-scheduled areas. Noting the tribal affairs ministry's strenuous objections, the environment ministry sent the draft to the law ministry for its opinion. The tribal affairs ministry, meanwhile, wrote to the law ministry asking it to share the opinion since it was the nodal ministry for the implementation of the FRA, under which law gram sabha approval comes.
Letters that the tribal affairs ministry in June and again in August suggest that while the law ministry shared its opinion with the environment ministry, it did not communicate this with the tribal affairs ministry.
Delinking forest laws
In November 2015, the environment ministry called a meeting with the tribal affairs ministry to discuss delinking the requirement under the Forest Conservation Act of 1980 of central government approval before diverting forest land for non-forest use and the recognition of rights of under the FRA.
The Forest Conservation Act is meant to check the indiscriminate diversion of forest land for non-forest purposes. The Forest Rights Act is mainly to recognize and vest forest rights and occupation of forest lands with two groups – scheduled tribes and other traditional forest dwellers – who have resided in forests for generations but whose rights have not been recorded.
At the November meeting, the environment ministry also raised the issue of doing away with the requirement of recognising forest rights for villages that had no population of scheduled tribes and other traditional forest dwellers.
After the meeting, the environment ministry asked the tribal affairs to revise its comments on the environment ministry draft guidelines to delink forest clearance under the Forest Conservation Act and the FRA, just as it had done in the case of the Maharashtra forest rules. The environment ministry also took on itself the task of framing rules for sustainable management of community forest resources. Till now the tribal affairs ministry has maintained this prerogative as a primary function of tribal rights.
On December 14 last year, the tribal affairs ministry communicated in a memorandum its views on the issues raised by the environment ministry. “There is an organic linkage between the two statutes [theForest Conservation Act and Forest Rights Act) which aim at conservation of forests and sustainable development,” it said, reiterating that clearing forestland for diversion for a project and recognising rights of forest dwellers cannot be delinked. The memorandum also pointed out that the gram sabha has to be approached to determine whether a village has scheduled tribes and other traditional forest dweller residents or not.
Furthermore, the ministry said that since 2009 a large number of projects have been given forest clearances and that there was no evidence to show that recognising tribal rights under the FRA caused any delay in the process. Yet, it has drawn up guidelines to be followed to streamline the process of recognition of rights to address what it calls “perceived delay”.
As the standoff between the environment ministry and tribal affairs ministry continues, forest rights activists from 11 states gathered in Delhi on Wednesday to protest the attempts of the central and state governments to acquire forest land by bypassing the FRA. The national convention was attended by leaders from the Congress, the Communist Party of India (Marxist), and the Janata Dal (United), while leaders of the Telangana Rashtra Samithi, Communist Party of India, the Communist Party of India (Marxist-Leninist), and the Bahujan Samaj Party sent messages of support.
