Over a year ago, the Union government assured Parliament that village councils of Adivasis and other forest-dwelling communities would be consulted before Forest Departments start plantations on their traditional lands under the Compensatory Afforestation Fund Act, 2016.

The promise was a step down from the requirement of seeking consent from forest dwelling tribals and other communities under the Forest Rights Act, 2006. While the requirement of consent would have given Adivasis and other forest dwellers veto power over any plantation proposals, consultation does not.

Going a step further in that direction, the Union government has now drafted rules for the Compensatory Afforestation Fund Act that contain loopholes that will enable forest officials to set up plantations on traditional forests without even this consultation in many of the 1.77 lakh villages across India that have forests.

For this afforestation work, Forest Departments in states are expected to spend money from a corpus of more than Rs 42,000 crore, and future flows of over Rs 6,000 crore a year.

The Union Ministry of Environment, Forest and Climate Change sent the draft rules to the states for their comments in April. Scroll.in has reviewed the draft that is yet to be made public by the ministry. The Union ministry did not reply to detailed queries sent by Scroll.in on the subject. When contacted on the phone, the Inspector General of Forests, one of the senior-most officials in the government managing forest-related issues at the ministry, refused to talk on the subject.

The plan

Since 2006, the Union government has levied a charge on industries, miners and others who need to fell forests for their projects. This levy, called the “compensatory afforestation” charge, goes into the Compensatory Afforestation Fund, which will be used to plant trees in an area similar in size to the forests that have been lost due to development activity.

Till last year, the fund lay largely unused with the Centre, even as states demanded that it be handed over to them. In June, 2016, the Centre agreed, and passed the Compensatory Afforestation Fund Act. With this, the Centre handed over Rs 42,000 crore that had accumulated in the fund already to the state Forest Departments. It also committed 90% of all future flows to the states for afforestation work.

However, during the passage of the bill in the Rajya Sabha, Opposition parties demanded that provisions to safeguard the rights of Adivasis and other forest dwellers under the Forest Rights Act, 2006, be inserted into the Bill. They demanded that consent be sought under the Forest Rights Act from gram sabhas or village councils before any money is spent on plantations in traditional forests of Adivasis and other forest dwellers.

In response to the demand, the Union government said it would ensure that the gram sabha consultations are held. The Compensatory Afforestation Fund law was subsequently passed without any clarity on how it could do with mere consultations when the Forest Rights Act demanded nothing less than the consent of gram sabhas for using forests for any other purpose.

Notwithstanding this, the Union government’s assurance in Parliament held great significance for more than 200 million Adivasis and other forest dwellers in India who depend on forestland for their livelihoods.

Members of the Dongria Kondh tribe at the Niyamgiri mountain in Odisha. (Photo credit: Reinhard Krause/Reuters).

The Forest Rights Act

Since colonial times, most Adivasis and other forest dwellers did not had recorded rights over forests or were classified as encroachers on their own land, which was controlled by the Forest Department.

To correct this, Parliament in 2006 passed the landmark Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, also known as the Forest Rights Act. The law gave back to traditional forest dwellers their individual and community rights to access, manage and govern forest lands and resources within village boundaries. This law makes the gram sabha the statutory body for managing claims, and then protecting the forests. It provides that no activity should be carried out in these forests till the individual and community claims over these lands have been settled.

It also requires that the consent of the gram sabha is sought before any activity is carried out on these lands, including by any government agency, after the rights of people and communities are settled. This was reiterated in the Supreme Court’s landmark 2013 judgement on Vedanta’s mining project in the Niyamgiri hills of Odisha in which the court directed gram sabhas in the area to take a decision on whether the mining should go forward or not.

Not just industrial projects, even government plantations can lead to the displacement and curtailment of rights of Adivasis and other forest dwellers. In the past year, such cases have been reported from states like Odisha, Andhra Pradesh and Chhattisgarh where Adivasi communities have complained to authorities that the state Forest Departments are fencing off and setting up plantations on land over which they have received titles of forest rights, or land where their claims of rights are pending.

More than a year after the government’s assurance in Parliament, the rules for the implementation of the Compensatory Afforestation Fund Act, called the draft Compensatory Afforestation Fund Rules, 2017, have been prepared. However, they contain many loopholes that bypass the need for consultations with village councils to set up plantations on forest land that Adivasis and other forest dwellers have traditionally used.

Tricks in the draft rules

On first reading, the draft rules come across as more progressive than the regulations that the Union government promised in Parliament. For instance, where the rights of Adivasis and forest dwellers have been settled, the rules require not only consultation but also consent from the village gram sabha.

But in large parts of the country the Adivasis and other forest dwellers have either not yet filed claims over their lands, or their claims have not been settled even after a decade. The Union government has often reported the inefficiency and even reluctance of many states to facilitate and promote the implementation of the Forest Rights Act. Its reports have talked of how even when claims are filed, states either do not settle the claims or reject many on flimsy grounds. This is particularly the case of community rights across the country.

A 2016 study by the Washington-based think-tank Rights and Resources Initiative, conducted along with several Indian organisations, showed that so far communities have got titles to govern only about 3% of the 34.6 million hectares of land traditionally used by them. The study estimates that the rights of around 190 million Adivasis and other forest dwellers remain unrecognised.

Data from the Union Ministry of Tribal Affairs shows that as of April 2017, only 1,38,425 community claims had been filed and of these only 62,893 had actually been granted over an area slightly less than four million hectares. However, the Rights and Resources Initiative study pointed out that actual community forest governance rights were recognised on much smaller area as government data clubbed the community’s forest use and access rights with governance rights.

A Maldhari tribal woman and her child collect sand in the Gir forest in Gujarat. (Photo credit: Amit Dave/Reuters).

Rules violate Forest Rights Act

In areas where claims have been made over traditional forest lands but not yet settled, the draft Compensatory Afforestation Fund Rules ask for only a consultation with the gram sabha. But here arises another problem.

Rules are meant to be subordinate to the laws they are drafted under; they are not permitted to alter or restrict any provision of their mother law, or any other legislation. However, the draft rules have restricted the definition of the gram sabha in a manner that the Forest Rights Act does not permit. The draft rules say:

“‘Gram Sabha’ means a general body of the village consisting of members that include every adult of the village with population at least exceeding 1,500 people. However a Gram Sabha may be formed even if the population is less than 1,500. If the population of several villages are less than the prescribed minimum, then the villages are grouped together to form a Gram Sabha.”

But the Forest Rights Act does not require a village to have a minimum population size in order to constitute its gram sabha and is particular that the village councils must be formed at even hamlet level if need be. The Union Ministry of Tribal Affairs clarified this in statutory guidelines to states that said: “whether in Scheduled Areas or non-Scheduled Areas, the Gram Sabha should be held at the hamlet level or the village level”.

This was specially provided for at the time of legislating the Forest Rights Act because it was known that most tribal villages are small in size. The average population of a village having forestland is 1,150, according to the 2011 Census. Tribal villages in forest areas are scattered habitations with small populations, each of them having specific traditional rights over resources. For instance, Madhya Pradesh alone has over 19,000 habitations with an average population less than 1,000 people. The gram sabha in each of these villages is empowered to protect its rights under the law, which may not happen if they are clubbed together.

“This one rule [requiring minimum 1,500 members] is sufficient to render any role for gram sabhas meaningless,” said Shankar Gopalakrishnan, a legal researcher with Campaign for Survival and Dignity, a forum of organisation working on tribal rights. “Even calling a meeting of 1,500 people will be next to impossible. This is even more pernicious in forest and hill areas, where settlements tend to be small and widely scattered, and this would mean bringing together people who do not live in the same settlement. The need for smaller, habitation level gram sabhas has been a central demand of Adivasi movements in central India for the last three decades.”

After first inserting a minimum limit on the village population for consultation with the gram sabha, the draft rules say that “a gram sabha may be formed even if the population is less than 1,500”. But this only creates greater ambiguity as the rules do not say what would be the criteria to constitute gram sabhas with only over 1,500 people, or when fewer numbers would suffice.

Yet another route to bypass the need for consent or consultations with the gram sabhas has also been created in the draft rules. Instead of consulting gram sabhas, the rules say that state Forest Departments can instead consult village-level Forest Protection Committees that are constituted under the Joint Forest Management Scheme of the government through which the department claims to involve local communities in forest management.

However, unlike the gram sabhas, these committees are controlled by the Forest Department and do not come under the Forest Rights Act. Handing over any role or power of the gram sabha to other committees or bodies had been earlier prohibited by the Union Ministry of Tribal Affairs under the Forest Rights Act.

The ministry has said:

“Conversion of JFM [Joint Forest Management] Committees into Committee [of the Forest Right Act] under Rule 4(1)(e) is neither mandated nor desirable under the FRA [Forest Rights Act] as the objectives, structure and mandate of JFM is different... The practice of equating JFM Committees with community rights under FRA has been deprecated in clear terms.”

But, the draft rules say,

“For activities to be undertaken on land not under the administrative control of the State Forest Department, the prescription of the Annual Plan of Operation (for plantations) shall be duly approved by the Gram Sabha or any committee such as Van Sanrakshan Samiti or Village Forest Committee or any such committee for management of forest constituted by the Gram Sabha of the concerned villages following the provisions of the Scheduled Tribes and Other Traditional Forest. Dwellers (Recognition of Forest Rights) Act, 2006 wherever applicable.”

The mentioned Van Sanrakshan Samiti or Village Forest Committee do not come under the Forest Rights Act either, and are tightly controlled by state Forest Departments. This small print could be used to bypass the need for consultation or consent across many gram sabhas in the country as the Forest Department runs its Joint Forest Management scheme on a pan-India scale.