On June 28, the Union government notified the Forest Conservation Rules (FCR) 2022, replacing the earlier rules of 2003 and subsequent amendments, negating tribal forest rights. These new rules are in complete violation of the provisions of the Forest Rights Act (FRA), 2006 and the provisions of the Panchayats Extension to Scheduled Areas (PESA) Act, 1996. Several political parties have raised serious concerns over the notification of the new rules by the Ministry of Environment, Forest and Climate Change.
The new rules have done away with the precondition of the settlement of forest rights of the STs and other traditional forest dwellers, under the Forest Rights Act (FRA) 2006, before the diversion of forest lands under the Forest Conservation Act, 1980. The Forest Conservation Act does not permit the diversion of forest lands for non-forest purposes, without the prior approval of the Central Government. Now the Rules framed in 2022, allow granting of prior and final approvals for diversion of forest lands for de-reservation, assignment of forest land on lease or use of land for non-forest purpose, even before the compliance of the tribal forest rights ensured under the FRA.
It is the responsibility of the District Level Committee (DLC), headed by the District Collector to finally issue forest land titles for all the eligible individuals and community recognising the forest rights. The Gram Sabha is the authority to declare the completion of the settlement of forest rights of the people in the village and certify to this effect, before diversion of forest lands. It is also the responsibility of DLC to ensure the recognition of habitat rights of particularly vulnerable tribal groups and facilitating the filing of claims by nomadic communities for their community forest rights.
The Forest Rights Act was enacted in 2006, by the Parliament to undo the historic injustice done to the Scheduled Tribes and other traditional forest dwellers in the country. This Act overrides other forest laws, including the Forest Conservation Act and recognises the individual, community, and community forest resources rights of tribals and other traditional forest dwellers in the forest areas.
Gram Sabha authority recognised by Courts
The new rules of 2022 are in violation of the ruling of the Supreme Court order in Orissa Mining Corporation Vs Union of India (2013), which underlined the statutory role of Gram Sabha in determination and settlement of individual and community rights, before diversion of forest lands in the case of Dongria Kondhs tribes settled in Niyamgiri hills of Odisha.
The question of consent of the Gram Sabha for approval of linear projects by the government in forest areas, came up for consideration of the High Court of Andhra Pradesh. The High Court, in 2019, struck down the orders of the Ministry of Environment and Forests issued in 2013, taking away the requirement to consult Gram Sabha in respect of linear projects in the scheduled areas, where forest land is involved.
The National Commission for Scheduled Tribes directed all the state governments in 2018, to recognise the statutory role of the Gram Sabhas and get their approval to clear the proposals. Now the new forest conservation rules 2022 dispense with the consultation of Gram Sabha to obtain the consent, prior to the grant of approvals for diversion of forest lands in clear violation of the mandate ensured under the PESA Act 1996 and the legal precedents.
The new conservation rules also allow the clear felling of trees for the non-forest purposes, under the supervision of the Forest Department. It also allows the survey of diverted lands by the user agency and the Forest Department, undermining the statutory responsibility of Gram Sabha in management and protection of the community forest lands. This provision also gives a scope for encroachment of titled lands of individual and community by the user agency, if the stakeholders are not involved in the process of diversion of forest lands.
Tribals denied their right when Polavaram project took off
Although there is a need to settle the forest rights under the FRA 2006 prior to the diversion of forest lands, the tribals were deprived of their legal right to secure forest rights in the submergence area of Polavaram project in Andhra Pradesh. The NCST directed the AP government for the settlement of forest rights in 2021, when the tribals complained against the non-recognition of their forest rights. One can only imagine the fate of tribals if there is no provision to comply with forest rights and obtain their consent prior to diversion of forest rights.
The Polavaram project involves the use of 3,833.39 hectare of forest area out of which 3,731.07 hectare of forest area falls in Andhra Pradesh, 102.16 hectare in the state of Odisha and the balance 0.16 hectare in Chhattisgarh. The Central Empowerment Committee constituted by the Supreme Court observed that the forest area is virgin mixed deciduous forest of Eastern Ghats which is most important from the ecological point of view.
There is no bar under new rules to hand over such forest lands for clear felling irrespective of its canopy density. It has always been a mind-boggling question how the loss of virgin forest cover can be replaced with raising of monoculture and other tree species with the Compensatory Afforestation Funds (CAF). Further, the utilisation of such afforestation funds received in lieu of diversion of forest lands from the user agencies, also raises serious concerns. There is a need to involve the Gram Sabha in implementation of the compensatory afforestation programs under the Forest Conservation Rules.
The new forest conservation rules intend to snuff out the rights of tribals while tweaking the procedures to benefit the forest land-based industries. The Ministry of Tribal Affairs is the nodal ministry at the Centre for implementation of Forest Rights Act, which gave clear directions in 2014 to settle the forest rights, before the diversion of forest lands. The Environment Ministry has come up with these new Forest Conservation Rules in deviation from the directions of the nodal Ministry, undermining the rights of tribals.
Dr Palla Trinadha Rao is a lawyer and an activist working for tribal rights for more than three decades. Views expressed are the author’s own.