INTRODUCTION
The Central Government and its explorations with the Forest Rights Act (‘FRA’), 2006[1] do not seem to end. The noncompliance with the Act and the uncalled-for diversion towards the Forest Conservation Act (‘FCA’) of 1980[2] under the aegis of which, the Conservation Rules of 2022[3] have been formulated. The earlier 2003 Rules along with their amendments[4] have been done away with leaving the forests and whatever is left of the natives and dwellers that depend upon it. This departure from the legislative intent of FRA, which was for the upheaval of dwellers and the tribal persons, prolonged injustice they were subjected to, thereby giving the cardinal rights of forests a force of law.
AN INQUIRY INTO THE NEWLY FRAMED RULES
As established, the Forest Act of 1980 establishes a rule based upon the mechanism relating to certain institutions, along with the procedures for approving and giving away forest land to agencies that performed specialized tasks of diversion, lease[5] , and de-reservation. The issues relating to deforestation under the established principles of forest rights law were based upon selective felling and the paradigm shift is now towards the exception of clear felling. This, in turn, has created issues for forest residents, and in the 2003 Rules, the Ministry’s[6] regional office could process the proposals that relate to the use of forest land, keeping in view the area to be excluded as a diverted area as such. Just to do away with the various proposals at different levels, speedy clearance, and the like are now being considered.
FRA – A REDUNDANT PIECE OF LAW?
The undertaking whereby the FRA was bypassed by the authorities was based upon the idea that it would be resorted to later but the requirements of some crucial points like the gram sabha’s prior informed consent and necessary certification thereof are now being hindered and done away with. The compliance[7] of the 1980 Act with the FRA is possible by the Ministry’s clarification but it has not been given much weight. The major Adivasi blockade was a testament to the fact that how forest dwellers want the application of this law to their interests[8].
FRA AND THE ISSUES OF NONCOMPLIANCE
The Rules of Conservation, 2022 vide Rule 6(b)(ii)[9] further divests that noncompliance of FRA can be done when dealing with forest diversion, the appropriation of the tree lots for compensatory afforestation is being served as a mere adornment for the appeasement of forest dwellers and the stakeholders and those who advocate for forest rights as such. Though the rules state that there must be due regard of FRA for the compliance of the whole process, it is not hidden that up until the whole process takes place, the Ministry clears the issue and hands it over to the authorities, i.e. the user agencies.
BLURRING ISSUES OF CONSENT – ARE FOREST DWELLERS HEARD?
The bone of contention in this matter is the fact that in the Forest Rules, 2022 doing away with the consent of the tribal people and those in forests has injured their veto rights as such. Even the NITI Aayog has found these processes as being mere bottlenecks of the processes thus facilitating the giving away of forests as soon as possible to the user agencies. The Supreme Court in Orissa Mining Corp.[10] affirmed that the consent of tribal communities is of paramount importance through gram sabhas[11]. The 2017 Rules, gave weightage to the consent and made it binding as the whole process was based upon the obtainment of a licence and the Collector processing it to the Ministry.
PRIOR TRIBAL RIGHTS AND RULES RELATING TO FOREST CLEARANCE
The process of dealing with the conditions of the approval as discussed above in a nutshell would arrive at a sum called net present value (‘NPV’)[12] for felling trees to clear forests. As the predominant political class and bureaucracy prevailed till the enactment of the 2006 Act[13], we are back to the times when the situation is still in its status quo, which is to say that the right of veto is again in shambles. The gram sabha in conjunction with the forest dwellers would come up to the forefront, despite the express mention of the due regard to the settlement of rights under Rule 9(6)(b)[14] which again creates a dichotomy between the FRA and its objectives and the newly established rule and its non-compliance.
Though there has been a clarification from the Centre that once a process of clearance is granted that the 2022 Rules are consistent with the FRA, the disempowered tribals will not be heard and their claims will be left unresolved[15]. The broad spirit of S. 11 of the FRA[16] has been, now and then said to be taken into account by making the State Government a nodal agency to settle this tussle once and for all but doing this in such a constricted scope of application, it does not appear to be a mandating what is being perceived, in fact, S. 4(5)[17] further adds that the dwellers will not be removed until their recognition, verification and other bureaucratical procedures are not complete.
UNCOVERING THE ANOMALY: WHAT IS AT STAKE?
The forest dwellers and their tribal counterparts do not get a say in the regulation of deforestation as such and do not get a part to play in the process of determining non-forestry uses of the forest land, the clearing process as mentioned has been streamlined, but to the detriment of the tribals and dwellers, the various needs and interests that the above-mentioned groups have at stake are also not being considered as such and it further leads on to the accumulation of the barring of the rights relating to the resources of the forest and it makes the Gram Sabha a mere spectator to the wrongdoings and unjustness these groups are subjected to.
The major concerns arising out of it would make the issue more vulnerable to judicial review, widespread injustice, and a dichotomy between the 1980 Act and the 2006 legislation. The Constitutional imperatives advocate for the right to self-determination and a fair chance to have a quality life[18] along with Part IV[19] and conventions like UDHR[20] and ICCPR[21] also lay the groundwork. The prior informed consent clause about indigenous communities is already protected under international conferences like CBD[22] and conventions like UNDRIP[23] and the imperatives under ILO Convention No. 169[24].
CONCLUSION
The major issues of forest rights and tribal interests have been neglected and generally, these disadvantaged groups do not have adequate bargaining power which is used against their interests per se. The issues stemming from this derogation of consent and non-inclusion of the development process would be then redundant and not holistic in that sense. The international considerations and obligations of these rights would not be realized at their full potential and it would send a bad message to the world countries which a vibrant democracy like India would deal with. Though the recourse has been provided in the rules itself as being discussed about the FRA only time will tell as to what will transpire in this regard and what will be the outcome in that matter. For now, the only thing that the tribal persons and dwellers can hold up to is hope.
Author(s) Name: Suhail Khan (Jamia Millia Islamia, New Delhi)
Reference(s):
[1] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Act 2 of 2007).
[2] The Forest (Conservation) Act, 1980 (Act 69 of 1980).
[3] Ministry of Environment, Forest and Climate Change, Notification (MOEFCC, June 28, 2022) <https://thc.nic.in/Central%20Governmental%20Rules/Forest%20(Conservation)%20Rules,%202022.pdf> accessed February 14, 2023.
[4] The Forest (Conservation) Rules were amended in the year 2004, 2014 and 2017.
[5] Lease was usually for non-forest purposes.
[6] Ministry of Environment, Forest and Climate Change.
[7] Display of Scheme (MOEFCC, June 12, 2009)
<http://forestsclearance.nic.in/writereaddata/public_display/schemes/981969732$3rdAugust2009.pdf> accessed February 16, 2023.
[8] Environment Ministry’s new forest diversion rules are bad news for the forest rights (The Wire, July 19, 2022) <https://thewire.in/government/environment-ministrys-new-forest-diversion-rules-are-bad-news-for-forest-rights> accessed February 17, 2023.
[9] The Forest (Conservation) Rules, 2022, r. 6(b)(ii).
[10] Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests & Others, Writ Petition (Civil) No. 180 of 2011
[11] New Forest Laws Don’t Dilute Tribal Rights (Article 14, July 19, 2022) <https://article-14.com/post/minister-says-new-forest-laws-don-t-dilute-tribal-rights-they-do-and-govt-planned-dilution-since-2019-6327ce7b38a42> accessed February 20, 2023.
[12] Government to approve cutting down of forest without consent (Newslaundry, July 22, 2022) <https://www.newslaundry.com/2022/07/07/government-to-approve-cutting-down-of-forests-without-consent-from-tribals-and-forest-dwellers> accessed February 22, 2023.
[13] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Act 2 of 2007).
[14] The Forest (Conservation) Rules, 2022, r. 9(6)(b).
[15] Forest conservation rules consistent with forest rights act (Hindustan Times, July 20, 2022) <https://www.hindustantimes.com/india-news/forest-conservation-rules-consistent-with-forest-rights-act-bhupender-yadav-101657510534142.html> accessed February 22, 2023.
[16] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Act 2 of 2007), s. 11.
[17] Id., s. 4(5).
[18] The Constitution of India, 1950, art. 21.
[19] The Constitution of India, 1950, Part IV.
[20] The Universal Declaration of Human Rights, 1948.
[21] The International Covenant on Civil and Political Rights, 1966.
[22] The Convention on Biological Diversity.
[23] The United Nations Declaration on the Rights of Indigenous Peoples, 2007.
[24] The International Labour Organisation.
