Systematic sapping of Forest Act

The Government of India has steadily taken steps to subvert the forest rights of tribal communities through different moves such as by bringing amendments to existing forest and environment protection laws. These changes are intended to benefit the corporate sector by diluting the forest rights of tribals and bypassing the role of Gram Sabha.

A futile bid was made to bring the Indian Forest (Amendment) Act 2019, diluting the very spirit of the Forest Right Act, and bypassing the consent provision of Gram Sabha in using forests for commercial usage. The GoI had to withdraw the proposal in view of stout protest against such move.

In 2019, a joint statement was signed by the Secretaries of the Environment Ministry (MoEFCC) and the Ministry of Tribal Affairs (MoTA) that undermines the very role of MoTA, which is the nodal ministry for FRA implementation issuing guidelines and clarifications on FRA implementation. MoTA is now saying that henceforth, they and the Environment Ministry will together provide clarifications – only to simply hide behind the aprons of the Environment Ministry.

Several regulatory conditions were exempted through proposing Mining (Amendment) in 2020 and 2021 to facilitate mining businesses to continue their mining activities without any fresh clearances or approvals. Another similar attempt was made in 2021 to bring an amendment to the Forest Conservation Act 1980 exempting certain categories of forests which have been in the control of Railway, PWD and other departments earlier to 1980 for diversion of forest lands. This proposal gives utter disregard to the forest rights ensured under the Forest Rights Act (FRA) 2006 which applies to all kinds of forests under section 2(d).

The GoI brought out the Biological Diversity (Amendment) Bill, 2021 which was referred to the Joint Parliamentary Committee for its recommendations. The draft provisions clearly indicate to benefit the larger companies to access the forest areas to collect and grow medicinal plants for their companies undermining the role and powers of the Gram Sabha in management of forests under Section 5 of the FRA.

Similarly, the Wildlife (Protection) Amendment Act, 2022 was made diluting the powers of the Gram Sabha under both FRA and Panchayats Extension to Scheduled Area (PESA) Act 1996 while giving control the Chief Wardens over the management plans. In fact, as per the FRA, the Gram Sabha is statutory authority to conserve, the forests, biodiversity, and wildlife.

The GoI-proposed amendments in 2022 to the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 dilute the penal provisions for violations of these Acts. Now the corporates can escape from imprisonments by paying fines for their violations. The proposed amendments also exempted the role of courts for the violations booked by giving powers to the executive officials to adjudicate the cases of violations. These changes challenge the commitment of GoI towards climate justice and expose dual intentions.

The Forest (Conservation) Rules, 2022 were notified replacing the earlier rules of 2003 and subsequent amendments, negating tribal forest rights. The new forest conservation rule seeks to systematically open up forests and ecosystems for private consumption and corporatization.

It is especially evident from the provisions relating to the creation of land banks for compensatory afforestation and the introduction of accredited compensatory afforestation, which will allow private entities to raise private plantations on the revenue and degraded forest lands in Adivasi and tribal areas in order to easily get forest land. 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 FRA 2006.

The new 2022 rules 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 High Court of Andhra Pradesh, in 2019, struck down the orders of the MoEFCC issued in 2013, taking away the requirement to consult Gram Sabha in respect of approval of linear projects in the scheduled areas, where forest land is involved.

Now the new forest conservation rules 2022 dispenses 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 newly introduced Forest (Conservation) Amendment Bill 2023 in Parliament to amend the Forest Conservation Act 1980 (FCA) which was referred to Joint Parliament Committee for its recommendations, further seriously affects the forest rights of adivasis and other traditional forest dwellers. The proposed amendment aims at removing restrictions on certain category of forests for non-forestry purposes which is against the ruling of the Supreme Court in Godavarman Case in 1997, which held that one has to refer the dictionary meaning of forests for implementation of FCA.

The new bill also sought to exempt the application of the FCA on forest lands situated within 100 km from the international borders or actual line of control. This proposed proviso will drastically affect the tribals and other people living on the forests in the Himalayan region and more particularly Jammu & Kashmir wherein 90 percent of the total forest cover is situated within the stipulated 100 km range.

The Bill further exempts forest lands up to 10 hectares for security related infrastructure or public utility projects as specified by Central Government and forest lands upto five hectares in the left wing extremism affected areas for military camps, and also forest lands located on the railway, roads ways etc. All these exemptions from the purview of the application of FCA are in clear violation of the provisions of the FRA affecting the rights of forest dwellers.

Therefore the GoI is under legal obligation to legislate the forest and environment protection laws, not in derogation of the rights of adivasis ensured under the FRA and PESA Act. 

A CRY IN WILDERNESS

u The Biological Diversity (Amendment) Bill, 2021 draft provisions clearly seek to benefit the larger companies to access the forest areas

u The Wildlife (Protection) Amendment Act, 2022

dilutes powers of Gram Sabha, giving control to Chief Wardens over management plans.

u Proposed amendments to Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 dilute the penal provisions for violations of these Acts