Text of the note prepared for submission to the Ministry of Environment, Forests and Climate Change, Government of India, by Pravin Mote and Devjeet Nandi of the All India Forum for Forest Movements (AIFFM), and Tushar Dash, Sanghamitra Dubey and Radhika of the Community Forest Rights -Learning & Advocacy (CFR-LA) on draft Compensatory Afforestation Fund Rules, 2018:
The Compensatory Afforestation Fund (CAF) Act 2016 gravely violates the constitutional and legal rights as well as livelihoods of adivasis and forest dwellers in India, under Article 300A of the Constitution, Panchayat (Extension to Scheduled Areas) Act (PESA) and the Forest Rights Act (FRA). In its current form, the Act encourages violation of rights and criminal atrocities against the forest communities by encouraging tree plantations and other activities on lands that already belong to them, and over which the Gram Sabha has the legal rights and authority of management and conservation. In response to protests by tribal organizations and forest rights groups, the then minister of MoEFCC had assured the Rajya Sabha that the CAF Rules will ensure compliance with FRA and the decision-making authority of the relevant Gram Sabhas. The present draft rules renege on the assurance made by the minister and do not make clear provisions to incorporate FRA and the role of Gram Sabha in managing CA funds.
A study conducted by the CFR-LA on plantations under compensatory afforestation (CA) covering a macro-analysis of 2548 plantations across the country, and 129 case studies from the states of Odisha, Jharkhand, Maharashtra, Chhattisgarh, Andhra Pradesh and Gujarat reveal gross violation of rights of scheduled tribes and other traditional forest dwellers in implementation of CA.
Major objections to draft CAF rules
Draft Rules do not comply with FRA and PESA, and encourage land and forest rights violations
The Schedule V to the Constitution, PESA and the FRA provide for the democratic governance of land and forest resources by local communities who have traditionally lived in and used the forests for their sustenance. FRA, specifically, vests the right and authority to protect, regenerate, conserve and manage community forest resources (CFR) in the Gram Sabha and forest rights holders.Contrary to this, the CAF Act and draft Rules empower the forest bureaucracy with the management, administration and implementation of CA funds, thus violating Forest Rights Act and the constitutional and statutory rights of tribals and forest-dwelling communities.
(1) The Gram Sabha is the rightful authority to manage and administer CA funds, and not the forest department:
As per Section3 (1)(i) and Section5 of FRAthe right and authority to conserve, protect, manage and regenerate their community forests vests in the Gram Sabha and forest rights holders. Guideline issued by MoTA under section 12 of FRA for governance and management of CFRs clarifies that community forest resource areas constitute a new category of forest area to be governed and managed by Gram Sabhas and committees constituted under Rule 4(1)(e) of FRA, and require that CFRs of all villages with forests should be duly recognized. The guidelines require the state governments to make available funds under TSP, MGNREGA, CAMPA to the Gram Sabhas for development of CFRs.The draft Rules do not have provisions to ensure compliance with the rights and authorities of Gram Sabhas under the FRA, which requires the CA funds to be transferred to them for administration.
The draft Rules, under Rule 2(h), include a definition of ‘community forest management plan’. As the term is not used anywhere in the body of the Rules, the definition serves no purpose other than to undermine the authority of the Gram Sabha under S.5, FRA. The Gram Sabha is empowered to form a Conservation and Management Committee under Rule 4 (1)(e), FRA, which can prepare its own plans for forest conservation under the overall control of the Gram Sabha (Rule 4 (1)(f)). The provision must be removed to prevent misuse of the provision.
(2) Definition of Gram Sabha under draft Rules violates FRA:
FRA defines the Gram Sabha as an assembly of all adult persons of a village with the full and unrestricted participation of women. Village is further defined to include village as defined under PESA in Scheduled Areas, forest villages, old habitations or settlements, unsurveyed or traditional villages. The draft Rules, instead, gives a broad definition of Gram Sabha as per Article 243(b) of the Constitution, allowing Gram Sabhas at the level of the Panchayat,which could include multiple revenue villages with thousands of members. This restricts rightsholders from exercising direct management and control over forests.
(3) Draft Rules do not have provision to ensure recognition and vesting of rights of tribals and forest-dwelling communities while carrying out compensatory afforestation:
As per the aforementioned study by CFRLA, CA plantations have been widely set up on the claimed and titled forest land under FRA in many states. These include individual forest land and community forest resources, common lands, forests accessed for non timber forest produce, pastures and grazing grounds, as well as sites of religious and cultural significance. In many instances, access to these lands is prohibited or heavily restricted, preventing the exercise of forest rights, and leading to criminal atrocities under S.3(1)(g) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (PoA). Further, as per Guideline F.No.11-423/2011- FC, dated 8th November 2017, the Ministry of Environment, Forest and Climate Change has also permitted the creation of land banks out of degraded and/or revenue forests, on which communities have recorded rights, for CA purposes. CA plantations are thus leading to gross land and forest rights violations of forest-dwelling communities. The draft Rules do not have any provision to ensure protection of legal rights of communities over customary forests.
The CAF Act and the draft Rules also provide for the use of CA funds for the relocation of villages within protected areas. This is completely illegal and in contravention of Section 4, FRA, which provides that no rights can be modified or resettle until the process of rights recognition is complete. Relocationshould rightly be included as a prohibited activity under Rule 5(6), for which CA funds cannot be used.
(4) Draft Rules illegally limit application of FRA to select areas:
The draft Rules limit the application of FRA by suggesting compliance ‘wherever applicable’. FRA, under section 4 (1) recognizes and vests rights in forest dwelling scheduled tribes and other traditional forest dwellers in respect of all forest rights mentioned in section 3 over all types of forest land. Further FRA provides for a framework for recording the forest rights so vested and ensures protection of the rights while verification and recognition is completed. Therefore it is clear that FRA applies to all forest lands where tribals and forest dwellers have traditional and customary rights including land on which titles have been granted under FRA as well as forests over which claims are currently pending, or over which communities have pre-existing rights but have not initiated the claims process. It is estimated that the minimum area (where direct recorded evidence already exists) of forests over which governance and management rights of the Gram Sabhas under FRA can immediately be recognized is over 47% of India’s forests. The draft Rules however seek to limit compliance only to those areas where the titles of rightsholders have been formally recognized (titled), which is a mere 3% of the minimum potential of FRA.
Draft Rules dilute the constitutional and statutory requirement of free, prior and informed consent of Gram Sabhas
The Draft Rulesprovide that CA activities will be “taken up in consultation with the Gram Sabha or Van SamrakshanSamiti or Village Forest Committee as the case may be, and shall be in consonance with the provisions of the [FRA] wherever applicable”.
(1) Mere consultation is not equal to free, prior and informed consent:
Requiring mere consultation is a violation of the constitutional and statutory rights of forest-dwelling communities under the Fifth Schedule of the Constitution, Panchayat (Extension to Scheduled Areas) Act (PESA) and FRA, which decentralizes governance of lands and forests with the local communities. As mentioned above, S.3(1)(i) and S.5, FRA empower the Gram Sabhas of all STs and other forest-dwelling communities to conserve, protect, manage and regenerate their customary forests. The Supreme Court held in the case of Orissa Mining Corporation v. Ministry of Environment, Forests and Climate Changethat the Gram Sabha is the rightful authority to take decisions relating to the protection of rights of forest-dwellers, as well as the protection and conservation of the forests. This makes mandatory the requirement of obtaining the free, prior and informed consent of Gram Sabhas for any activities on their customary lands. The MoEF’s own order F. No. 11-9/1998- FC(pt) dated 03.08.2009 expressly stipulates that the use of and forest land for non-forest purpose requires prior recognition of forest rights, and the free, prior and informed consent of Gram Sabhas, in the local languages.
As per evidence collected from the states in the aforementioned study, the prior consent of the Gram Sabha was not sought in an overwhelming majority of the cases in Odisha, Jharkhand, Chhattisgarh, Andhra Pradesh and Gujarat. Rightsholders also do not have any prior information on proposed and actual plantation activities. There are also instances in Odisha, Maharashtra and Chhattisgarh, where consent from the community and gram sabhas has been obtained through fraudulent and coercive means.
(2) Absence of participation in decision-making has an adverse impact on livelihoods of rightsholding communities:
The requirement of mere consultation restricts the ability of rightsholders to participate in decision-making relating to their rights and livelihoods. Communities widely report livelihood and food distress on account of monoculture plantations of commercial species such as teak and eucalyptus on cultivation land and community forest resources. This destroys local biodiversity and limits access to their resource base, which fulfills essential needs for income, food, medicine, fuel and firewood, NTFP, grazing pastures.
(3) VSS and JFMC cannot substitute Gram Sabhas
Consultation with Gram Sabhas can be bypassed under the draft Rules, as consultation is proposed with Gram Sabha or the Van SamrakshanSamitis (VSS) or Joint Forest Management Committees (JFMCs). Equating Gram Sabha, which is a statutory authority established by FRA and PESA, with VSS/JFMC, which are not legal bodies, is a blatant violation of law. They are not lawful authorities to consult regarding CA activities. As per our study, in Odisha, Maharashtra, Chhattisgarh and Jharkhand, the Forest Department has adopted this practice of obtaining consent of JFMCs by bypassing the Gram Sabhas, which is a violation of FRA.
Apart from the above objections and concerns on the CAF Rules we would like to submit the major demands made by forest rights groups to the government to,
- Repeal CAF Act or amend it to ensure compliance with the Forest Rights Act; ensure that forest rights are duly recognized and vested before land is used for CA plantations
- Ensure that all accumulated CA funds are democratically managed and administered by transferring to the Gram Sabhas empowered to manage and conserve forests, and, at the minimum, all activities with the fund must be done with the free, prior and informed consent of Gram Sabhas;
- Those illegally evicted and/or relocated for CA plantations must be restituted and compensated
- Immediate withdrawal of Guideline F.No.11-423/2011- FC, dated 8th November 2017 for creation of land banks for CA purposes from revenue and common lands.