By Manohar Chauhan*
These draft Compensatory Afforestation Fund (CAF) Rules are in direct violation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (the Forest Rights Act); the SC/ST (Prevention of Atrocities) Act, as amended in 2015; the Fifth Schedule of the Constitution; the Panchayats (Extension to Scheduled Areas) Act, 1996; and several other applicable provisions of law and the Constitution.
As the Forest Rights Act (FRA) applies to all forest lands, any activity in any forest land needs to comply with the provisions of the Act as violating the same comprises an offense and denial of rights of STs & SCs is an atrocity under the Prevention of atrocities Act.
Further, remarkably, despite the Ministry of Tribal Affairs being the nodal ministry for the FRA, there is no provision for it being represented in any of the steering/management committees to be constituted for implementation of the CAF Act at either the central or state levels.
Violation of the Area covered by the Forest Rights Act
Instead of requiring compliance with the Forest Rights Act and specifying how such compliance should be achieved, the draft just generally says compliance with the Act should happen “where it is applicable.” The Forest Rights Act is applicable to all forest lands in India. The Rules seem to imply that the Act only applies in areas where rights have already been recorded – which is manifestly incorrect, given the language of section 5 (regarding protection of forests) of the Act in particular and also of sections 4(1) and 3(1) (regarding rights). In fact the FRA Rules clearly require that community forest resource (CFR) rights under section 3(1)(i) must be recognised for all villages with forests. According to the Ministry of Environment, Forest and Climate Change’s own admission, “The Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 assigned rights to protect around 40 million hectares of community forest resources to village level democratic institutions.” (Ministry of Environment, Forests and Climate Change. Government of India., ‘Asia-Pacific Forestry Sector Outlook Study II, India Forestry Outlook Study’ (Bangkok, 2009), 75-6 available at http://www.fao.org/docrep/014/am251e/am251e00.pdf).
Any activity under the CAF Rules by the State Forest Department on forest land and non-forest land (as referred to in provisos to CAFA draft Rule (5)) amounts to change in land use which inter alia results in violation of existing forest rights as referred to under FRA or any land rights under any other land laws in force and are offencesand, if they pertain to the Scheduled Tribes, also criminal offences under the ST and SC (Prevention of Atrocities) Act 1989 as amended in 2015. Violations of rights under FRA are also offences under Sec.7 of FRA. For local communities dependent on that land CA plantations can result in major changes in land use that negatively impact their forest dependent livelihoods. Widespread plantation of exotic tree species in natural grasslands classified as forests and considered ‘blanks’ by forest departments, or replacement of diverse local MFP bearing species with commercial monocultures of teak, acacia and bamboo, have already been resulting in loss of access to fodder/grazing/MFPs besides such plantation areas being fenced off leading to total denial of access to such areas.
As per Article 300A of the Constitution, disturbing or destroying the rights of any forest dweller is illegal and a criminal offence unless there is a procedure established by law for doing so. Neither these Rules nor their parent Act make any reference at all to this requirement. This will lead to further illegal actions and to litigation.
Violation of the Authority of the Gram Sabha
The Forest Rights Act mandates that gram sabhas have both the right and the power to protect, manage and conserve forests (sections 5 and 3(1)(i)). The Act also recognises forest dwellers’ rights over common and individual forest lands (sections 3(1) and 4(1)). Under the Act, the authority to initiate the process of recognition of rights is the gram sabha. Reading all these provisions together, it is clear that any significant change in or damage to forest ecosystems requires, first, that the gram sabha certify that the process of rights recognition is complete, and, second, that it consents to such a change. Doing anything less than that amounts to saying state agencies can simply take away or destroy forests that forest dwellers have rights over and would amount to nullifying either section 4(1) or section 5 of the Forest Rights Act. It is on this basis that the Ministry of Environment, Forests and Climate Change had itself issued its order of 03.08.2009 requiring that these conditions must be met prior to any diversion of forest land. Even the Supreme Court, in its judgment in the Niyamgiri case, has stated that it is the gram sabha which must decide whether any changes in its customary forests are acceptable to it or not. It is clear that the same conditions would apply to any afforestation or other activities undertaken under the CAF Act on forest land, and indeed this point was raised in the Rajya Sabha by the opposition parties.
Therefore the CAF Rules must make it mandatory that before undertaking any activity with CAF funds, the following must be ensured:
(a) Recognition of all rights under FRA on forest lands and under relevant land laws in the case of non-forest lands are completed in all respects and entered into the record of rights,
(b) Free and prior informed consent of the concerned rights holders, viz. individuals, communities and Gram Sabhas (as defined under FRA and not the Gram Sabha defined under CAFA draft Rule 2(m)), and on the agreed terms and conditions as the case may be with the Gram Sabhas through resolutions as per FRA Rule 4(2); and
(c) Compensation for the acquired rights on market terms determined and agreed to by the concerned right holders.
Undermining the Gram Sabha’s decision making capability by re-defining it
The draft rules undercut the definition of the gram sabha. These Rules say gram sabhas should be taken to be as per Article 243(g) of the Constitution, which defines the gram sabha for its purposes as the assembly of all voters in a panchayat. This may be a very large number of people scattered over several revenue villages. Such a “gram sabha” is an impractical decision making body that may have many thousands of members spread across a large area, especially in tribal regions. For this reason, the Constitution specifically excludes Fifth Schedule areas from this definition and mandated Parliament to provide a different definition for these areas – which in turn was done through the PESA Act, which defines the gram sabha to be the assembly of a hamlet or habitation. The Forest Rights Act also utilises this definition in Scheduled Areas while providing that in other areas, including forest villages and unsurveyed villages on forest land, each village should have its own gram sabha comprising of all resident adults. These Rules return to a definition of an unworkable body, clearly in an attempt to ensure that the process can be rendered meaningless and easy to manipulate. The definitions of both village and gram sabha provided in the FRA must be respected to ensure that the gram sabha can function as an effective forum for collective decision making.
Vague and Largely Meaningless Provisions on Consultation
While providing for consultation, the draft says nothing about how “consultation” should be done, and does not even refer to consent – or to the course of action that will be taken if gram sabhas refuse to give their consent. There is also no description of what proof will be required to show that consent was taken or, indeed, that gram sabhas were consulted at all. As a result, under these rules, plantations can take place and projects can be built on areas over which forest dwellers have rights or which they are managing and protecting. This is a direct incitement to illegal activities.
The draft offers officials the option of consulting either gram sabhas or “Van Sanrakshan Samitis” or Village Forest Committee or Joint Forest Management Committee. These ‘Joint Forest Management’ committees have no basis in law. They are controlled by the Forest Department, since the forest guard is the secretary and joint account holder of such committees. In the past, including in its Frequently Asked Questions on the Act, the Ministry of Tribal Affairs has taken the clear stand that no equation can be drawn between JFM Committees and gram sabhas, which are statutory authorities under the Act. However, these draft Rules illegally provide for consultation with JFM Committees.
The CAF draft rules also define a “community forest management plan”, although there is no mention of the same in the main body of the rules. This seems to be an attempt to undercut the power of the gram sabha to elect its own forest conservation and management committee empowered to prepare CFR plans under the supervision and control of the gram sabha under FRA rules. This needs to be removed to prevent the misuse of this provision.
Exclusion of Compensatory Afforestation Funds
Finally, these Rules only refer to the money collected as the “net present value” (NPV) of forests being destroyed. There is no reference to the money collected for compensatory afforestation (CA) purposes under the Forest Conservation Rules. How are these funds to be spent, and will they be subject to any safeguards with respect to compliance with forest rights? It appears that they will not be.
In sum, these Rules, if operationalised in their current form, will lead to harassment, atrocities and crimes against tribals and forest dwellers, and hence to litigation, protests and conflict in forest areas. We request that they be withdrawn and reframed in accordance with law.
*Based on the text of the submission to the Ministry of Environment, Forests and Climate Change on behalf of the Convening Collective, Campaign for Survival and Dignity