Forest Conservation Rules help raze forests, rights and all in between
FCR 2022 will “shift onto state governments the Union’s responsibility of ensuring that the rights of tribals to their traditional forestlands are recognised and their consent taken” for razing of such forests
The Forest Conservation Rules 2022, notified by the Centre on June 29, have triggered protests by tribal rights activists, environmentalists and several Opposition parties. Yet, it is unlikely that the current opprobrium will force the Narendra Modi government to reconsider, at least in any substantial manner, what are evidently a set of flawed, even unconstitutional, rules.
The new rules, which replace the FC Rules of 2003 and various amendments made to them in subsequent years, make a mockery of the Forest Rights Act, 2006 and its reading by the Supreme Court. In a major departure from the hitherto existing legal framework for granting Stage II clearance to public and private projects in forest areas, the FCR 2022 would allow the Centre to approve such projects without seeking the FRA and Supreme Court mandated prior consent of forest dwellers and the concerned gram sabhas.
Onus on state governments
As first reported by Land Conflict Watch, an independent network of researchers studying land conflicts, climate change and natural resource governance in India, the FCR 2022 will “shift onto state governments the Union’s responsibility of ensuring that the rights of tribals to their traditional forestlands are recognised and their consent taken” for razing of such forests.
Further, as opposed to the earlier norm of the Centre first verifying the consent of affected forest dwellers and ensuring that their rights are safeguarded before the forestland is handed over to a project proponent, the new rules will allow the Union to “approve the handover of the forest and collect payment for compensatory afforestation from the private developer even before the state government has settled forest dwellers’ rights and ensured their consent”.
In simple terms, if the concerned gram sabha or the tribals and other traditional forest dwellers (OTFDs) do not consent to giving up their forestland for a proposed project for fear of being robbed of their source of livelihood, being inadequately compensated or for any other justifiable reason, their opinion, under the FRC 2022, will not prevent grant of clearance to the project.
Scope for conflict
The Centre’s argument is that the required consent can be taken after the final approval (Stage II clearance) to begin a project is granted and that if the forest dwellers and gram sabha are against the project, it would be shelved despite the necessary clearance being given.
Critics argue that this procedure opens up scope not just for conflict between the population that is facing dispossession or displacement, the project proponent and the administration but also for protracted legal battles.
Besides, there is valid scepticism over whether a developer will want to invest in a project knowing that the work may be stalled even after the required permissions are obtained.
Worse, what if the project proponent clears out a substantial portion of the forest even before formalities for taking views and consent of the project-affected population are completed?
Opposition leaders, including Congress leader and former Union minister for environment and forests Jairam Ramesh, environment law experts as well as tribal rights activists have slammed the Centre for drafting a set of rules that seek to benefit a handful of private players and demanded that the FCR 2022 be scrapped in entirety.
K Raju, national coordinator for the Congress party’s SC, ST, OBC and minority departments has shot off a four-page letter to Harsh Chouhan, chairperson of the National Commission for Scheduled Tribes, detailing how the FCR 2022 violates constitutionally mandated rights of tribals and other forest dwellers, provisions of the FRA and judgments of the Supreme Court.
Arguing that the FCR 2022 will “lead to forest diversion across the states without settling the rights of tribals and other traditional forest dwellers (OTFDs)” and, thus, cause “disempowerment, dispossession and displacement” of such people leading to new conflicts in tribal areas, Raju has urged Chouhan to issue directions to the Centre “to withdraw the rules in public interest”.
The Centre, on its part, has refused to budge. Union environment and forests minister Bhupendra Yadav has asserted that the FCR 2022 does not violate the FRA 2006 in any way. Yadav’s ministry has, instead, set in motion the process of constituting a project screening committee in each state and Union territory for reviewing proposals involving diversion of forest land, as per provisions of the new Rules.
The Centre’s obstinate refusal to acknowledge valid grievances aired by critics against the new rules that were, in the first place, drafted without any credible consultation with stakeholders that such a policy overhaul should have warranted may seem ironic at a time when the ruling BJP is aggressively wooing the tribal community.
Knowing the chronology
However, the Modi government’s recent track record on critical policy and legislative initiatives that imperil the environment and threaten tribals/OTFDs with large scale displacement in the name of development establishes a clear pattern of wreaking ecological hara-kiri. To borrow a quotable phrase from an eminent member of the Modi cabinet — “aap chronology samajhiye” (you need to understand the chronology).
In June 2020, while the country was still grappling with a raging COVID pandemic, the Modi government decided to open up 41 coal blocks across the country for commercial mining. These coal blocks, 11 of them in Madhya Pradesh, nine each in Jharkhand, Chhattisgarh and Odisha and three in Maharashtra, are located within dense forest areas inhabited by a heavy concentration of tribal/OTFD populations.
The decision, taken after Modi’s big push for an Atmanirbhar Bharat (self-dependent India), not only opened up commercial mining for the private sector but also lifted all end-use restrictions on the 225 million tonnes of coal that these blocks could potentially produce annually.
The logic: the Centre estimated it could generate Rs. 33,000 crore in investments from private players over the next five years from these coal blocks. The new policy was also aimed at substantially reducing India’s need to import nearly 250 million tonnes of coal annually.
The arguments in favour of the Centre’s decision seemed rational. But then, that’s how governments usually try to win all debates over environment versus development and rights versus profits.
Like the FCR 2022, the Centre’s plan to open up these forests for coal mining by private players was taken without any consultation with tribal rights’ activists, environment experts or the in situ population and gram sabhas of the affected areas.
The decision did trigger a backlash from environmentalists, tribals and the Opposition but with the coronavirus-induced restrictions on public gatherings at the time, there were no street agitations against the move — not that they would have made any difference to the government.
Cost of private coal mining
The environmental cost that private commercial mining of coal would exact can be gauged from the fact that each of these blocks has a minimum 50 percent forest cover. Coal blocks like Morga II, located within Chhattisgarh’s Hasdeo Arand forests that have seen recurring protests by tribals against attempts by successive governments to exploit this mineral rich region, have 85 percent forest land. Similarly, the Gotitoria East coal block in MP has an 80 percent forest cover.
Critics had then pointed out that allowing commercial coal mining in these forests didn’t just put the ecology at grave risk or threaten the local population but was also constitutionally untenable as it denied Adivasis their constitutional right to self-govern.
The Panchayats (Extension to the Scheduled Areas) Act, 1966 and provisions listed under Schedule V of the Constitution define the role of gram sabhas as the primary decision-making body of a village. The Supreme Court had also, in 2013, held that ownership of minerals should be vested with the land owners (tribals and OTFDs) as the FRA defines forests as a community property of the gram sabha.
None of these arguments cut any ice with the Modi government. A few months later, the Centre dealt another body blow to both the environment and rights of forest dwellers. By August 2020, the Centre came out with its draft notification of the new Environment Impact Assessment (EIA) guidelines that sought to replace the UPA-era EIA 2006. An earlier draft had been released in March that year and put up for a three month window for seeking public opinion.
Essentially, the EIA is a regulatory framework that identifies the impact that a proposed project will have on the environment at large and the immediate ecology of the site in particular. It is meant to be an impartial assessment of both, the benefits and the negative consequences, of a proposed project, based on scientific surveys and consultation with stakeholders.
The EIA 2020 drew strong and unqualified criticism from all quarters — except, of course, the government. Noted environmental lawyer and founder of Legal Initiative for Forest and Environment (LIFE), Ritwick Dutta had famously described the “sole objective of EIA 2020” as a means to “prevent an environment impact assessment”.
The EIA 2020 had outraged interim Congress chief Sonia Gandhi enough to write a lengthy editorial for a leading national daily condemning the draft notification.
Three key criticisms
Broadly speaking, there were three major criticisms of EIA 2020 — none of which the Centre deemed fit to answer adequately. The draft notification allowed ex-post facto environmental approvals for operational projects that hadn’t adhered to applicable regulations. Secondly, a litany of activities — oil, gas and shale exploration, certain categories of hydroelectric, solar and irrigation projects, coal and mineral prospecting, small and medium cement plants, some categories of micro, small and medium enterprises (MSMEs), all inland waterway projects, expansion or widening of highways, aerial ropeways in ecologically sensitive areas, and specified building construction and area development projects (notably including Modi’s pet vanity project — the Central Vista) — were entirely exempted from EIA.
Under the EIA 2006, these activities would have required scrutiny by an Expert Appraisal Committee before getting necessary clearances.
Most significantly, the EIA 2020 draft stipulated that the public could not even report violations and non-compliance by project proponents and, instead, placed the onus of doing so on the violator himself or on the competent government authority or the regulatory authority.
Then in August 2021, much to the chagrin of green activists and evidently oblivious to the growing global outrage against diversion of natural forests for oil palm cultivation, Modi raised the same bogey of an Atmanirbhar Bharat to announce the National Edible Oil Mission-Oil Palm (NMEO-OP) claiming that it would yield an estimated investment of over Rs 11,000 crore.
Despite the scientifically established threats that oil palm cultivation poses to bio-diversity and red flags raised by the Indian Council of Forestry Research & Education against the Oil Palm Mission, the Centre has gone ahead full throttle with the scheme that now threatens to massacre the already fragile ecology of regions such as the Andaman and Nicobar Islands and the north eastern states where such cultivations will be concentrated due to conducive weather conditions.
Each of these major policy overhauls directly and adversely impact the environment as well as rights of forest dwellers. Each of them drew massive criticism — the EIA 2020 alone drew over 18 lakh suggestions for change within months of being notified.
Yet, in each instance, the Modi government couldn’t care less. And now, we have the FCR 2022 and the familiar outrage over the catastrophic impact it would have on the ecology and the violation of rights of tribals.
But then, the Modi government looks determined to brazen out the current storm in much the same way it has survived earlier criticism of putting development before environmental concerns and profits before the rights and livelihood of tribals. After all, in a few days, Droupadi Murmu will become the first tribal woman to be elected President of India and Modi made that possible.