Constitutional Powers of NCST

Amidst the conflict between the new Forest Conservation Rules (2022) diluting the old Forest Rights Act, of 2006, the National Commission for Scheduled Tribes (NCST) has now secured FRA implementation reports of all States and Union Territories by invoking its Constitutional powers to directly approach the Supreme Court of India.

• The NCST had written to the Environment Ministry in September 2022, asking that they be put on hold on Forest conservation rules of 2022, because it will invariably violate provisions of the FRA, which ensures that ownership of forest land remains with tribes people and other traditional forest dwellers (OTFD), who live off the forest and its resources.
• Amidst this, the ST Commission wrote to the Supreme Court Registrar, invoking powers under Clause 8d of Article 338A, to seek all materials filed before the court in connection with a batch of petitions challenging the constitutionality of the FRA.

What does Section 338A say?

According to Article 338 A, there shall be a Commission (National Commission for the Scheduled Tribes) for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes. It shall be the duty of the Commission to:

• Investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
• Inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
• Participate and advise on the planning process of socio-economic development of the Scheduled Tribes and evaluate the progress of their development under the Union and any State;
• Present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
• Make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and
• Discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

The Forest Conservation Rules, 2022:

• These rules, “streamline” the process of approvals.
• The rules make a provision for private parties to cultivate plantations and sell them as land to companies who need to meet compensatory forestation targets.
• It will help India increase forest cover.
• It will also solve the problems of the States of not finding land within their jurisdiction for compensatory purposes.
• The concerned update sought to limit the necessity for consent from the gram Sabha. Accordingly, the States will ensure the “settlement” of Forest Rights Acts applicable.

How will the new rules affect tribal rights?

• Missing elements of tribals and forest-dwelling communities: The updated Forest Conservation Rules don’t talk about the tribals and forest-dwelling communities whose land would be hived off for developmental work.
• The new rules allow the Union government to permit the clearing of a forest for a project before prior consent of the forest dwellers, as mandated under the 2006 Act.
• Earlier the state bodies would forward documents to the FAC that would also include information on the status of whether the forest rights of locals in the area were settled.
• Earlier such proposals would not be entertained by the FAC unless there was approval from the State specifying that the forest rights in the place had been “settled” and the Gram Sabha, or the governing body in villages in the area, had given their written consent to the diversion of the forest.
• The new rules will dilute the Forest Right Act, of 2006.
  • It will disempower forest tribals and may displace them: The update will limit the necessity for consent from the gram Sabha. Many forestry experts say it may imply that the consent of the resident tribals and forest dwellers may not remain a deciding factor.