National Commission for Scheduled Tribes’ position on new Forest Conservation Rules

Published
3rd Jan, 2023

Context

In the escalating conflict between the government and the National Commission for Scheduled Tribes (NCST) over the Forest (Conservation) Rules (FCR) 2022, NCST Chairperson has mentioned that the position of the body, on being violative of the Forest Rights Act, 2006 “will be the same”.

Recently, the Ministry of Environment has dismissed the allegations by NCST.

About Provisions of Forest (Conservation) Rules, 2022:

The Forest Conservation Rules deal with the implementation of the Forest Conservation Act (FCA), 1980.
They prescribe the procedure to be followed for forest land to be diverted for non-forestry uses such as road construction, highway development, railway lines, and mining.
For forest land beyond five hectares, approval for diverting land must be given by the Central government. This is via a specially constituted committee, called the Forest Advisory Committee (FAC).

Forest Advisory Committee (FAC):

It is a regional empowered committee at each of the integrated regional offices and a screening committee at the State/Union Territory (UT) government level.
This committee examines whether the user agency (applicants for diverting forest land) or those who have requested forest land, have made a convincing case for the upheaval of that specific parcel of land.
It also examines whether they have a plan in place to ensure that the ensuing damage from the felling of trees in that area, denuding the local landscape will be minimal and the said piece of land doesn’t cause damage to wildlife habitat.
If convinced the committee then forwards the proposal to the concerned State government where the land is located, which then has to ensure that provisions of the Forest Right Act, 2006, a separate Act that protects the rights of forest dwellers and tribals over their land, are complied with.

What do the updated rules say?

The new 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 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.

What were the allegations of NCST over the new rules?

According to NCST, the rules were framed under the Forest (Conservation) Act, 1980 and these rules being in violation of the Forest Rights Act (FRA), 2006 was ‘not legally tenable’.
The Minister added that the two statutory processes were parallel and not dependent on each other.
Citing Rule 9(6)(b)(ii), the government said the FCR 2022 already provides for diversion of forest land “only after fulfilment and compliance of all provisions, including settlement of rights under the Forest Rights Act” and also does not bar or infringe upon the operation of other laws mandating consent of Gram Sabhas.

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 the 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.

Government’s position:

The purpose of updating the rules is to “streamline the approval process.”
Fulfilling and complying with the FRA, 2006 was an independent process and it will not dilute or infringe on the provisions of the Forest Rights Act, 2006.
It could be undertaken by States “at any stage” of the forest clearance process and it also talks about compliance with provisions of the FRA before States order the diversion of the land.

Where comes the role of the National Commission On Schedule Tribe (NCST)?

Under Clause (5) of Art. 338A, the NCST has the following functions:

To investigate & Monitor matters relating to Safeguards provided for STs under the Constitution or under other laws or under Govt. Order, to evaluate the working of such Safeguards.
To inquire into specific complaints relating to the Rights & Safeguards of STs;
To participate and Advise in the Planning Process relating to the Socio-economic development of STs, and to Evaluate the progress of their development under the Union and any State;
To submit a report to the President annually and at such other times as the Commission may deem fit, upon/ working of Safeguards, Measures required for effective implementation of Programmers/ Schemes relating to Welfare and Socio-economic development of STs;
To discharge such other functions in relation to STs as the President may, subject to the provisions of any law made by Parliament, by rule specify;
The Commission would also discharge the following other functions in relation to the protection, welfare and development & advancement of the Scheduled Tribes.