The story so far:
After the National Commission for Scheduled Tribes (NCST) invoked its constitutional power to requisition detailed Forest Rights Act implementation reports from the Supreme Court, the Registrar has ordered the release of documents to the NCST. The ST Commission is caught in a row with the Union Environment Ministry over the Forest Conservation Rules (FCR), 2022. The row is over the potential violation of provisions enshrined in the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 dubbed the Forest Rights Act (FRA).
What is the Act and the rules?
The Ministry of Environment, Forests and Climate Change in June 2022, notified the Forest (Conservation) Rules, 2022, which prescribed the mechanism for the diversion of forest land for non-forest purposes. These amended rules have omitted a clause (present in 2014 and 2017 Rules) that explicitly required any proposal to mandatorily have the consent of local tribespeople and other traditional forest dwellers (OTFDs) of the area, before proceeding for Stage 1 clearance. The FCR, 2022 has allowed entities to go for the consent of locals, after Stage 1 or even after Stage 2 clearance. According to the FRA, 2006, in case of a dispute over forest land, precedence has to be given to the rights of STs and OTFDs, over any other party.
What is the NCST demanding?
In September, 2022, NCST Chairperson Harsh Chouhan shot off a letter to Environment Minister Bhupendra Yadav, highlighting the potential consequences of FCR, 2022, recommending that they be put on hold and the previous Rules, which provided for the consent clause, be strengthened. The ST panel argued that the previous versions of the Rules provided a legal space for “ensuring completion of the processes for recognition and vesting of rights under the FRA in areas where forests are being diverted.”
The ST Commission noted that it made little sense to take the consent of tribals and forest dwellers after an applicant had got Stage 1 clearance. By then, the applicant would be invested in the project and would then have the incentive to “pursue the State Governments or Union Territories” to divert the land at the earliest, it said. Further, the NCST found that even under the old rules, FRA compliance was in trouble. It said currently, nearly 25,000- 30,000 hectares of forest land was being diverted every year. It cited a study by the Centre for Environment and Development, ATREE to note: “Out of 128 applications for forest diversion for mining, over 100 had been processed between 2009 and 2018.” It added that 74 proposals had Stage 2 approval, 46 had Stage 1 approval (in-principle), with just five rejected and four closed for other reasons. None of the rejections was for non-compliance of FRA. The study also found that 14 of these cases had been cleared with an FRA compliance report, despite this being far from the “ground reality”.
Mr. Yadav wrote back to the NCST chief insisting that FCR, 2022 does not violate any provisions granting land rights to STs and OTFDs.
