Tug of war between two ministries, Adivasi rights slip through the cracks MoEF seeking to control autonomy over land and rights that MoTA was given in 2006?
30, Jul 2021 | CJP Team
On June 22, 2021, the environment ministry invited consultancy organisations to express interest in preparing a draft comprehensive amendment to the draconian and colonial Indian Forest Act 1927. The government has used this draconian law of colonial origin to weaponise the forest department and control land and produce actually devolved to traditional forest dwellers under the Forest Rights Act of 2006.
This announcement comes after unsuccessful attempts to push through an amendment to this Act in 2019. The announcement may be read here.
In March 2019, it was the same ministry that circulated a draft amendment to the Indian Forest Act 1927, to overhaul the 1927 version. This had invited widespread protests and sharp criticisms. These controversial amendments included provisions that allowed the officers of the forest department to shoot anyone in the name of forest protection, with little threat of criminal action. They could even terminate the forest rights of any forest-dwellers by paying them a paltry sum of money (section 22A (2), 30(b)). Forest officials could also raid and arrest without warrants and confiscate the property of any forest-dweller. If the forest department accused anyone of possessing any illegal objects, the accused would have to prove their innocence, not the accuser. The proposed amendments may be read here.
If this draft had become law, it would have ended the rule of law in India’s forests and turned them into grim battlefields. It would have deviously overridden the Forest Rights Act 2006 (FRA), a law enacted after a century and a half long battle of indigenous peoples of the country.
Prakash Javadekar, the then environment minister, was quick disowned this draft in November 2020, in the face of widespread criticism. With an eye on that, Javadekar said, “We are completely withdrawing the draft amendment to the Indian Forest Act to remove any misgivings; the tribal rights will be protected fully and they will continue to be the important stakeholder in forest development.” Jawdekar’s statrement may be read here.
It was then that the onus on drafting the changes was passed from government and its bureaucrats to private companies. The FRA 2006 recognises all conceivable forest rights except hunting, whether listed in the law. These pertain to the rights of individuals and the community and territorial rights of habitations. It effectively shifted the authority to protect forests, wildlife and biodiversity from the forest department to the gram sabha of these habitations. The law was enacted because “forest rights on ancestral lands and their habitat were not adequately recognised in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice”.
Eighteen years before in a significant policy shift, the National Forest Policy, 1988 –in tune with national and international evolving understanding around forest conservation and the rights of India’s indigenous peoples– also recognised “the symbiotic relationship between the tribal people and forests”. Then, the passage of the FRA gave fuller expression to this goal.
It was under the NDA II government, with its inherent policy to transfer public resources to private capital that the central environment ministry, in March 2018, released the draft National Forest Policy as a replacement of the 1988 document. This draft completely ignored the FRA and its gram sabha-based governance structures. It brazenly promoted commercial plantation-centric investments that sought to manage forests through private entities, under the rubric of private-public participation. The aim was to increase tree cover and productivity to meet industrial and other needs – at the cost of negating the fact that more than half of India’s forests are currently within the jurisdiction of gram sabhas. This draft policy may be read here.
It was several months and several protests before the tribal ministry responded. In June 2018, the tribal affairs secretary wrote to the environment secretary that the environment ministry doesn’t have “exclusive jurisdiction” to frame policies related to forests. In actual fact, 12 years before, on March 17, 2006, “all matters, including legislation, relating to the rights of forest dwelling Scheduled Tribes on forest lands” had been carved out from the subject of forests from the environment ministry, and transferred to the tribal affairs ministry’s jurisdiction through an amendment to the Government of India (Allocation of Business) Rules 1961.
These may be read here. This put an end to the environment ministry’s perceived monopoly over forests. MOTA is on record saying that the draft National Forest Policy 2018 “disregarded the traditional custodians and conservatives of the forests, namely, tribals” and that it gave “a thrust to increased privatisation, industrialisation and diversion of forest resources for commercialisation”. What is to follow now is a fresh confrontation between the MoEF and MoTA as can be gleaned in the New Forest Policy (2020), not public yet.
A recent joint communication by the tribal and environment ministries signed a ‘Joint communication for more effective implementation of the Forest Rights Act’ on July 6, 2021. This is what former environment minister Javadekar called this “a paradigm shift from one of working in silos to achieving convergence between ministries and departments”. Apparently, the result of discussions between the two ministries since August 2020, the ‘joint communication’ said that, henceforth, “both ministries may take a collective view on the matter including issuing joint clarification, guidelines, etc.”
However, all matters relating to forest rights on forest land are today under the tribal ministry. It is in fact the nodal ministry for FRA implementation. And it has asked frontline forest staff to assist the gram sabhas with preparing conservation and management plans for the forests under their respective jurisdictions. They are to “integrate such conservation and management plans with the micro plans or working plans or management plans of the forest department”. This is contrary to the law. Gram sabhas have a free hand to make their own plans and also “to modify the micro plan or working plan or management plan of the forest department”.
State governments have also been asked “to give suitable instructions” to the gram sabhas to harness the joint forest management committees to protect and manage forests. These are admittedly entities under the control of the forest department – but ultimately the gram sabhas have the authority to “protect the wildlife, forest and biodiversity”.
Taken together, the tribal affairs ministry has asked the forest bureaucracy to take control of FRA implementation at all levels – again contrary to the law. India’s traditional forest dwellers and Adivasis are closely observing what the environment ministry will do next, and how the tribal affairs ministry will respond.
Compendium of Judgments on the Forest Rights Act, 2006 (June 15, 2016)
Counter Affidavit filed by MoTa in support of tribal rights in the FRA