Once overruled by the PMO, Tribal Affairs ministry reiterates: Easing forest clearance entirely defeats FRA

The Indian Express, 10 March, 2015

In a last-ditch effort to stop moves that it says will “entirely defeat the purpose” of the Forest Rights Act (FRA), the Ministry of Tribal Affairs has strongly objected to the revised guidelines for forest clearance that the government is in a hurry to notify.

Prepared by the Ministry of Environment and Forests (MoEF) after a push from the Prime Minister’s Office, the new rules will ease the forest clearance process by limiting powers of the gram sabhas to decide on development projects.

Pointing out that the revised guidelines are “contrary to the law as laid down in the FRA” and “constitute an encroachment upon the judiciary and the legislature”, the Ministry of Tribal Affairs in a seven-page note sent to the Department of Legal Affairs on March 5, said it “cannot agree to the issuance of the MoEF draft as an executive instruction in any form”.

The note is the ministry’s last opportunity to reiterate its stand as the final guidelines will now be cleared by the Law Ministry for the MoEF to notify. As first reported by The Indian Express on February 24, this was decided at a meeting chaired by Nripendra Mishra, principal secretary to the PM, on January 12.

The MoEF sent the draft revised guidelines to the Department of Legal Affairsand Ministry of Tribal Affairson February 17. The revised guidelines sought to delink the statutory processes under the FRA and Forest Conservation Act (FCA), allow panchayats or district councils to decide where gram sabhas have not been constituted, and exempt a rangeof projects in non-Fifth Schedule areas from gram sabha’s consent.

Commenting on the draft, the Ministry of Tribal Affairssaid that laws do not operate in a vacuum and the FRA and FCA cannot be applied without reference to each other.

Arguing that “there is no evidence to show that FRA is resulting in delays for forest clearance”, the note said that compliance with FRA after the Stage II approval for forest clearance — as proposed by the MoEF — will make the decision-making powers of the gram sabha redundant.

The Ministry of Tribal Affairsfurther pointed out that the FRA does not distinguish between Scheduled and non-Scheduled areas and any exemption from application of FRA would be illegal. It also referred to a numberof Supreme Court orders interpreting the FRA as binding precedent — under Article 141 of the Constitution — to point out that violation of these orders will not be legally tenable.

On December 4, 2014, after repeated protestation by the Ministry of Tribal Affairson this issue, Environment Minister Prakash Javadekar had written to Tribal AffairsMinister Jual Oram, attaching a draft for comment. On December 28, Oram’s ministry responded with its own guidelines that differed from the MoEF draft on three keyissues: a District Level Committee under FRA, not District Collector, to certify if process of recognition and vesting of forest rights is complete; no exemption to linear projects, and no exemption to projects in areas that houseScheduled Tribes since the FRA also applies to Other Traditional Forest Dwellers.

On January 12, overruling the objections, the PMO asked the MoEF to “formulate a draft guideline delineating the FC (Forest Clearance) process” and send to Department of Legal Affairs“for legal vetting and to MoTA for its views”. The Ministry of Tribal Affairswas told to send its “views directly” to the Department of Legal Affairswhich would finalise the revised guidelines and send to MoEF “for issue”.