Former environment ministry Prakash Javadekar. Photo: PTI
Two recent developments could be a sign that the Union environment ministry could be on the verge of retaking its lost turf – at least some of what it ‘lost’ to forest dwellers, the Parliament and the Ministry of Tribal Affairs in 2006.
On June 22, 2021, the environment ministry issued a tender calling for consultancy organisations to express interest in preparing a draft comprehensive amendment to the Indian Forest Act 1927. The government has used this draconian law of colonial vintage to constitute the forest and administer it. The ministry’s tender came after a short-lived attempt to push through an amendment to this Act in 2019.
In March 2019, the same ministry circulated a draft amendment to the Indian Forest Act 1927, to overhaul the 1927 version. Under its terms, forest staff could 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.
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 also override Forest Rights Act 2006 (FRA), a flagship law of the country.
Prakash Javadekar, the then environment minister, quickly disowned this draft in November 2020 in the face of widespread criticism. At the time, the Jharkhand assembly election was also around the corner. 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.” (Jharkhand has a sizable tribal population; Javadekar’s party, the BJP, lost the polls anyway.)
Perhaps realising that the ministry was no longer capable of drafting a civilised law, the onus to do so was being handed over to private firms. It is also possible the minister hoped that by privatising law-drafting, he could evade any public outcry.
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The FRA 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”.
The National Forest Policy 1988 also recognised “the symbiotic relationship between the tribal people and forests”. A decade and a half later, the FRA gave fuller expression to this goal.
But the environment ministry launched a frontal assault in March 2018 when it issued the draft National Forest Policy 2018 as a proposed replacement. Characteristically, this draft ignored the FRA and its gram sabha-based governance structures. It 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.
It took some months for the tribal ministry to respond. 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.
Indeed, on March 17, 2006, “all matters, including legislation, relating to the rights of forest dwelling Scheduled Tribes on forest lands” were 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. This put an end to the environment ministry’s ostensible monopoly over forests.
The tribal affairs ministry has said 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”.
Now, it confronts the new draft National Forest Policy 2020, which isn’t yet in the public domain.
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Another relevant development is that the tribal and environment ministries signed a ‘Joint communication for more effective implementation of the Forest Rights Act’ on July 6, 2021. 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 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”.
However, 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 – contrary to the law.
Stakeholders in this programme are closely watching what the environment ministry will do next, and how the tribal affairs ministry will respond.
C.R. Bijoy examines natural resource conflicts and governance issues.