News and Image source: Business Standard January 8, 2016
Setting a precedent for the entire country, the Union tribal affairs ministry has revised its views to re-interpret the Forest Rights Act (FRA) and allow the Maharashtra forest department to get control back over forest management and a grip on the lucrative trade worth crores in forest produce such as tendu leaves and bamboo. The ministry had previously concluded that only tribals and other forest dwellers had rights to manage their forests under FRA.
But after a meeting in November at the Cabinet Secretariat between the environment and the tribal affairs ministries, the latter has made a turnaround and re-interpreted the legal provisions of FRA to give the state government control back over the forests with some conditions. The move also comes after personal intervention by two Union ministers from Maharashtra, Nitin Gadkari and Prakash Javadekar. The latter is the environment and forests minister, which gave his ministry a say in the issue. Gadkari does not hold a portfolio that is involved in issues of forestry.
In 2014, the state government had passed regulations that ensured its forest department retained control over forest management, which includes the large-scale trade and sale of forest produce. The tribal affairs ministry found this in violation of FRA, which empowers tribals and other forest-dwellers to hold sole rights to manage the forests, including sale of forest produce in areas where they have traditional claims. The tribal affairs ministry repeatedly told Maharashtra that its rules were prima facie in violation of and irreconcilable with the law.
This could now open the Pandora’s box with some states such as Madhya Pradesh having already followed suit to put similar regulations in place and states such as Jharkhand, Chhattisgarh and Odisha working towards such rules as well.
Business Standard reviewed correspondence within the Union government and records of the meetings held that show how the turnaround was facilitated over less than a year after a relentless pursuit by Maharashtra, interventions of the Cabinet ministers. Javadekar is the Union minister for forests, environment and climate change.
Maharashtra holds significance in this issue. It was in Gadchiroli district that rights over the forest produce were first effectively given to some tribal villages under the United Progressive Alliance government. The tribal villages auctioned and collected crores from the sale of bamboo in the few villages.
The erstwhile Planning Commission had estimated in one of its report that the annual trade in forest produce is estimated to be around Rs 50,000 crore. Before FRA was legislated, the trade was almost entirely regulated and controlled by state forest departments, which used to sell these goods through contractors, traders and contractors for industrial use such as beedi making or paper and pulp manufacturing. Tribals were paid wages for extracting the forest produce and substantially lower shares of revenue in some states. The FRA was meant to break this monopoly of forest department and contractors and to recognise rights of tribals and other communities to manage forests — a practice legalised in many other forested parts of the developing world where indigenous people have traditional rights.
Responding to complaints from Maharashtra over the rules called the Maharashtra Village Forest Rules 2014, the ministry of tribal affairs in August 2014 wrote that these regulations were prima facie in violation of FRA and should be kept in abeyance.
Reacting to this, in August itself, Gadkari and Javadekar wrote to the tribal affairs ministry to withdraw its opposition to the state regulations. At that time, the tribal affairs ministry did not relent and reaffirmed that the rules “encroached upon and are irreconcilable with FRA and the Panchayat Extension to Scheduled Areas Act or PESA”. Maharashtra did not back off. It sent legal advice from additional solicitor general Pinky Anand, which disagreed with the tribal affairs ministry. The ministry stuck to its guns and wrote back that it had sought legal advice too and had concluded Anand was wrong: the rules violated the FRA and were unconstitutional. It gave a detailed explanation on the several provisions of the FRA that were violated by Maharashtra’s rules which gave control over forest produce to the forest department.
But documents show that on November 17, 2015, the Cabinet Secretariat called a meeting of the tribal affairs ministry and the Union environment ministry after which the tribal affairs ministry finally relented. It passed two orders subsequently on November 27 and December 8 stating its altered stance. A copy of the November order was also marked to the Prime Minister’s Office.
In November, it said it had taken note of the recommendations of the environment ministry and the Maharashtra government that other stakeholders too could have rights over forestlands besides tribals though the FRA did apply to all forestlands. It continued to say that there was overlap of powers and unresolved legal differences created by the Maharashtra rules but they “should harmoniously construed”.
Then in its December order it concluded, that as agreed in the meeting held in Cabinet Secretariat, it would approve the rules of the Maharashtra government with some amendments. The amendments would state that the rules would apply where rights of tribals are not pending or claimed or gram sabhas (village councils) have concluded that no future rights are likely to be claimed. Earlier, it had opposed the rules reading them along with draft gram sabha resolutions prepared by the state government and said the rules required approval of the President of India as they encroached on the two central laws that expressly over-ride other legislations.
The tribal affairs ministry in its U-turn went a step ahead and said the ministry of environment and forests should now prepare a new code for sustainable management of forest resources. For long it has argued that rule making under FRA fell in its domain and traditionally the forest department has been seen antagonistic to letting go of control over forestlands to tribals and other forest dwellers. Till the code is developed by the environment ministry, the state government and others can now carry on with implementing its own rules even if they are legally unresolved by reading them in ‘harmony with forest rights recognised and vested under FRA’.
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