Governance

Tribal affairs ministry gives in to pressure, ‘okays’ Village Forest Rules

These rules, if implemented, will lead to dilution of the Forest Rights Act

 
By Shruti Agarwal
Last Updated: Tuesday 12 January 2016

According to the VFR, any community that has not submitted its claim will find its forest rights appropriated by the committee established under VFR (Photo: Aparna Pallavi)

The campaign for rights under the Forest Rights Act (FRA), 2006, received yet another setback in November 2015, according to government orders which recently became available in the public domain. The Ministry of Tribal Affairs (MoTA), the nodal agency for the implementation of the Act, issued a memorandum endorsing the Village Forest Rules (VFR) notified by Maharashtra in May 2014. VFR seeks to involve the Forest Department in the management of community forest areas in “collaboration” with the communities.

In the memorandum dated November 27, 2015, MoTA acknowledged that there are multiple stakeholders and right holders on forest lands in addition to the forest dwelling communities defined under the FRA. This declaration has created outrage among forest rights activists who see MoTA’s stance as another step to diluting the FRA.

VFR was enacted by the colonial government under the Indian Forest Act, 1927. For 90 years after its enactment, VFR has existed almost only in text. Therefore, a sudden push for its speedy notification in Maharashtra has raised many eyebrows. In May 2014, the Maharashtra government managed to notify the VFR despite strong opposition from Gram Sabhas, tribal and forest rights activists and civil society organisations. Since then, MoTA, the Ministry of Environment, Forests and Climate Change (MoEFCC) and the Maharashtra state government have gone back and forth on the applicability, legality or illegality and conflict of VFR when read with the FRA. (See ‘Timeline’)

Timeline

  • May 13, 2014: Maharashtra government notifies the Indian Forests (Maharashtra) (Regulation of assignment, management and cancellation of village forests) Rules, 2014, also called the Village Forest Rules.
  • August 13, 2014: MoTA issues a letter stating that the Rules were prima facie in violation of the Forest Rights Act, 2006.
  • August 19, 2014: MoTA receives communication from Ministry of Rural Department (MoRD), Panchayati Raj and Drinking Water and Sanitation and also the Ministry of Environment, Forests and Climate Change (MoEF&CC) asking it to withdraw the letter.
  • December 5, 2014: MoTA tells the principal secretary (forest), Government of Maharashtra, that the said rules encroach upon and are irreconcilable with the provisions of FRA and Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA).
  • January 21, 2015: MoTA receives communication from the chief minister of Maharashtra, informing it that legal opinion is in favour of Village Forest Rules, as rendered by Senior Advocate Pinki Anand.
  • April 8, 2015: MoTA receives a copy of the legal opinion.
  • May 19, 2015: MoTA provides point-by-point rebuttal of the legal opinion and reiterates its stand that VFR is in direct conflict with provisions of FRA.
  • November 27, 2015: MoTA does a u-turn and states that the overlapping provisions of VFR and FRA must be harmoniously construed.
  • December 8, 2015: MoTA issues another memorandum endorsing that a Gram Sabha could pass a resolution stating that no forest rights are likely to be claimed.

From conflict to harmony: What does the law say?

MoTA’s endorsement of harmoniously interpreting the overlapping provisions of VFR and FRA is perhaps a utopian ideal. When analysed through a legal lens, the VFR rules are in direct violation of FRA provisions.

Under the Forest Rights Act, Gram Sabhas are empowered to formulate rules for preservation, protection, management and conservation of their Community Forest Resource. The VFR rules, however, provide that the Gram Sabha will divest itself of all its statutory powers and responsibilities in this regard. MoTA has, in its latest memorandum, asked MoEFCC to develop rules for community forest management, giving away the Gram Sabha’s most crucial power under FRA.

The Forest Rights Act also contains no time limit for any community of forest dwellers to submit its claims. However, according to the VFR, any community that has not submitted its claim will find its forest rights appropriated by the committee established under VFR. In fact, the memorandum issued by MoTA on December 8, 2015 states that a Gram Sabha could pass a resolution stating that no forest rights are likely to be claimed.  This is important because VFR implementation can only be initiated by the state government where the process of recognition and vesting of individual and community rights under FRA is complete. The scope of misuse of this provision is immense.

Rights once recognised under the Forest Rights Act cannot be taken away by the Executive under any circumstances. Surrendering of rights by forest dwellers, whether voluntarily or otherwise, is not provided for. The VFR, however, provides that these forest rights can be withdrawn by the state government under certain conditions. MoTA’s latest memorandum does state that surrender and cancellation of rights under VFR would be contrary to the letter and spirit of FRA but does not provide any corrective measure against it.

The right to harvest and dispose forest produce lies with the Gram Sabha under the Forest Rights Act. VFR vests this right with the Joint Forest Management Committee.

The MoTA letter in May 2015 strongly condemned the VFR provisions to suspend the rights of Gram Sabhas in case they did not adhere to the extraction and regeneration prepared by the Forest Department. The letter stated, “Such an approach cannot, under any circumstances, be harmonised with the provisions of the Forest Rights Act, nor indeed with its objectives as articulated in the Preamble.” However, the November memorandum states that such overlapping provisions be “harmoniously construed”.

But who will strike this harmony?

VFR: Why now?

It is obvious that MoTA is giving in to pressure from other ministries in the Cabinet, including MoEFCC, MoRD as well as the Transport ministry. Why are other ministries so concerned?

“Since the Nyamgiri judgment, the industry lobby, which is having its heyday in the current regime, has become alert. Realising that the empowered Gram Sabhas can be an impediment to their growth, they are now working closely with the government to dilute the power of the Gram Sabhas, while they are still in the process of being strengthened,” said Mohan Bhai Hiralal, a forest rights activist from Gadchiroli, Maharashtra. “Maharashtra was the first state to recognise community forest rights in Gadchiroli. The control of forest produce shifted from the Forest Department to the Gram Sabhas and the revenue generated from its trade was going directly to the communities. The Forest Department sees it as their loss and is, therefore, attempting to regain control of it through VFR,” he added.

Forest rights activists and civil society organisations, who celebrated MoTA’s position in May 2015, are clearly disappointed. They worry that the implementation of VFRs will take away the power to govern and manage forests from the Gram Sabhas and hand it back to the Forest Department. “The memoranda endorse an illegality, which the ministry had earlier opposed. This would now enable the Forest Department to implement VFR not only in Maharashtra, but also other states in complete violation of FRA and other constitutional rights of tribals and forest dwellers. That the MoTA has allowed for violation of FRA is a matter of grave concern,” said Tushar Dash, a forest rights activist from Vasundhara, Orissa.

Is government undoing what is right?

The Forest Rights Act was born out of a long struggle of forest communities for recognition of their rights in the forest. The enactment of FRA was done to correct the historic injustice done to tribals and other forest dependent communities by the colonial forest policies. Hailed as a progressive legislation, FRA was slowly and steadily restoring the faith of forest dependent communities in their rights. However, powerful lobbies and vested interests have made multiple attempts to dilute the Act. Two steps forward, one step back—that has been FRA’s story so far. It remains to be seen how MoTA’s latest stance will impact both the FRA implementation process and more importantly, the faith of forest communities.

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