Forest (Conservation) Rules (FCR) 2022

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    • There is an ongoing conflict going on between the government and the National Commission for Scheduled Tribes over the Forest (Conservation) Rules (FCR) 2022.
      • The Commission says that the new rules are violative of the Forest Rights Act, 2006. 

    What is the National Commission for Scheduled Tribes?

    • It is a constitutional body in India that works to protect the rights and interests of Scheduled Tribes (STs).
    • The NCST conducts inquiries, investigates complaints and makes recommendations to the government on issues related to STs.
      • It is the Commission’s duty to intervene and recommend corrective measures whenever any rules run the risk of violating rights of tribal people. 

    Constitutional Provisions

    • 42nd Amendment Act 1976 of the Constitution: “Forests” was added as Entry 17A in the Concurrent List and the “protection of wild animals and birds” was added as Entry 17B.
    • Article 51A(g) states that it is the duty of every citizen of India to protect and improve the natural environment including the wildlife and to have compassion for the living creatures.
    • Article 48A of the Constitution of India imposes a duty on the State to protect and improve the environment and to safeguard the forest and wildlife of the country. 

    What is the Forest (Conservation) Act, 1980?

    • It is the principal legislation that regulates deforestation in the country.
      • It prohibits the felling of forests for any “non-forestry” use without prior clearance by the central government.
      • The clearance process includes seeking consent from local forest rights-holders and from wildlife authorities.
      • The Centre is empowered to reject such requests or allow them with legally binding conditions.
    • Process of approval for diversion of forest land culminates after issuance of final diversion order by the State Government or UT concerned which authorises use of forest land for intended purpose and hands over the land to the user agency.

    What is the Forest Rights Act 2006?

    • It is a law in India that aims to recognize and vest the forest rights of traditional forest-dwelling communities which includes Scheduled Tribes and other traditional forest dwellers who have lived in and depended on forests for their livelihoods. 
    • The FRA recognizes the rights of these communities to access, use, and conserve forests and their resources, and to protect their habitat. 
    • The act also provides for the constitution of Gram Sabhas (village assemblies) to help facilitate the process of recognizing and vesting forest rights.

    What are Forest Conservation Rules 2022?

    • Ease of snatching of forest land: 
      • The rules will allow private developers to clear forests without first seeking the permission of the forest dwellers.
        • It means that the Union government has the right to permit the clearance of a forest without informing its authentic residents.
        • Residents won’t have any claim over their forest area in case of any diversion to Non-forestry activities.
    • Compensatory afforestation:
      • The rules stated that those applying for diverting forest land in a hilly or mountainous state with a green cover of over two-thirds of its geographical area or a state/UT with a forest cover of over one-third of the geographical area would be able to take up compensatory afforestation in other states/UTs where the cover is less than 20%

    Major Challenges associated with the new rules

    • Consent clause: There are concerns over the provision in the new rules that proposes to do away with the consent clause for diversion of forest land for other purposes.
      • NCST says that the FCR 2022 had done away with the clause to mandatorily seek consent of Gram Sabhas before the Stage 1 clearance, leaving this process to be done later even after Stage 2 clearance.
    • Violation of rights: Project proponents receiving partial clearance will be pushing State and Union Territory governments for diversion at the earliest and it would seriously impact the process of recognition of rights under the FRA.
    • FRA non-compliance: The Commission has pointed out that between 2009 and 2018 of the 128 applications for forest diversion for mining, 74 were cleared at the Stage 2 and 46 at the Stage 1 and none of the rejections were based on FRA non-compliance.
      • The new Rules will only increase such violations.
    • Resettlement: Once Forest clearance is accorded then the dwellers’ claims of resettlement will be ignored.

    Counter Argument (Government’s position)

    • The government says that the new rules are framed under the Forest (Conservation) Act, 1980 and that the NCST’s apprehension of these rules being in violation of the Forest Rights Act (FRA), 2006 is not legally tenable.
    • Under Rule 9(6)(b)(ii): the government says the FCR 2022 already provides for diversion of forest land only after fulfilment and compliance of all provisions, including settlement of rights under the Forest Rights Act and does not bar or infringe upon the operation of other laws mandating consent of Gram Sabhas.
    • The new rules will allow parallel processing of the proposals and eliminate the redundant processes.
    • The rules make a provision for private parties to cultivate plantations and sell them as land to companies who need to meet compensatory afforestation targets.
    • It will help India increase forest cover as well as solve the problems of the States of not finding land within their jurisdiction for compensatory purposes.

    Way forward

    • The requirement for consent and recognition of rights prior to Stage I clearance in 2014 and 2017 Rules provided a legal space for ensuring completion of the processes for recognition and vesting of rights under the FRA in areas where forests are being diverted. 

    The Niyamgiri Bauxite Mining Case

    • In the case of Orissa Mining Corporation vs. MoEFC, the Supreme Court had directed that the proposals for bauxite mining be placed before Gram Sabha for examination on whether the proposed mining would infringe in the religious rights of the forest dwelling communities or not and the the MoEFC should take a decision in the light of the Gram Sabha Resolutions in the said matter.

    Source: TH