The tribal affairs ministry has taken on the Union environment ministry afresh. It has warned that the Forest Rights Act does not provide any exception to the need for tribal consent to divert their traditional forest lands for industrial projects. In a move that also sets the tribal affairs ministry on a collision course with the Prime Minister's Office (PMO), the ministry has said that public consultations under other green laws cannot subsume the need for a clear-cut consent of tribals through their gram sabhas (village councils).
The letter from the tribal affairs ministry dated August 27 has countered the contention of the environment ministry and reiterated its stand even after the Prime Minister's Office had sidestepped such a legal view in a meeting held in July.
Business Standard had reported the PMO spearheading the move to do away with the requirement of consent of tribals while giving away forest clearances for their forests to projects. The environment ministry had kick-started the move, asking that the government revert to the system where clearances for projects were given by the bureaucracy and the ministry and did not require consent of the tribal gram sabhas. The requirement of tribal consent for projects requiring forest areas was ordered to ensure compliance with the Forest Rights Act in 2009. The law makes the tribal gram sabhas the statutory authority in charge of protecting the traditional forest lands.
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Business Standard had reported that the tribal affairs ministry had informed the PMO and the environment ministry that the law did not provide any exception and the only way to get rid of the need for consent would require an amendment to the law. But in the meeting on the issue held by the PMO in July, the tribal affairs ministry's views were not accepted. The law ministry was instead tasked to quickly give another legal view.
The meeting in the PMO held by the principal secretary to Prime Minister Narendra Modi also asked the environment ministry and the tribal affairs ministry to figure out how public hearings, which are only consultative in nature, could be held for project-affected people instead of seeking consent from tribal gram sabhas (village councils).
The formal missive from the environment ministry requesting the law ministry for this legal interpretation listed out several reasons why the tribal consent could be done away with.
It could not be ascertained if the law ministry had provided its legal opinion on the matter. When the Union environment and forests minister, Prakash Javadekar, was recently asked by the media about the controversy, he said the debate was only an internal confabulation of the government and he would speak on it once the government had taken a final decision.
The tribal affairs ministry has put its August 27 orders, countering the environment ministry's viewpoint, on its website.
It reads, "The Forest Rights Act does not provide for any exemption to its provisions for any category of forests, projects or persons etc, in order to prevent any violation of law."
It goes on to ask that in the circulars on forest clearances that the environment ministry issues, the latter must put a 'disclaimer' noting, "Anything in this instruction may not be construed to imply any relaxation in the provisions of Forest Rights Act or Rules." It has also asked the environment ministry to make it clear that special regulations under the Fifth Schedule also cannot be overridden by any executive instructions.
The Fifth Schedule areas are those identified as those with higher tribal provisions where higher level of protection against alienation of land is provided under the Constitution.
It adds, "As regards combined public hearing under FRA and Forest Clearance, it is clarified that the Gram Sabha meeting under FRA is a statutory requirement, while public hearing under Forest Clearance is through an executive instruction. The Gram Sabha meeting under FRA can also consider the issue of forest clearance, which is consistent with Panchayat (Extension to Scheduled Areas) Act provisions. The necessary quorum required under FRA rules for Gram Sabha meeting shall be met in every case."
The environment ministry has not as yet put out any circulars involving forest clearance procedures incorporating these views of the tribal affairs ministry.
- Tribal affairs ministry has raised concerns that the Forest Rights Act doesn't provide any exception to the need for tribal consent to divert their traditional forest lands for industrial projects
- The requirement of tribal consent for projects requiring forest areas was ordered to ensure compliance with the Forest Rights Act in 2009
- The law makes the tribal gram sabhas the statutory authority in charge of protecting the traditional forest lands
- The environment ministry and the tribal affairs ministry have also been asked to figure out how public hearings, which are only consultative in nature, could be held for project-affected people instead of seeking consent from tribal gram sabhas