Amended FCA Rules: Brinda Karat to Minister

Monday, July 11, 2022

Smt. Brinda Karat, Member, Polit Bureau of the Communist Party of India
(Marxist) and former Member of Parliament, has written today the following
letter to Shri Bhupender Yadav, Union Minister of Labour and Employment,
Environment, Forest and Climate Change, Government of India on the new
amended Rules for the Forest Conservation Act gazetted on June 28, 2022.  We
are herewith releasing the text of the letter for publication.


(For CPI(M) Central Committee office)



Dear Shri Bhupender Yadavji,


Namaskar. I am writing to you in connection with the new amended Rules for
the Forest Conservation Act  gazetted on June 28, 2022.


1.The changes in the Rules are so far-reaching in their aim  to help
corporates and private companies to gain access and control of India's
forests that in honesty the Government could well have brought a new law, so
that people of India could understand the Government's priority. Indeed
taking the Rules in their entirety, it is more suited for a Forest
Corporatisation Act rather than a Forest Conservation Act. For example,
whereas the earlier Rules had provision for dibersion of 100 hectares or
more, in the new Rules the "more" has now been quantified as "more than 1000
hectares" a huge amount of forest land. It is significant that the Ministry
of Tribal Affairs had objected in 2019 to some of the provisions which had
been suggested by MOEFCC. (F.No.23011/23/2012 FRA)


2.It is objectionable, condemnable and unacceptable  how the amended Rules
have totally eliminated the rights of gram sabhas and of tribal communities
and other traditional forest dwellers living in forests. The Rules of 2003
were amended after the passage of the Forest Rights Act 2006. MOEF circular
dated August 3, 2009 clearly stated the requirement of getting a letter of
consent from each gram sabha prior to in principal approval. In 2017 under
your government this was diluted but the necessity for gram sabha approval
was retained.


This set of Rules specifically as part of the initial process of getting "in
principle approval" for the project stated in :

3.e.(i)  "The District Collector shall complete the process for settlement
of rights with the provisions  of the ST and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act 2006 for the entire forest land
in the proposal.

(ii) obtain consent of each gram sabha having jurisdiction over the
diversion of the forest land indicated in the proposal for the diversion of
such forest land and compensatory and ameliorative measures, if any, having
understood the purpose of details of diversion and forward to Conservator of
Forests " for on site inspection, feasibility etc. " In other words gram
sabha consent was required before giving in principal approval for the

The new Rules stipulate a two stage approval process- in principal approval
and final approval. Shockingly to get either of these approvals from the
Central Government, in the list of compliances, the condition for consent of
gram sabha and settlement of rights has been completely eliminated.  Leave
alone in the process before in principle approval, or as part of in
principal approval now even the final approval will be given by the Central
government under Clause 9 (b) (i) with no reference to gram sabha or
settlement of rights. To further emphasize the utter disregard for the
plight of tribals and OTFDs, the Rules in Clause 9.5.A state that for in
principal approval the " State government should consider all issues having
direct and indirect impact on Forest, wild life and environment" but no
mention of tribals here.   Therefore at no stage is there any right of
tribals or OTFDs living in the forest to give or not give consent. Moreover,
the Central Government will give its final approval and collect the payment
for compensatory afforestation with no responsibility whatsoever for
protection of tribal rights. This has been shifted to the State Government.

Under Clause 9(b)(ii) it is stated that "the State Government or the Union
Territory as the case may be after receiving final approval from the Central
Government, and after fulfilment and compliance of the provisions of all
other Acts and Rules thereunder including ensuring of settlement of rights
under the Scheduled Tribe and Other Traditional Forest Dwelling Communities
(Recognition of Forest Rights) Act 2006, shall issue order for diversion,
assignment of lease or dereservation, as the case may be." Thus a fait
accompli is created where the voices and rights of tribals is silenced. The
words "consent of gram sabha" there in the earlier Rules have been deleted.

Shri Bhupender Yadav ji, this is totally against the constitutional
guarantees given to tribal communities, it is in violation of the  Fifth and
Sixth Schedules, the PESA, the amended Wild Life Protection Act and finally
and importantly the FRA. It is a violation of the Supreme Court judgement in
the Niyamgiri mining case, 2013.

3. The new Rules have introduced the concept of land banks for compensatory
afforestation. In case the user agency is unable to provide suitable non-
forest land for afforestation, then on payment, state governments can
provide land which may include degraded, notified or unclassed forest land.
In many States, most of such land is near habitations and often have rights
of people recorded on these lands. Thousands of families live on such lands
for decades. It is worth remembering  the N.C.Saxena Working Group set up by
the then Planning Commission to look into the question of leasing out
degraded forest land to private companies for plantations, had stated
"degraded forests with some soil depth are dispersed, they have extreme
biotic pressure and therefore are ideally suited for regeneration provided
one works with the people. Such forests are certainly not "useless", as they
satisfy livelihood needs of about 100 million people." There is no mention
at all in the Rules as to what will happen to these millions of people. The
FRA definition of forests, includes unclassed forests. In other words tribal
communities and OTFDs dwellers have legal rights in these forests. The Rules
have no mention of this. Thus these land banks and also the availability of
such lands to user agencies in the name of compensatory forest afforestation
will have a most disastrous impact on existing rights of people on the land.

Moreover, the Rules give the right to the user agency to negotiate to get
land for compensatory afforestation in any other state if land is not
available in the state where the project is to be started. Thus this
handover of large tracts of forest land to corporates and private companies
will have a wider impact since non- forest land in other States will also be
made available for them, on payment in the name of compensatory
afforestation. The payment will go to the central and state governments.
People affected will have no share in the compensation. Land which should be
distributed to the landless will go to corporates for afforestation.

4. The Rules apart from the huge amounts of land of over 1000 hectares,
mentioned earlier, also give permission for projects in hitherto restricted
areas considered inviolate. Under Clause 9 (5) (E) it is stated that
Advisory Committee when examining a project should see "whether adequate
justification has been given and appropriate mitigation measures measures
have been proposed.. if the forest land proposed to be used for non- forest
purposes forms part of a national park, wildlife sanctuary, tiger reserve,
designated or identified tiger or wild life corridor or habitat of any
endangered or threatened species of flora and fauna ..".  This means that if
the justification is adequate, all these" inviolate areas" will be opened up
for private sector projects. This is in sharp contrast to the coercive
measures being applied by the Ministry to evict thousands of tribal families
who have been living in these areas.

The above are only illustrations, not exhaustive, of the objections to the
Rules. The change in Rules are an opaque process without prior consultation
or discussion with those who are affected.  The procedure of Parliamentary
approval is reduced to a mere formality. Given the consequences which will
surely arise once these Rules are implemented, the Government should put
them in abeyance till there is a public discussion and opinions elicited
from all those sections likely to be affected. The Rules should also be sent
for examination to the relevant Standing Committe of Parliament and the
opinions of the Ministry of Tribal Affairs which is the nodal Ministry for
implementation of the Forest Rights Act must be included.

Yours sincerely,


Brinda Karat