The story so far: The Congress and the Bharatiya Janata Party (BJP) sparred earlier this week on the latest version of the Forest Conservation Rules. Congress spokesperson, Jairam Ramesh, alleged that the latest version of the rules, updated last month, allowed forest land to be diverted to industry without settling questions of the rights of forest dwellers and tribals who resided on those lands. The Union Minister of Environment, Forest and Climate Change, Bhupender Yadav and Tribal Affairs Minister, Arjun Munda, denied these claims.

What are the Forest Conservation Rules?

The Forest Conservation Rules deal with the implementation of the Forest Conservation Act (FCA), 1980. They prescribe the procedure to be followed for forest land to be diverted for non-forestry uses such as road construction, highway development, railway lines, and mining.

The broad aims of the Forest Conservation Act are to protect forest and wildlife, put brakes on State governments’ attempts to hive off forest land for commercial projects and striving to increase the area under forests.

For forest land beyond five hectares, approval for diverting land must be given by the Central government. This is via a specially constituted committee, called the Forest Advisory Committee (FAC).

This committee examines whether the user agency, or those who have requested forest land, have made a convincing case for the upheaval of that specific parcel of land, whether they have a plan in place to ensure that the ensuing damage — from felling of trees in that area, denuding the local landscape — will be minimal and the said piece of land doesn’t cause damage to wildlife habitat.

Once the FAC is convinced and approves (or rejects a proposal), it is forwarded to the concerned State government where the land is located, who then has to ensure that provisions of the Forest Right Act, 2006, a separate Act that protects the rights of forest dwellers and tribals over their land, are complied with.

The FAC approval also means that the future users of the land must provide compensatory land for afforestation as well as pay the net present value (ranging between ₹10-15 lakh per hectare.)

What do the updated rules say?

The latest version of the rules, which consolidates changes to the Act over the years from various amendments and court ruling, was made public on June 28, 2022.

Parliament is scheduled to begin its monsoon session on July 18, 2022 and the law requires that the rules be placed before both the Houses. The new rules, according to the Centre, “streamline” the process of approvals. The rules make a provision for private parties to cultivate plantations and sell them as land to companies who need to meet compensatory forestation targets.

This, according to the government, 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. While this has invited its own controversy, the latest point of contention is the absence of wording, in the updated Forest Conservation Rules, of what happens to tribals and forest-dwelling communities whose land would be hived off for developmental work.

Prior to the updated rules, state bodies would forward documents to the FAC that would also include information on the status of whether the forest rights of locals in the area were settled.

After 2009, the Environment Ministry passed an order mandating that proposals would not be entertained by the FAC unless there was a letter from the State specifying that the forest rights in the place had been “settled” and the gram sabha, or the governing body in villages in the area, had given their written consent to the diversion of forest.

However, there have been a series of orders by the Environment Ministry over the years, and frequently opposed by the Ministry of Tribal Affairs, that have sought to skirt the necessity for consent from the gram sabha.

The new rules formally codify this and say that a project, once approved by the FAC, will then be passed on to the State authorities who will collect the compensatory fund and land, and process it for final approval.

Only in passing, is it mentioned that the States will ensure “settlement” of Forest Rights Acts applicable. This, many forestry experts say, doesn’t automatically imply the consent of the resident tribals and forest dwellers.

What is the government’s position?

Union Environment Minister Bhupender Yadav rebutted Mr. Ramesh underlining that fulfilling and complying with the FRA, 2006 was an independent process and could be undertaken by States “at any stage” of the forest clearance process and that complying with provisions of the FRA is mentioned in the rules before States order diversion of the land. However, he said, it had to be completed before granting approval for land diversion.

The purpose of updating these rules, said Mr. Yadav, was to “streamline the approval process.”

How well has the Forest Conservation Act (FCA) been implemented so far?

A 2019 analysis by the Legal Initiative for Forests and Environment has found that the FAC generally approves land for diversion without examining questions around consent as it relies on the State government to ensure that this is done.

In the first six months of 2019, of the 240 proposals that were considered for diversion of forest land for non-forestry purposes, 193 proposals were recommended, 40 proposals were deferred for later consideration and seven rejected. Recommendation for 193 proposals meant 9,220.64 hectares of forest land were recommended for diversion for non-forestry purposes such as roads, railways, mining, irrigation, infrastructure and hydel power.