Amnesty International India’s Submission on the draft Compensatory Afforestation Fund Rules, 2018
16 March 2018 11:45 am
Amnesty International India welcomes the opportunity to make a submission to the Ministry of Environment, Forest and Climate Change on the proposed draft Compensatory Afforestation Fund Rules, 2018 (draft rules) that will operationalize the Compensatory Afforestation Fund Act, 2016 (CAF Act).
Amnesty International India is deeply concerned that the draft Compensatory Afforestation Fund Rules, if operationalized in their current form, will undermine the rights of Adivasi people, and violate existing Indian laws, especially the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), and India’s international human rights obligations to protect the rights of Indigenous Peoples.
Amnesty International India urges the Ministry of Environment, Forest and Climate Change to conduct consultations with members of affected communities and Adivasi organizations, and amend the draft rules and the CAF Act to bring them in line with Indian and international human rights law and standards relating to the rights of Indigenous Peoples.
Many provisions of the draft rules risk violating the provisions of the FRA, which seeks to correct the historical injustice faced by Adivasi communities in India and enable them to gain legal recognition of their rights over their traditional lands.
This submission analyses some of the provisions of the draft rules in light of Indian legislation enacted to protect Adivasi rights and international human rights law and standards relating to the rights of Indigenous Peoples, and details Amnesty International India’s concerns.
1. Consultation and consent:
A proviso to Section 5 of the Rules states: “… the said activities over forest land under the control of State Forest Department and being managed as per the working plan with participation of local people shall be taken up in consultation with the Gram Sabha or Van Sanrakshan Samiti or Village Forest Committee as the case may be, and shall be in consonance with the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006…”
Another proviso states: “… in case the said activities are to be undertaken in areas not covered by the approved working plan then they shall be taken up in consultation with concerned Gram Sabha or Van Sanrakshan Samiti or Village Forest Committee or any authority having jurisdiction over that area, as the case may be, and shall be in consonance with the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006…”
These provisos state that activities proposed under the CAF shall be taken up “in consultation” with the concerned Gram Sabha or Van Sanrakshan Samiti or Village Forest Committee or in some cases “any authority having jurisdiction over that area”. The requirement of consultation mentioned in the draft rules is a far lower standard than the requirement of free, prior and informed consent, which – according to international human rights law and standards – is required to be obtained from Indigenous peoples prior to the approval of any project affecting their lands or territories and other resources.
India has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which recognizes the right of Indigenous peoples to free, prior and informed consent. This right is also recognized by UN treaty monitoring bodies interpreting the Convention on Elimination of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, to all of which India is a state party.
Under the provisions of the FRA and a 2009 order issued by the Ministry of Environment and Forests (as it was called then), for industrial projects to receive forest clearances from the Ministry, state governments have to obtain the consent of gram sabhas (village assemblies) for any diversion of forest land. Despite the provisos stating that the activities “shall be in consonance” with the provisions of the FRA, the failure to mandate the obtaining of the consent of gram sabhas prior to any activities increases the likelihood that this requirement will not be met, and Adivasi people will be precluded from refusing to allow CAF activities.
While the draft rules call for “consultation” in some situations, they do not detail how the consultation will be carried out, what it will involve, and what course of action will be followed if a gram sabha objects to the proposed CAF activities.
Activists have also warned that Section 5 – which contains the consultation requirement – pertains only to CAF activities funded by a forest “net present value” levy imposed on industries.
Activities funded by other levies, which are likely to be significant, are not required under the Rules to involve any form of consultation with affected Adivasi communities.
Further, the draft rules do not provide for consultation to be conducted at all in situations when the proposed activities are to be undertaken “in the forest land under the administrative control of the Forest Department”. Activists have pointed out that forest land to which Adivasis have made claims under the Forest Rights Act frequently remain under the administrative control of the Forest Department. This could lead to gram sabhas in these areas not even being consulted – let alone having their free, prior and informed consent sought – prior to CAF activities being carried out.
It must be pointed out that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – a special law to protect the rights of Dalit and Adivasi communities – makes interference with the enjoyment of forest rights of a Dalit or Adivasi person by a non-Dalit or Adivasi person a criminal offence.
2. Village authorities to be consulted:
The provisos to Section 5 of the Rules state that consultation with communities – where it is to be carried out – will be conducted “with the Gram Sabha or Van Sanrakshan Samiti or Village Forest Committee as the case may be”, and in some cases with “any authority having jurisdiction over that area, as the case may be”.
Concerns: The gram sabha is the only authority mandated by the FRA to authorize the diversion of forest land on behalf of Indigenous Adivasi communities, and represent their interests.
The Van Sanrakshan Samiti and Village Forest Committee referenced in the draft rules are committees established and controlled by state Forest Departments. The VSS for instance, was formed under the Joint Forest Management (JFM) programme of the government, and the Forest Guard is an office-bearer of the VSS. These bodies do not therefore have the authority to represent the interests of Adivasi communities.
The Ministry of Tribal Affairs has taken a clear stand against consultations with any authority other than gram sabhas on numerous occasions. A document on ‘Frequently Asked Questions on the Forest Rights Act’, developed by the Ministry of Tribal Affairs and the UN Development Programme, states that “the practice of equating JFM Committees with community rights under FRA has been deprecated in clear terms.”
The provision in the draft rules to allow officials to “consult” committees established and controlled by state authorities, such as the JFM, on matters relating to the rights of Indigenous peoples, runs contrary to the provisions of the FRA and risks violating India’s international human rights obligations.
3. Definition of Gram Sabha:
Section 2(m) of the Rules states: “Gram Sabha” has the same meaning as assigned to it in clause (b) of article 243 of the constitution.”
Concerns: Article 243(b) of the Indian Constitution, which pertains to the setting up of panchayats, or village councils, defines a gram sabha as “a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level”.
This definition of a gram sabha can be infeasible to adopt in areas such as forests, where settlements can be widely scattered. The Forest Rights Act therefore defined a gram sabha as a village assembly comprising all adult members of a village, while expanding the definition of a village to include any “habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs” (the definition used by the Panchayats (Extension to Scheduled Areas) Act, 1996).
However, the definition of a gram sabha as per the draft rules returns to the Constitution’s definition. This definition would only allow for gram sabhas at the broader panchayat level to be consulted, and is likely to lead to smaller communities not being meaningfully consulted or having their consent sought. A gram sabha formed at the panchayat level in these areas may be less able to effectively represent the views of Adivasi people living in the area.