Early Warning Procedure to UN CERD concerning the severe threats being faced by Indigenous Peoples in India

Written on 19 March 2019. Posted in India

The International Working Group for Indigenous Affairs (IWGIA) is writing to seek intervention of the UN Committee Against Elimination of All Forms of Racial Discrimination under its Early Warning Procedures for prevention of violations of the rights of indigenous peoples of India through the Draft National Forest Policy, 2018 being drafted by the Ministry of Environment, Forest and Climate Change (MoEF), Government of India at present.

The Draft National Forest Policy envisages “(c) adoption of new discriminatory legislation” in violation of the existing laws recognizing the rights of indigenous peoples, and “(h) encroachment on the traditional lands of indigenous peoples or forced removal of these peoples from their lands, in particular for the purpose of exploitation of natural resources”, two grounds identified by the CERD Committee for interventions under the Early Warning Procedures.

So far, we have not been able to get into a dialogue with the Government of India about the draft policy. We have submitted a Memorandum, but have not even got a response, which is rather unusual, and indicates to us, that the Government of India is not interested in a dialogue with us.

I.  Summary of the complaint

The Ministry of Environment, Forest and Climate Change (MoEF) of the Government of India published the Draft National Forest Policy of 2018 on 14 March 2018 inviting comments/ suggestions/ views of stakeholders including public/private organizations, experts and concerned citizens within one month i.e. 14 April 2018. The Government of India is expected to finalise the Draft National Forest Policy soon.

This draft National Forest Policy provides for adoption of a completely new legal framework discriminatory towards the indigenous peoples and further it seeks to take away the rights of the indigenous peoples already recognized under the existing laws, “in particular for the purpose of exploitation of natural resources” i.e. an estimated 10,941,652 acres or 4,429,818 hectares of “community forest” for which titles have been issued to the indigenous peoples under the Forest Rights Act (FRA) as of August 2018¹ and 22,938,814 hectares of forest area² covered under the Joint Forest Management (JFM) Committees since 1990. The area constitutes about one-third of India’s total forest cover.

It is pertinent to mention that the Ministry of Environment and Forest of India had established the Joint Forest Management Committees (JFMCs) under executive orders in 1990. As these Committees were established under executive order, the JFMCs have no legal basis.

In 1996, Section 4(m)(ii) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act of 1996 (PESA) recognized the powers and authority of the Panchayats and the Gram Sabhas (Village Councils) in the Scheduled Areas i.e. areas inhabited by indigenous peoples and notified by the President of India, with respect to “the ownership of minor forest produce”. The Panchayats and the Gram Sabhas of indigenous peoples however could not take control over “the ownership of minor forest produce” under the PESA Act as the implementation of the PESA Act required adoption of the PESA Rules by the State Assemblies and the State Governments simply had not framed the PESA Rules to implement the PESA.³ Andhra Pradesh⁴ was the first state to publish the PESA Rules in 2011, 15 years after the promulgation of PESA.

In the meanwhile, in 2006, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 (herein after known as the FRA) was enacted and it recognized that “the Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction under this Act by 

receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim in such manner as may be prescribed for exercise of such rights and the Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level Committee.” As the FRA was a federal legislation and the Rules were framed immediately, the implementation of the FRA became in earnest.

The JFM Committees without legal basis had become irrelevant and the JFM were brought under the jurisdiction of the Gram Sabhas under the FRA Rules of 2012.

But, the Ministry of Environment, Forest and Climate Change has been taking measures to undermine the FRA and the rights of the indigenous peoples.

It is submitted that the proposed Draft National Forest Policy 2018 authorizes “encroachment on the traditional lands of indigenous peoples or forced removal of these peoples from their lands, in particular for the purpose of exploitation of natural resources” as provided in the Guidelines of the Early Warning Procedures of the CERD Committee in the following ways:

First, the Draft National Forest Policy 2018 seeks to seize the powers of the Gram Sabhas under the PESA Act and the Forest Rights Act i.e. control over the community forest resources and JFM by launching a “National Community Forest Management (CFM) Mission”. To achieve the same, it provides that “Appropriate laws, rules and regulations, as per requirement, will be put in place and existing ones suitably amended for effective implementation of this policy. Institutionalized legal support will form an integral part of the forest administration and management”. This usurping of powers of the Gram Sabhas is being proposed despite the non-obstante clause provided under Section 4(1) of the Forest Rights Act, 2006 which provides that “Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in – (a) the forest dwelling Scheduled Tribes in States or areas in States where they are declared as Scheduled Tribes in respect of all forest rights mentioned in section 3(b) the other traditional forest dwellers in respect of all forest rights mentioned in section 3.” Once the Draft National Forest Policy is adopted, the Forest Department officials will abuse the powers to bring the forest and forest dwellers at present under the control of the Gram Sabhas within the ambit of the National Community Forest Management (CFM) Mission.

Second, the Draft National Forest Policy 2018 also provides for creation of institutional framework

i.e. “A National Board of Forestry headed by the central minister in-charge of forests and State Boards of Forestry headed by state minister in-charge of forests” to “be established for ensuring inter-sectoral convergence, simplification of procedures, conflict resolution and periodic review”. The Draft National Forest Policy of the MoEF already decided to exclude the Ministry of Tribal Affairs’ mandated to ensure implementation of the FRA, from the proposed institutional framework.

Third, the Draft National Forest Policy 2018 further overrules the FRA by declaring that “as far as community forest resources management under Forest Rights Act is concerned, the new policy will address the same under participatory forest management and the same will be addressed through the proposed community forest management mission”. Only in India, the policy can prevail over the law!

This must be read with Section F(i) of the Draft National Forest Policy which unequivocally states that “legal and administrative measures for protection of biodiversity against bio-piracy will be taken, in sync with National Biodiversity Act”. It is clear that the Draft National Forest Policy complies to respect the National Bio-diversity Act but with respect to “community forest resources management” under Forest Rights Act, the new draft policy proposes to acquire the community forest resources through “the proposed community forest management mission”.

Finally, the Draft National Forest Policy 2018 seeks to promote “industrial plantations for meeting the demand of raw material”. It states that “4.4 There is a need to stimulate growth in the forest- based industry sector. This sector being labor intensive can help in increasing green jobs. Forest corporations and industrial units need to step up growing of industrial plantations for meeting the demand of raw material. Forest based industries have already established captive plantations in partnership with the farmers. This partnership needs to be further expanded to ensure an assured supply of raw material to the industries with mutually beneficial arrangements. Further a forum for interaction and collaboration would be set up for Forest based industries with forestry institutions and concerned stakeholders so that a demand for trained professionals is created in the sector”.⁵ It further states that “4.1.2(a)(iv): “Suitable location specific Public Private Partnership models will be developed involving Forest Departments, Forest development Corporations, Communities, Public limited companies etc for achieving the target of increased forest & tree cover in the country”.⁶

This is in complete contrast to the existing National Forest Policy 1988, which unequivocally states that “Natural forests serve as a gene pool resource and help to maintain ecological balance. Such forests will not, therefore, be made available to industries for undertaking plantation and for any other activities.”⁷

There is apprehension that the commercialization of the forest is being proposed “in particular for the purpose of exploitation of natural resources” among others to utilize about US$ 15 billion deposited with the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) of India, exclusively for undertaking afforestation programmes which is explained below.

Concerned about the reduction of forest cover because of diversion of forest for non-forest purposes, the Supreme Court in its order in T.N. Godavarman Thirumulpad vs. Union of India and Others [Writ Petition (Civil) No. 202 of 1995], dated the 30th October 2002 directed the Government of India to create a Compensatory Afforestation Fund in which all the funds received from the user agencies towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, net present value of the diverted forest land or catchment area treatment plan shall be deposited and the funds cannot be diverted. Under this programme, if an industrial activity such as mining is undertaken and certain area of forest is diverted/destroyed for the said industrial activity (which is a non-forest activity), the agency/authorities undertaking the industrial activity shall deposit assessed funds to undertake afforestation activities equivalent to the forest diverted/destroyed. The afforestation activities are undertaken to protect the environment and ensure environmental balance. The Forest Department of the Government of India is responsible for implementing the afforestation programmes.

As the funds for compensatory cannot be diverted and can solely be used for afforestation, it has been growing. Initially, the MoEF notified adhoc Compensatory Afforestation Fund Management and Planning Authority (CAMPA) in April 2004 for the management of the Compensatory Afforestation Fund. It continued to function on adhoc basis until the enactment of the Compensatory Afforestation Fund Act, 2016 (No. 38 of 2016). 

The Comptroller and Auditor General of India CAG⁸ after audit of the period from 2006 to 2012 found that the Compensatory Afforestation Funds with Ad-hoc CAMPA grew from Rs 12,000 million to Rs 2,360,767 millions. It is pertinent to mention that as on 31.03.2018, about Rs. 14,418 crore⁹ was released to different State Governments/Union Territories from the CAMPA funds and the same has not been fully utilized either. In the meanwhile as of 31.03.2018, the CAMPA funds available with various State /UT for afforestation programmes stood at Rs. 66,298 crore including interest.¹⁰ As per the media reports, by April 2018, CAMPA funds increased to Rs 900,000 million¹¹ i.e. over US$ 15 billion. The funds will further increase as the CAMPA Act has been enacted and diversion of forest lands are taking place on regular basis requiring deposit of more funds by the user agencies for compensatory afforestation.

It is pertinent to mention that compensatory afforestation activities cannot be undertaken in forest areas. It can be undertaken mainly in the “degraded forests” currently under mainly JFMC or communities under the Forest Rights Act. It is for this purpose that the commercialization of the forest and bringing entire forests including those over which rights under the Forest Rights Act had been recognized are being brought under the National Community Forest Management (CFM) Mission as envisaged in the Draft Forest Policy.

Further, the Forest Departments also do not have the capacity to undertake large-scale afforestation programmes and non-utilisation of Rs 90,000 million (about US$ 15 billion) explains the absolute lack of capacity. This had been recognized by the Government of India itself. In August 2015, the Ministry of Environment, Forest and Climate Change sent the guidelines to the states for “participation of private sector in afforestation of degraded forests” as “ongoing national afforestry programmes have not been able to make the desired impact in improving productivity and quality of forest cover due to a lack of sufficient investment, capacity, technological upgradation and adequate skilled manpower.”¹²

The CAMPA funds shall continue to grow as India diverts/destroys more forest for industrial activities and more funds are deposited for afforestation but the Forest Department admittedly is incapable and unable to undertake afforestation programmes and as the CAMPA funds are non- divertible for other purposes except afforestation under the direction of the Supreme Courts, interests on the deposited amounts also grows. The afforestation programmes remains a potential area of corruption by the officials of the government of India, which can be facilitated by participation of industries in the afforestation programmes.

If the Draft National Forest Policy 2018 is adopted and implemented, it shall sound the death knell for the Scheduled Tribes and other traditional forest dwellers of India.

Therefore, the urgent interventions of the UN CERD Committee are being sought under the Early Warning Procedure. 

>> Read the full Early Warning Procedure to the CERD here

1. Statement of claims and distribution of title deeds under the Forest Rights Act, 2006 as on 31.08.2018, Ministry of Tribal Affairs, https://tribal.gov.in/FRA/data/MPRAug2018.pdf
2. http://www.frienvis.nic.in/Database/JFM-Committees-and-Forest_Area_2243.aspx
3. The 10 States having tribal dominated areas requiring protection and recognition under the Fifth Schedule to the Constitution of India are Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana.
4. Rules – Andhra Pradesh Panchayats Extension to Scheduled Areas (PESA) Rules, 2011 , Dated 24.03.2011, available at http://pesadarpan.gov.in/documents/30080/0/AP+PESA+Rules+_2011.pdf/5a03b369-981f-4cf3-b9e3-1b63b7366df4
5. Para 4.4, Draft National Forest Policy, 2018
6. Para 4.1.2(a)(iv), Draft National Forest Policy, 2018
7. Para 4.9, National Forest Policy, 1988, available at http://envfor.nic.in/legis/forest/forest1.html
8. CAG Report No. : 21 of 2013, http://www.indiaenvironmentportal.org.in/files/file/Compensatory%20Afforestation%20in%20India.pdf
9. 1 crore is equal to 10 million
10. Lok Sabha, Unstarred Question No.3938, answered on 10.08.2018
11. Supreme Court pulls up Centre for not using Rs 90,000 crore meant for environment, Down To Earth, 11 April 2018, https://www.downtoearth.org.in/news/environment/supreme-court-pulls- up-centre-for-not-using-rs-90-000-crore-meant-for-environment-60149
12. Govt to allow pvt sector to manage 40% of forests, The Hindustan Times, 13 September 2015, https://www.hindustantimes.com/india/govt-to-allow-pvt-sector-to-manage-40-of-forests/story-yOiG4TO4kA2kvykxXNTEBK.html

Tags: Land rights