On March 31, Javadekar, when asked about the ongoing discussions in the government on diluting tribal rights, said, "This forest rights [Act] discussion I hear only from newspapers. We have fought for tribal rights since 1980s. I personally have worked with tribals. A tribal has a right to stay where he stays. He has a right to do farming where he does farming and the right to collect minor forest produce. These are the three basic rights of tribals. Nothing will be changed."
But Business Standard reviewed a draft order the environment ministry had formulated on the instructions of PMO in February, weeks before the environment minister's statement, to do away with the need for consent when handing over tribal forest lands to industries and miners. This draft was sent to the Department of Legal Affairs for review on February 17, as it had been decided in a meeting held by PMO on January 12.
The environment minister might have said the discussions on diluting tribal rights were only appearing in news reports, but Business Standard has also reviewed a strongly worded response to the draft notification by the tribal affairs ministry, calling the draft notification from Javadekar's ministry as "illegal, encroaching upon the jurisdiction of the judiciary and the legislature" and unacceptable.
The draft notification radically dilutes the existing regulations under the forest rights Act, which require the prior informed consent from concerned gram sabhas in the form of a written resolution before tribal forest lands are given away by the government to industry under the Forest (Conservation) Act, 1980.
The environment ministry has proposed that consent of the tribals need not be taken in all cases where public consultations are held for the purpose of any other clearance. Most projects above a certain size require public consultations under environment clearance norms, but these are in the form of discussion and not consent-seeking in nature.
The ministry has proposed that in the exceptional cases where consent is required, it should only be sought if the tribals are living within designated Schedule V areas. Also, all linear projects - roads, canals, pipelines, optical fibres, transmission lines and others - will not require prior consent from tribals in any part of the country. So will be the case for renewable energy projects, besides public utilities. In cases where gram sabhas are not constituted, the power of consent could also be optionally transferred to panchayats or autonomous district councils.
The environment ministry, in its draft, has also said when such exceptions are not applicable and consent is required, the lack of such a consent will not hold back giving the forest clearance. At present, to make the forest clearance process comply with the forest rights Act, the environment ministry has to first secure and only then give the clearance. This was done knowing that once the clearance is given under the Forest (Conservation) Act, the forests would get chopped down without awaiting formal written consent of tribals.
Javadekar did not respond to queries about the contradiction between his statements and the draft notification and intentions of his ministry diluting tribals rights. The environment secretary said, "The environment ministry is the administrative ministry for the Forest (Conservation) Act, which governs the permission for diversion, and any proposal made by the ministry would be in conformity with that Act." In other words, the environment ministry is only amending rules regulating how forest clearance is given.
But the tribal affairs ministry has responded to the environment ministry's draft, saying that the "draft constitutes an encroachment upon the jurisdiction of the judiciary (in sofar as it attempts to disregard binding judicial precedent and directions and the legislature insofar as it is contrary to the scope and meaning of the provisions of the Act, rules and guidelines framed under it)".
Countering the environment ministry, it has noted that laws governing forest and environment "do not operate in silos independent of each other". It has said the Act made it clear that forest rights vested under it superseded other pre-existing laws, or even new legislations framed thereafter. It has quoted provision 4(1) of the forest rights Act that says that the rights are vested and recognised "notwithstanding anything contained in any other law for the time being in force, subject to the provisions of this act".
It has added that the environment ministry's draft order was "contrary to the law in force" and any forest clearance given through statutory violation by governments "without completing recognition of rights and leading to eviction or deprivation of forest rights would be illegal".
The Supreme Court, too, in a decision as recently as September 2014, warned that no forest clearance for mining should be given without compliance with the Act, including the district collectors report that consent has been secured from concerned gram sabhas, the tribal affairs ministry has warned.
It has also said that if forest clearance is given without waiting for gram sabhas' consent, as the environment ministry's draft notification suggests, it would make such consent redundant, destroy the evidence required by tribals to claims their rights and consequently result in denial of forest rights due to the tribals.
It has also said that the forest rights Act applies across the country wherever tribals and other forest dwellers have traditional rights to claim and does not distinguish between Schedule V and non-scheduled areas.
"There is no room for any executive authority under the government of India to provide any exemption to any class of persons, any kind of forest rights, any type of forest land, or any category of project from the application of the provisions of the forest rights Act," it concludes, warning that the law does not provide any escape clause for exemptions of the kind the environment ministry has proposed in its draft orders.
The tribal affairs ministry ends its reply by saying, "Therefore, the ministry of tribal affairs cannot agree to the issuance of the environment ministry draft as an executive instruction in any form." Javadker, in contrast to the ongoing inter-ministerial tussle, in an interview to the DNA newspaper, said on April 9, "We are not making any changes to the law or bringing our any order in this regard." He had added, "He [secretary in the environment ministry] has clarified that we are not making any changes to the tribal laws because that is not our domain. The PMO and the Cabinet are the ultimate arbitrators of any proposed changes in law and not one ministry."