Cleaning up the green clearance mess

By: |
November 7, 2014 1:54 AM

The ministry of environment and forests is cutting out unnecessary procedural hassles. But it has to ensure there is no avoidable litigation.

Laws are made with noble intentions but often, over a period of time, procedures become more important—many of them may not even be required—than the intent of the law, thereby creating more problems than solving one.

While this is true for most of the laws in India, those related to the environment and forest clearances assumed demonic proportions during the UPA regime by delaying and even killing projects.

So, what is the best way to deal with the situation—changing the laws or easing the procedures?

While amendments are required in several laws—not only in the old ones but also in the new ones like the Land Acquisition, Rehabilitation and Resettlement (LARR) Act—to begin with, it is a good idea to do away with the unnecessary procedures.

This is precisely what the environment and forest ministry officials tell you is driving their work in the new government.

There are two recent decisions, and many more in the works, that are being seen as examples of how clearances could be expedited. The ministry of environment, forests and climate change (MoEFCC, in the new avatar), in its guidelines issued on October 28, informed the states and the Union Territories that in further modification of the ministry’s letter of August 3, 2009, proposals seeking prior approval of the Central government under the Forest (Conservation) Act, 1980, for diversion of plantations which were notified as “forest” less than 75 years prior to December 13, 2005, and located in villages having no recorded population of Scheduled Tribes, as per the Census 2001 and the Census 2011, are exempted from the requirement of initiation and completion of the process for recognition and vesting of forest rights of Scheduled Tribes and Other Traditional Forest Dwellers (OTFDs).

The logic behind this move is simple. Though this approval was to ensure that the rights of the Scheduled Tribes and OTFDs were not violated in developing a project, this became a procedure that was assumed to be a requirement for all projects across the country, delaying and, at times, scuttling the projects.

Now, for such cases, a certificate from the concerned District Collector, to the effect that the forest land proposed to be diverted is plantation which was notified as “forest” less than 75 years prior to December 13, 2005 and is located in villages having no recorded population of Scheduled Tribes, as per the Census-2001 and the Census-2011, will be sufficient to go ahead with the project.

So, in cases where land acquisition is required in areas where there is no ST or OTFD population, these requirements have been done away with as they were not stipulated under the law.

The ministry’s argument behind this simplification is again on the same lines. The clause (o) of the section 2 of the Forest Rights Act 2006 (FRA) provides that a person should have primarily resided and depended on forest land for bona fide livelihood needs for at least 75 years prior to December 13, 2005, to be classified as an OFTD. No person living in plantations which were notified as forest less than 75 years prior to December 13, 2005, will thus be eligible to be classified as OTFD.

Such villages will, therefore, not have any person belonging to both the categories, Scheduled Tribes and OTFD, whose rights over the forest land have to be recognised in accordance with the provisions of the FRA. The question of recognition of forest rights on such forests will not arise.

So, the new guidelines, according to the ministry, have merely obviated the need for initiating and completing an unnecessary exercise and will not in any way affect the interests of the Scheduled Tribes or OTFD. This will help highways and other projects in the states like Punjab, Haryana, some parts of Uttar Pradesh, Rajasthan, Madhya Pradesh and others.

Similarly, the ministry has proposed that the mandatory consent of the Gram Sabha for diversion of forest land will only be insisted upon in Schedule V (The Fifth Schedule covers Tribal areas in 9 states, namely, Andhra Pradesh, Jharkhand, Gujarat, Himachal Pradesh, Maharashtra, Madhya Pradesh, Chattisgarh, Orissa and Rajasthan) areas based on the study of all the relevant statutes—the FC Act, the FRA, the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The argument given here is that the FC Act and the FRA do not mandate consent from the Gram Sabha for diversion of forest land under the FC Act for development projects.

The PESA mandates consent of Gram Sabha only for grant of mineral concessions for minor minerals in Schedule V areas. For other projects in Schedule V areas, the PESA mandates consultation with the Gram Sabha. The Right to Fair Compensation and Transparency in Land acquisition, Rehabilitation and Resettlement Act, 2013, which is latest among all these statutes mandates consent of the Gram Sabha for acquisition or alienation of land in Schedule V areas.

In other (non-Schedule V) areas, the mandatory consent of the Gram Sabha has, therefore, not been stipulated in any of the said statutes. Going by this logic, the proposal of the ministry to insist mandatory consent of the Gram Sabha for diversion of forest land only in Schedule V areas is in total conformity with these statutes.

While these moves are in the right direction, whether they yield the desired results or end up sparking protracted litigation is difficult to assess right now, but they certainly appear to be in the right direction.

There are a few easier administrative changes also in the way clearances have been handled in the past.

The ministry has engaged itself in the standardisation of the terms of reference for environmental impact assessment—these are currently fixed for individual cases by the expert committee and the whole process delays approvals.

Then, a decision support system with a comprehensive database of the topography and other required information for project clearance is also being created to ensure speedy approvals alongside a system to monitor clearances and the plan to create a green platform through which the user industries will file their compliance reports online the way income taxpayers file their e-returns.

The UPA government’s action led environment and forest clearances up a blind alley. The NDA government’s success would be measured by how far it succeeds in getting the investor sentiment going. The encouraging bit, at the moment, is the change that is being felt across the board. But the results on the ground are still awaited.

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