Wildlife clearance not required for basic public facilities, MoTA clarifies

Business Standard

2 days ago

The Ministry of Tribal Affairs (MoTA) has written to the environment ministry clarifying that wildlife clearance is not automatically required for constructing essential public facilities such as schools, anganwadis and roads on forest land under the Forest Rights Act (FRA)- 2006, provided they are recommended by the Gram Sabha.
In an office memorandum issued on July 2, MoTA offered a detailed clarification on Section 3(2) of the FRA, which allows diversion of forest land for basic facilities such as schools, roads, health centres and irrigation projects for the benefit of forest-dwelling Scheduled Tribes and Other Traditional Forest Dwellers (OTFDs).
"Section 3(2) of the FRA states that, notwithstanding anything contained in the Forest (Conservation) Act, 1980, the Central government shall provide for diversion of forest land for facilities (including schools, health centers, roads, etc)... on forest land. The clearance of such a developmental project shall be subject to the condition that the Gram Sabha recommends the same," it said.
In a letter issued in October 2020, the environment ministry had said that Section 13 of the FRA, which says the law is "in addition to and not in derogation of any other law for the time being in force", implies that "wildlife clearance will be required for implementing Section 3(2) of the Act".
The environment ministry letter had said that provisions of the Wildlife (Protection) Act, 1972, remain unaffected by Section 3(2) of the FRA.
However, the Tribal Affairs Ministry has now made it clear that Section 3(2) of the FRA is rooted in constitutional rights and safeguards, including Articles 14, 19(1)(e) and 21 of the Constitution, as well as the Fifth and Sixth Schedules, which protect tribal rights. The ministry cited landmark Supreme Court judgments, including Samatha vs State of Andhra Pradesh (1997) and TN Godavarman Thirumulpad vs Union of India (1997), to emphasise that the FRA is a legal instrument to balance tribal rights, development needs and environmental concerns.
The letter further said that the right to divert forest land under Section 3(2) must be read along with Sections 2(e), 4(1), 4(2), and 4(7) of the FRA. These provisions affirm that forest rights are "vested" in tribal and forest-dwelling communities to correct "historical injustices".
Addressing concerns about potential conflicts with wildlife conservation, the ministry said, "Section 4(2) of the FRA specifies the permissible self limitation. It introduces the self-limiting exception, to the modification or resettlement of forest rights for wildlife conservation, only in Critical Wildlife Habitat." Referring to a joint 2009 guideline with the environment ministry outlining procedures for forest land diversion for non-forest purposes under Section 3(2) of the FRA, MoTA said that the stipulated procedure provides a "clear understanding that the wildlife clearance is not automatically mandated".
The memorandum said that the rights granted under Section 3(2), when read with other relevant sections of the Act, are "a statutory entitlement deriving its mandate from the Constitution's Fundamental Rights, not contingent on external clearances unless explicitly stated in the FRA".
Researcher C R Bijoy said a 2020 letter from the environment ministry has been widely used by forest officials to block basic facilities in forest villages under Section 3(2) of the FRA, despite no formal orders being issued to states.
Forest rights experts claim forest villages have long been denied services like schools, roads and health centres that are available in regular revenue villages. Forest officials often block such projects, saying they are not legally allowed or citing forest conservation reasons. As a result, these villages remain some of the most neglected in the country.
In many cases, even after the district-level committees approved the projects, forest officials stopped them, triggering protests. In some instances, courts have even issued stay orders based on the 2020 letter.