Abstract
In order to check the increasing diversion of forest land for non-forest purposes, the Government of India enacted the Forest Conservation Act (FCA) 1980 which mandated the central government’s prior approval for any such diversions. This Act applied to land notified as forest under the Indian Forest Act 1927 or any other law, and the forest under the control of the forest department. The Supreme Court order in Godavarman Case (1996) expanded the definition of a forest for applicability of FCA to all forests irrespective of recognition, classification, and ownership, and also those conforming to the dictionary meaning of forests. This created operational problems. The 2023 amendments to FCA 1980 exempt certain forest lands from its purview and exclude certain activities from the definition of non-forest purposes. The amended law shrinks the forest cover besides subverting rights granted to forest dwellers under Central laws.
Keywords
Forests are a precious natural resource which have sustained life and unique cultures of communities living in and around them. Till the end of the nineteenth century, at least 80 per cent of India’s natural resources were common property. These resources were freely shared by all in a non-cash, non-market economy for food, fuel, fodder, water, housing material and medicinal plants, and managed by local communities within their jurisdiction. The dependence on free common property resources was and continues to be the greatest in tribal areas. Early British rule witnessed fierce onslaught on Indian Forests due to increasing demand for British navy, construction of railways, roads and extension of agriculture to augment revenue. Around the year 1865 and thereafter, they began the process of privatisation of these common property resources by creating numerous permanent settlements, declaring reserved forests, protected forests, and revenue land, and charging a price for these resources (Singh, 1986). Realising their economic and strategic value, they took over the control of forests from local communities, restricted the latter’s access to them, and planted commercial species in place of diverse natural forests. This appropriation of forests by the state is the root cause of their degradation and poverty of people living in and around them. Post-colonial Indian state continued with this arrangement but also enforced it with greater zeal. The National Forest Policy (1952) firmed up the state’s exclusive control over forest protection, production, management, and the distribution, and the focus shifted to the expansion of forest-based industry and diversion of forest land for development projects.
Rationale for FCA 1980
State governments in post-independence period diverted and de-reserved forest lands for various non-forest purposes, primarily for agriculture and industry, while some encroachments by individuals also occurred, all of which led to rapid deforestation. Between 1950 and 1980, forest lands were diverted at the rate of 0.15 million hectare per annum. Under the Constitution, the subject of ‘forests’ was in the State list but through the 42nd Constitutional Amendment in 1976, it was brought into the Concurrent list, thereby empowering the central government also to legislate on the subject. Alarmed at the scale of this loss, Forest Conservation Ordinance 1980 was issued by the central government which later became the Forest Conservation Act (FCA) 1980 to regulate forest diversion by curtailing the power of the state governments and mandating prior approval of central government for such diversion and to preserve the forest ecosystem and arrest the loss of forest biodiversity. A two-stage process was set in for getting central government’s approval. As a result, the annual rate of forest diversion reduced from 0.15 million ha during 1950–1980 to 0.023 million ha during 1980–2004 (Ministry of Environment, Forests and Climate Change, 2004). Since 1980, a total of 0.921 million ha of forest land has been diverted. The purpose of diversion also shifted from agriculture and industry to mining, dams, and defence projects. In 1988, the amendment to the Act permitted the assignment of forest land by way of lease or otherwise to any private person or agency and the clearance of trees on it for reforestation. The Judiciary has upheld the validity of FCA 1980 through its landmark judgments in Tarun Bharat Singh vs Union of India (1993) and State of Madhya Pradesh and Ors vs Krishna Tikaram (1994) (Varshney, 2020).
Till 1996, the Act applied to ‘forests’ notified under the Indian Forest Act 1927 or to any other local law and to the forests which were under the management and control of the forest department. Subsequent to the Supreme Court (SC) judgment (dated
FCA Amendments in 2023
The FCA 2023 substitutes the words and brackets ‘Forest (Conservation) Act’ in section I of the FCA 1980 with the words and brackets Van (Sanrakshan Evam Samvardhan) Adhiniyam, which may be translated in English as Forest (Conservation and Augmentation) Act. It further amends the 1980 Act (a) for meeting national commitment for climate change mitigation target to achieve net zero emission by 2070 and increase tree cover for the creation of a carbon sink of 2.5 to 3.0 billion tons of CO2 equivalent by 2030, (b) to resolve the difficulties created by SC judgment in Godavarman Case (1996) in the definition of ‘forests’, (c) to fast track the execution of security related projects especially along international border areas, (d) to provide connectivity of small establishments, habitations on the side of the public roads, and railways to main arterial roads and public utilities, and (e) to bring uniformity in the applicability of the provision of the Act in respect of government and private entities.
The amendments contained in the FCA, 2023, include the following:
Exclusion of two categories of land from applicability of FCA 1980: First, land recorded as a forest before 25 October 1980 (the date of coming into force of the Act) but not notified as a forest, and second, land which changed from ‘forest use’ to ‘non-forest use’ before 12 December 1996 (the date of SC judgment). Exemption of the following from the purview of the FCA: (a) Forest land (strip plantation) up to 0.10 ha, situated alongside a railway line or a public road, to provide establishments, habitations access to main arterial roads, and amenities, (b) forest land within 100 km of India’s international borders required for national security projects, and up to 10 ha of forest land required for security-related infrastructure or defence-related projects in ‘Left Wing Extremism affected areas’, and (c) construction of bona fide structures up to 250 sq. m. as one time relaxation. Exclusion of the following activities from the category of ‘non-forest use’: (a) conservation, development, and management of forest and wildlife, including establishment of zoos and safaris in any forest area owned by government or ecotourism facilities included in working plan of the forest area, (b) any other purpose which the central government may specify, and (c) any survey, investigation, reconnaissance, prospecting, exploration, subject to the terms and conditions laid down by the central government. Empowering the central government to issue directions for implementation of the Act.
Undemocratic Passage of Parliamentary Approval
The Forest (Conservation) Amendment Bill, 2023, was tabled in the Lok Sabha in the monsoon session of Parliament. The Bill had come under sharp criticism from several quarters including scientists, conservationists, and social activists. The standard procedure of referring it to the standing parliamentary committee for the Ministry of Environment, Forests and Climate Change was bypassed because it was headed by Jairam Ramesh, a leader of the Indian National Congress, which is at present an opposition political party. Instead, it was assigned to a Joint Parliamentary Committee (JPC) headed by a Member of Parliament belonging to the Bharatiya Janata Party, a political party which is currently the main force in the ruling National Democratic Alliance. The obvious intention was to get the proposed amendments endorsed without any change. This became very clear from the deliberations of the JPC. It received 1,309 memoranda which were circulated to all its members, four of whom presented dissent notes. The Committee also consulted 12 experts and called for suggestions from other ministries. The Committee tabled its report in July 2023 which cleared all the proposals contained in the Bill brushing aside all the objections, critique, and general concerns of citizens (The Wire Staff, 2023). The Bill was passed in both houses of the Parliament without any meaningful debate, amidst severe political chaos triggered by the opposition’s dissatisfaction with the state government’s handling of group violence in Manipur and Haryana (Nitnaware, 2023).
Resistance from Private Individuals/Organisations
The main ground for critiquing the provisions of the Act is its negation of the expanded definition of ‘forest’ that Godavarman Case (1996) had provided (Chaitanya, 2023). The government’s view is that the applicability of the SC order caused a lot of resentment and resistance, particularly from private individuals and organisations. Considering any private land as forest would restrict the right of the individual to use his/her own land for non-forestry activity and the owner has to provide equivalent non-forest land and other compensatory levies for use of their own land for intended non-forestry purpose. This has led to disincentivisation of planting activities on private land and goes against the objective of increasing forest cover including on land under private ownership for ecological, environmental, and economic benefits (Ministry of Environment, Forests and Climate Change, 2021). Besides, for creating carbon sinks to meet climate mitigation targets, extensive plantation and afforestation would need to be encouraged on all possible lands outside government forests. Bringing such ‘forests’ under FCA would, therefore, defeat this purpose. While this argument has some merit, the Act has also excluded other ‘unclassed forests’ on government land, such as plantation, mangroves, and scrub forests, not notified as forests, which are estimated to be 15.58 per cent of the recorded forest area (Bijoy, 2023; Chaitanya, 2023). In pursuance of the court order, states were told to work out a definition of such ‘deemed’ forest in the light of the ruling. Many states failed to comply with this order leaving large tracts of green cover in these forests vulnerable (Noronha, 2023). This includes an estimated 50,000 acres of forested land in the Aravalli Range in Haryana that has not been notified as ‘deemed’ forest yet. As a result, builders have sold parts of the land for residential purposes as it is in close proximity to Delhi. A major trigger for the amendments appears to be the SC ruling (
Objections by Ministries
The amendments have also exempted those forest lands from the purview of FCA that have changed from forest to non-forest use on or before the date of SC order. This includes forest lands which were acquired by Central ministries (Railways, Road Transport and Highways, etc.) before October 1980, to construct/establish railway lines and roads, part of which was left vacant for future expansion, but over time trees have been planted over them and recorded in government records as forests. Applying FCA to such forests would require prior approval of the central government as well as payment of stipulated compensatory levies such as net present value and compensatory afforestation for the use of these lands. This would delay the execution of the projects and create a financial burden on agencies. This amendment is intended to facilitate the execution of pending and new projects of railways and highways (Ministry of Environment, Forests and Climate Change, 2021). The explanation is not wholly convincing. If the acquired land was required for future expansion, why was it allowed to be covered by plantation in the first place and even recorded as such in government records? However, this amendment may have some merit if such forest land is actually used for the purpose for which it was originally acquired. The Act should have at least stipulated that if such forest lands are used for purposes other than those for which it was acquired, it would attract applicability of FCA 1980. Besides, it should not have excluded government land which has been recorded as forest but not notified as forest even before the date of SC judgment if it has not been put to non-forest use already. By resorting to blanket exemption in such cases, the amendments have facilitated diversion of forest land for non-forest purposes and subordinated forest protection to economic growth.
Laxity in Protection of Forests
The government’s lack of seriousness to protect forest land is evidenced not only in respect of forests not notified but also in failing to vigorously resist diversion of ‘notified’ forests for economic growth, particularly after the onset of the market economy and speedy forest clearance of such diversion for ease of doing business. As a result, between 1980 and 2020 1.5 million hectare of forest land has been legally diverted (Noronha, 2023). Worse, it is complicit in neglecting enforcement and monitoring of compliance with the conditionalities subject to which diversion was permitted. As per the Comptroller and Auditor General Report 2013, numerous instances of unauthorised renewal of leases, illegal mining, continuing of mining leases despite adverse comments in monitoring reports, unauthorised change of status of forest land, and arbitrariness in decision on forestry clearances were observed. The legal diversion of forest land is accentuated by illegal actions (Ghosh, 2016).
Unjustified Exemption for National Security
Regarding exemptions granted for security and defence purposes within 100 km of India’s borders and Left Wing Extremism affected areas from the purview of FCA, the areas to be impacted most are the northeastern states which have the highest proportion of forest cover with respect to their geographical area and are also biodiversity hotspots. As per India State of Forest Report 2021, Mizoram has 84.53 per cent, Arunachal Pradesh 79.33 per cent, Meghalaya 76 per cent, Manipur 74.34 per cent, and Nagaland 72.90 per cent forests in their territories (Chaitanya, 2023). These states have raised the objection that given their small geographical area, virtually their entire territories would be covered by such an exemption which would also centralise control over use of their forests, eroding their autonomy for conserving forests and excluding local authorities and communities from having a say in the matter (Khan & Monika, 2023). As for the need to fast track the execution of strategic and security-related projects, the analysis of data over the last many years shows that not a single defence-related project was rejected by the concerned committees at the regional and central level (Chaitanya, 2023) and, in fact, 10 per cent of forest land was diverted for such projects (Noronha, 2023). There is little rationale, therefore, for such an exemption. Besides, environmental clearance is necessary to minimise long-term environmental and climate risks to the projects as northern international borders are in the Himalayas, a geologically active region (Chaitanya, 2023).
Providing Connectivity to Habitations
The exemption of up to 0.10 ha of forests alongside public roads and railway track lines to provide access of habitations and establishments to main arterial roads and other public utilities will affect the local ecology and pose a grave risk to the remaining forest as it would lead to its degradation and encourage encroachments on it. The most damaging part of the amendments is to include zoos, safaris, and eco-parks inside the forest areas (reserve forests) as forest activities for promoting ecotourism. These are the very areas from where the tribals were evicted and the scope of community access was restricted and tightened as they were considered a threat to protection of wildlife (Shrivastava, 2021). The tourism related activities in these areas will create a huge pressure on the ecosystem and disturb the animal movement and their habitats affecting their behaviours and breeding pattern. Increased foot fall would result in littering and pollution and may also lead to cultural erosion and commodification of local cultures (Khan & Monika, 2023). The promotion of ecotourism would adversely affect the access of tribals to livelihood resources as they would compete with the tourists for limited resources. Revenue generated from such facilities would go to government account and would not benefit the local communities.
Climate Change Mitigation Target
Yet another reason for amendments of FCA is the need to increase the tree and forest cover for the creation of carbon sinks. The creation of carbon sinks by plantation rather than conserving the existing forests does not promote eco-restoration. Natural forests are far more effective in carbon sequestration, by some estimates 40 times higher, compared to plantations. Compensatory afforestation cannot substitute for natural forests (Ghosh, 2016). ‘A forest has numerous species of flora and fauna living in a complex ecological mix with natural nutrient cycling process that cannot be restored by creating monoculture plantation’ (Saxena, as cited in Ghosh, 2016). This is obviously an attempt to open forest for plantation by attracting funding for carbon trading (Kohli, as cited in Shrivastava, 2021) and external intervention in respect of its contents.
Systematic Subversion of Forest Rights of Tribals
While the Act liberally diverts forest for non-forest use, there is no mention, let alone recognition, of efforts by local communities particularly the tribals in protecting and regenerating these forest areas (Bijoy, 2023; Dhoop, 2021). The amended law does not harmonise with Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) as it infringes upon the rights of tribals and forest dwellers granted under it (Campaign for Survival and Dignity, 2023). The FRA recognises both individual and community rights and empowers the Gram Sabha of the village to regulate access to forest resources. Its consent is necessary for the diversion of forests. These changes also undo the SC judgment in the Niyamgiri Case (2013) (Chandra, 2019) where the requirement of consent of Gram Sabha has been reiterated before the diversion of forest land. Similarly, the Biodiversity Act, 2002 which empowers Biodiversity Management Committees to conserve and protect forest resources has been completely ignored. The amendments have been carried out in total disregard to the explicit objections of the Ministry of Tribal Affairs (MoTA) which is the nodal ministry for enforcement of FRA (Bijoy, 2023).
The Amendments Disregard Other Central Laws
The amendments also ignore the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) which empowers a Gram Sabha of a village to preserve, among others, community resources, which include land and forests along with minerals and water bodies in them. It also mandates prior consultation with Gram Sabha or the panchayat for the acquisition of land. The amended law also disregards the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which requires prior informed consent of affected families before proceeding with acquisition and also mandates prior consent of Gram Sabha/Panchayat in Schedule V Areas and Autonomous District Councils in the Schedule VI Areas in case of acquisition of land.
Exclusionary Afforestation
The programmes and schemes proposed to meet targets of enhancing carbon stocks—National Afforestation Programme, Reducing Emissions from Deforestation and Forest Degradation (REDD) + Strategy, Green India Mission and Compensatory Afforestation—are all forest bureaucracy-centric and are proposed to be implemented through Joint Forest Management Committee which is a structure controlled by the forest department. This is designed to subvert the Gram Sabha-controlled management under FRA for the execution of such programmes. In the Green India Mission, representatives or groups working with Scheduled Tribes (STs) and Other Traditional Forest Dweller (OTFD) communities have been excluded from the process of development of climate action plans and preparation of the National REDD + Strategy. The MoTA has been excluded from the apex committee to meet Nationally Determined Contribution (NDC) 2 commitments. There have been instances of climate mitigation afforestation programmes being used as cover to include land of STs/OTFDs where forest rights have been claimed or recognised, for which they are neither informed, consulted, nor compensated (Dash, 2022). Through public-private partnerships, a significant chunk of degraded forest is being handed over to the private sector for raising monoculture plantation of industrial species with no involvement of affected local communities. These efforts will deprive access of STs/OTFDs off resources from such forests, further marginalising them and increasing their vulnerability to the impact of climate change.
Overall, the amendments are regressive in narrowing the forest area from the ambit of FCA regulation besides subverting the rights of forest-dwelling communities conferred by Central laws. This calls for the mobilisation of adversely affected communities to demand harmonious integration of FRA into the enforcement of the amended law to protect their interests.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.