Meenal Tatpati
In July 2024, the Supreme Court began hearing a PIL filed against the contentious Forest Conservation Amendment Act, 2023 also called the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 2023 (‘the 2023 Act’), which was passed in Parliament in August and came into force in December 2023. The PIL has highlighted the concerns of several forest officials, civil society members, and grassroots activists concerning the 2023 Act. According to them, the amended Act blatantly violates several principles laid out in Indian environmental jurisprudence including the precautionary principle, the principles of intergenerational equity and non-regression, and the doctrine of public trust. Further, there were several representations made against the Amendment Bill highlighting that the Amended Act would adversely affect the rights of forest-dwelling communities and other local communities that have rights and access to forests, especially their right to Free Prior Informed Consent (‘FPIC’) to any activity that takes place on forest land.
The Fundamentals
Before the enactment of the Forest (Conservation) Act, 1980 (‘FCA’) Section 27 of the Indian Forest Act, 1927 was used by State Governments to de-reserve Reserved Forests. For nearly two and a half decades before the enactment of the FCA, more than 41 lakh hectares of forest land had been diverted. This was also the decade where people’s movements like the Chipko and Appiko were launched against the prevailing norms of exploitation of forests for commercial purposes. This decade also witnessed India leading the United Nations Conference on the Human Environment. Thus, there was a growing consciousness of the need to restrict and regulate the diversion of forest land. In 1979, a secret note was sent by the Ministry of Agriculture to the Cabinet, observing the loss of forests and the intense pressure on forests for developmental activities. The note highlighted the need for a legislation that could invest powers in the Central Government to assess the reasons for the diversion of forest land. It was in this context that the Forest (Conservation) Act, 1980 (‘the Act’) was enacted. It had 5 sections and a clear and concise Preamble: 'An Act to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto.' It afforded restriction to the diversion of forests or use of forest lands for ‘non-forest’ purposes. The Act made the prior approval of the Central Government mandatory for the diversion of forests for certain activities. It created a system in which proposals seeking the diversion of forest lands would be placed before the Forest Advisory Committee at the Centre, which was tasked with deliberating on proposals based on several considerations including, the location of the forest land, village details, justification of locating the project on forest land, cost-benefit analysis, the status of environmental and wildlife clearance, the land required for compensatory afforestation etc.
Now, the Act itself was only made up of 5 sections and was implemented through clarifications or ‘notifications’ by the Ministry of Environment and Forests (now called the Ministry of Environment, Forests and Climate Change (‘MoEFCC’)) on the one hand, and the interpretation of the Act and these notifications by the Apex Court on the other. Since 1996, the Supreme Court has been deliberating on various aspects of the Act in the form of the ongoing mandamus of the T N Godavarman Thirumalpad v Union of India, which has led the Apex Court to clarify what the term ‘forest land’ encompasses, the entire mechanism of Compensatory Afforestation and the constitution of and the mandate given to the Central Empowered Committee on Forests as an amicus curiae to the court on forest matters. Thus, the scope of the Act has been deliberated upon by the judiciary. The judiciary’s interpretation of the Act has been critiqued for expanding the scope of the Act by reinterpreting the meaning of ‘forests’ on the one hand, whereas, on the other hand, the Court’s interpretation has been hailed to be following the intended scope by the Parliament. However, it is important to note that since it was enacted, the governance of forests has undergone a major change due to the enactment of such legislation as the Panchayats (Extension to Scheduled Areas) Act, 1996, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 as well as India’s commitments towards climate change adaptation and mitigation measures. With this in mind, the Ministry of Environment, Forests and Climate Change released a Consultation Paper on Proposed Amendments to the FCA in October 2019, followed by amended Rules in 2022. However, it was clear from these two documents that the attempt was to change the complete regime of the Forest Conservation Act, 1980; and not particularly to favour conservation.
The New Forest Conservation Act: Conservation or Ease of Forest Clearance?
The Amended Act begins with a long preamble, stressing the importance of fulfilling objectives such as ‘maintaining and enhancing carbon stocks,’ ‘facilitating economic needs’ and ‘improvement of the livelihood of forest-dependent communities’. However, the reading of the Act along with its rules first amended in 2022 and then in 2023 seem to be facilitating the objective for economic needs only.
The Act specifies the non-applicability of the provisions of the Act to certain categories of land including:
(a) forest land within 100 square kilometres of the Line of Control or the Line of Actual Control for ‘strategic linear projects’ of ‘national importance and concerning national security’. This was already exempted from the purview of the Act by guidelines dated 4 July 2014 for the LAC. This has now been extended to the LOC. Interestingly, highway projects related to defence and strategic importance within 100 kilometres of LOC and LAC have also been exempted from requiring Environmental Clearance under the EPA in June 2022 under a notification.
The Act seeks to absolve categories of projects from seeking Forest Clearance under the Act, including:
(a) ‘security-related infrastructure’ up to 10 hectares, where it fails to define what constitutes ‘security-related infrastructure’.
(b) ‘defence related projects or camps for paramilitary forces or public utility projects, as may be specified by the Central Government, the extent of which does not exceed five hectares in a Left-Wing Extremism affected area as may be notified by the Central Government’. These have been accorded general clearance under the Act through guidelines issued in 2013, but they also identified 35 districts where this would be applicable. It has now prospectively allowed general exemption to such projects in any such area as will be notified by the central government.
Apart from these exemptions, it also expands on activities that are not considered ‘non-forest’ activities, which are therefore automatically exempted from requiring forest clearance. These include silvicultural operations, the establishment of zoos and safaris in forest areas other than protected areas owned by the government or any authority, eco-tourism facilities, or any other purpose specified by the central government.
It is important to also mention that the Act was passed through the Lok Sabha amidst the absence of several opposition parties.
These are indeed a gamut of large infrastructural activities that are sought to be exempted from the Act and coupled with the addition of the phrase ‘subject to terms and conditions specified by the central government,’ provide scope for the Central Government to proactively issue several notifications exempting more projects. Furthermore, it amends the most important aspect of the Act which is Section 2. The previous Act stated that no state government or any other authority shall make any order, without the prior approval of the central government to take away the reserved status of a reserved forest or any forest land to be used for any non-forest activity or leased to any private person or authority, corporation agency or organisation which is not owned, managed or controlled by the government. As noted above, this was the key provision that overrode Section 27 of the Indian Forest Act. However, this is now amended to state that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or any authority, corporation, agency or any other organisation ‘subject to terms and conditions specified by the central government.’
Forest (Conservation) Amendment Rules, 2023 (‘the Rules’) further the objectives of increasing the forest and tree cover to one-third of the country’s land area and the creation of ‘carbon sinks’. The rules provide for the creation of ‘land banks’ and a ‘compensatory accreditation scheme’ for compensatory afforestation. In doing so, the rules pre-empt the diversion of forest land on a large scale! When read in conjunction, the Act and Rules provide a clear picture that by creating plantations pre-empting compensation for future diversion of forest land, the Amended Act is addressing the raising of plantations rather than preventing the loss of valuable and fast declining old growth forest. These created plantations are also to be registered under the Green Credit Registry and are to be eligible for allocation of green credits under the Green Credit Rules.
These provisions look particularly concerning when we look at international commitments that India is a part of. As part of its commitment towards the Convention on Biological Diversity, India has reported that 22% of its area (which is the forest area, including Reserved Forests, Protected Forests, Unclassed Forests and forests of all other descriptions under the jurisdiction of the forest department) are ‘protected’ under the IUCN Protected Areas categories. This is towards the fulfilment of Target 3 under the Kunming Montreal Global Biodiversity Framework. Target 3 looks at creating a network of Protected Areas (‘Pas’) and other effective area-based conservation measures on at least 30% of terrestrial, inland water, coastal and marine areas. As per the Amended Rules 2023, plantations under compensatory afforestation will need to be recorded as protected forests under the Indian Forest Act and will thus be considered under IUCN category Protected Areas. Considering that nothing is specified in the compensatory afforestation about the biodiversity value of these plantations, it is concerning that the biologically rich old-growth forests will be replaced by very low biodiversity value plantations of limited species and will still be considered as PAs and be reported towards fulfilling the commitments under Convention on Biological Diversity. At the same time, the exemption of several categories of forest land as well as the blanket exemption given to many projects from the forest clearance process, thereby facilitating biodiversity loss is a direct contravention to this commitment.
It is clear that the intention and purpose of the Act have shifted considerably from deliberating on the diversion of forest land on a case-to-case basis towards facilitating the diversion of forest land, without any deliberations for certain kinds of activities as well as creating a checklist for meeting international obligations on biodiversity and climate change.
What of the People of the Forests?
It is important to note here that India’s forest policy up until the 21st century did not take into account nearly 300 million forest-dependent people. The Indian Forest Act, 1927 was used to bring land in diverse ecosystems into the “recorded category” of forests. In most cases, this is done without recognising the pre-existing rights of people on these lands.
In 2007, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (‘the FRA’) was brought into force. It was enacted to recognise and vest forest rights in forest-dwelling communities that have been residing in forests for generations but whose rights were not recorded. It provides for the recognition of tenurial, and other securities governing the lives and livelihoods of forest dwellers and empowers them with rights and responsibilities over governance, management, use of and access to forest land and its many resources. Section 4(5) of the FRA attempts to prevent the relocation and displacement of forest dwellers by providing that “no member of a forest dwelling scheduled tribe or other traditional forest dwellers shall be evicted or removed from the land under his occupation till the recognition and verification process is complete.” The FRA, therefore, addresses the historical injustice done to forest dwellers including those who were forced to relocate due to State-led developmental interventions. Additionally, Sec 3(1)(i) empowers forest-dwelling communities to protect, regenerate, conserve or manage their community forest resources which they have been conserving traditionally for sustainable use while Section 5 empowers the village Gram Sabha (‘GS’) to ensure that the habitat of forest communities is preserved from any form of destructive practices affecting their cultural and natural heritage. The same section also empowers the GS to make decisions to regulate access to community forest resources and stop any activity that adversely affects wild animals, forests and biodiversity and to ensure that these decisions are complied with. Thus, the FRA empowers communities and their community institutions as statutory authorities with the power to protect and manage forests.
It is clear from these provisions of the Act that there is considerable overlap between the process of diversion of forest lands and the FRA. It is important that any decision-making on forest land cannot leave out forest dwellers who may be rights holders over such forest land. Therefore, in August 2009, the MoEFCC issued a notification linking the provisions for obtaining forest clearance under the Forest (Conservation) Act, 1980 to the FRA. The circular (‘August 2009 circular’) asked for documentary evidence pertaining to the completion of the process of recognition and vesting of rights of Scheduled Tribes and Other Traditional Forest Dwellers (‘STs and OTFDs’) under the FRA, in areas facing forest land diversion. Additionally, it also sought the written, free prior informed consent of 50% of all affected Gram Sabha members for the diversion of forest land. Yet, the actual implementation of the circular remained a mere checklist provision. At the same time, there were consistent efforts to ensure that this notification, especially the requirement for free prior informed consent was summarily diluted. This was done through several notifications and letters issued by the Ministry of Environment and Forests diluting the free, prior informed consent provision for particular activities requiring forest clearance like linear projects and prospecting for minerals.
In 2014 and 2017, the Forest (Conservation) Rules were amended to compliment the August 2009 circular by placing the onus on District Collectors to fulfil the provisions of the FRA for forest diversion by requiring them to, complete the process of recognition and vesting of rights under the FRA, for the entire forest land indicated in the proposal for diversion; to obtain consent of each Gram Sabha having jurisdiction over the whole or part of the forest land indicated in the proposal for the diversion of such forest land and any compensatory and ameliorative measures. These processes were also to be completed in a time-bound manner. This ensured that importance was placed on completing the process of recognition and vesting of rights under the FRA, while the project proposal was being examined at the level of the state before being sent for Stage I approval to the central government and therefore allowed for the vetting and screening of the processes under the FRA, first at the level of the state and subsequently by the Central Government. However, the exemption notifications for obtaining prior informed consent for certain projects remained in force.
In the current rules, the ‘settlement’ of rights under FRA needs to be completed after the prior approval from the central government for diversion, assignment of lease or de-reservation has already been received. There is no requirement at any stage to seek prior informed consent of Gram Sabhas, either for forest diversion or for compensatory and ameliorative measures. Instead of talking about ‘recognition of rights’ in their entirety, including rights under the provision of Community Forest Resource (‘CFR’) Rights which empower the local Gram Sabhas to sustainably use, manage and conserve forests within their customary boundaries, these Rules talk about ‘settlement’ of forest rights, explanation for which remains unclear. It is also important to note that despite the provisions of the 2014 and 2017 Rules, the compliance of the Rules with respect to recognition of forest rights as well as prior informed consent was already disappointing. Yet these provisions were important for providing legal safeguards against the violations of forest rights of the STs and OTFDs. The systematic erasure of this clause will further intensify injustice and consequently exacerbate conflicts during forest diversion and compensatory afforestation efforts. Furthermore, the recognition of forest rights post prior approval of forest clearance for a project is meaningless. Project proponents and User Agencies would pursue State Governments or Union Territories for the diversion of forests at the earliest with or without settlement of rights as a fait accompli situation since they would have already paid the compensatory levies to the government and would expect the central government to provide forest clearance.
Further, the Rules also provide compensatory afforestation to be carried out on non-forest lands from where the relocation of a village/habitation from a National Park, Wildlife Sanctuary or Tiger Reserve and designated or identified tiger or wildlife corridors. These areas can be identified as protected or reserved forests. As stated above, such areas can also be ‘counted’ as progress towards Target 3 of the Kunming Montreal Global Biodiversity Framework. Furthermore, relocation from protected areas is to be funded by the Compensatory Afforestation Fund established under the Compensatory Afforestation Fund Act, 2016 (Section 6 (d)). Evidence from the ground clearly indicates that ‘voluntary’ relocation is often not voluntary but forced under various circumstances. The Wildlife Protection Amendment Act (WLPA) of 2006 and the FRA require that any relocation from a Critical Tiger/ Wildlife Habitat of a National Park, Sanctuary or Tiger Reserve can only take place after recognition of rights, Gram Sabha consent to the relocation and case-by-case establishing that presence of local communities in the area is causing irreversible damage and there is no possibility of co-existence. Yet in implementation, the focus continues to be on the old approach of relocation being the key strategy for conservation with huge amounts of money being pumped into it.
This provision read in conjunction with the provisions of these Rules will ensure that CAMPA funds are first used to “facilitate” relocation and then the same land will be used for compensatory afforestation for diversion of forest land in other areas. These rules will further strengthen relocation-based conservation by considering relocation as compensatory afforestation and hence meeting the climate targets while restricting any possibilities towards co-existence and community-based conservation in and around PAs.
Conclusion
It is clear that the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 2023 and amendment rules contradict the originally stated objectives and spirit of the FCA, which are to strictly regulate and control the indiscriminate diversion of forests for the sake of current and future generations. The law and its rules will have a significant negative impact on the forest ecology in several ways including by equating dense plantations of any type with biologically and culturally diverse old-growth forests. These rules will also severely impact the rights of the Scheduled Tribes and Other Traditional Forest Dwellers as recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act), 2006 and are in contravention of India’s core commitments under the Convention on Biological Diversity, which strongly advocates the central role of the local communities and indigenous peoples with full and effective recognition of their rights in achieving conservation goals as well as climate targets.
Meenal Tatpati is a lawyer researcher with a keen interest in the jurisprudence and governance mechanisms of forests. Her earliest work has been with research and advocacy on the implementation of the Forests Rights Act and its interplay with other forest legislation. She has documented life stories of the women of the Dongria Kondh community in Odisha, India and the Raika pastoralist community in Kumbhalgarh Wildlife Sanctuary. She is a member of Kalpavriksh and is currently working as a research and policy associate with Women4Biodiversity.
Feature Image: An open-cast coal mine in Anugul, Odisha.
This post is part of a series on 'Rights to the Forest'. Read the other posts here.
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