Forest cover protection | An act of contention

On August 2, the Rajya Sabha passed far-reaching amendments to the Forest (Conservation) Act, or FCA, 1980, a week after the bill saw its way through the Lok Sabha without any debate. It comes in the face of protests by conservationists who claim the changes will nullify the gains made in forestry over the past four decades. The FCA is a key legislation that comes into play the moment any land designated as forest-under the Indian Forest Act, 1927, or any other law-has to be ‘de-reserved’ or put to use for ‘non-forest purposes’ by the government or a private agency. Any such move requires thorough scrutiny before it can get the Centre’s approval.

It was in March this year that the Union ministry of environment, forest and climate change (MoEFCC) had tabled the draft Forest (Conservation) Amendment Bill, 2023, in Parliament, following which it was referred to a joint parliamentary committee (JPC). The JPC submitted its report on July 20, curiously proposing no changes, even though it had received more than 1,300 responses, many of them objections from environmentalists, state governments and other stakeholders, as well as dissenting notes from some of its members.

From mitigating the impact of climate change to fast-tracking strategic and security-related projects of national importance, the Union government has cited multiple reasons necessitating the amendments. But with critical issues left to the discretion of the executive, many stakeholders fear possible misinterpretation and misuse of the law. Among them are 400 ecologists, students and researchers who had written to the Union environment and forest minister Bhupender Yadav recently, but their concerns seem to have been brushed aside, as also those of several states that had sought changes in the provisions.

The provisions include a preamble to be added to the principal Act, envisaging “an increase in the forest and tree cover to one-third” of India’s land area. Ironically, the amendments will do quite the opposite. Per the India State of Forest Report (ISFR), 2021, 71.4 million hectares (mha), or 21.7 per cent of the country’s geographical area, is under forest cover. (Combining that with the tree cover, the total comes to 80.9 mha, or 24.6 per cent of the area.) Though estimates may vary, up to 28 per cent, or a whopping 20 mha, of these forests stand to be taken out of the ambit of the FCA once the bill gets notified in the official gazette.

The amendments, suggest legal experts, may go against the Supreme Court’s 1996 verdict that has pretty much driven the forest and wildlife jurisprudence for decades. While interpreting the 1980 Act, the apex court in its ruling in the T.N. Godavarman Thirumulpad vs. Union of India case on December 12, 1996, had clarified that since the legislation’s purpose was to check deforestation that impacts ecological balance, it would apply to all forests, irrespective of the land ownership-whether government or private. States were told to work out a definition of such ‘deemed forests’ in light of the ruling. The following year, Madhya Pradesh-the state with the largest area of forest cover-decided that any land with 200 or more trees per hectare will be defined as a forest. Many states, however, have failed to comply, leaving large tracts of green cover vulnerable.

This is because, post the amendment, the Act will cease to apply to any land that the authorities have failed to include as a forest in government records after October 25, 1980, the day of its enactment. Similarly, it will leave out the parcels of land that have been redefined from ‘forest use’ to ‘use for non-forest purposes’ by any empowered authority before December 12, 1996. In effect, any non-forest activity in these forests will not need any clearance under the FCA. This could affect plantations, mangroves and scrub forests, including an estimated 50,000 acres of forested land in the Aravalli range in Haryana, that have not been notified as a ‘deemed forest’ yet. Environmental lawyer Ritwik Dutta suggests a major trigger for the amendment was the SC’s 2022 ruling in the Narinder Singh vs Divesh Bhutani case pertaining to Aravallis. It had reiterated that the term ‘forest land’ not only includes land notified as such in government records but also that considered ‘forest’ based on its ‘dictionary meaning’ as elucidated in the 1996 ruling and the legislative intent of the 1980 Act.

So, how well has the FCA served its intended purpose of conserving forests so far? According to the MoEFCC, between 1950 and 1980, 4.5 million hectares (mha), or 150,000 ha annually, of forest land was diverted for non-forest use. By the early 2000s, in the wake of the FCA, this diversion had gone down to 16,000 ha annually. In fact, between 1980 and 2020, the total forest land diverted is only 1.5 mha, with about 10 per cent going to strategic and defence projects. And fast-tracking such “strategic linear projects of national importance”, like highways, pipelines, tunnels and bridges, is the reason cited for exempting forest land situated within a distance of 100 km along India’s international borders, Line of Control and the Line of Actual Control from the law’s purview.

While national security is undoubtedly of paramount importance, the areas to be impacted are among the most adversely affected by deforestation lately-notably in the Northeastern states. Though the green cover in these states is over 70 per cent, any compensatory plantations-for which the Centre is to frame the guidelines-are unlikely to offset their rich biodiversity, say experts. The amendment bill makes similar exemptions for forest land up to 10 ha for the construction of security infrastructure or up to 5 ha for setting up paramilitary camps and public utility projects in areas affected by Left-wing extremism. Also, small establishments and habitations on the side of public roads and railway lines will be able to get access to main arterial roads and other public utilities by bringing up to 0.1 ha of forest land outside the purview of the Act.

All such exemptions notwithstanding, the Centre claims that “carrying forward the rich tradition of preserving forests and their biodiversity” is at the heart of the amendments. Among the stated objectives is mitigating the impact of climate change and achieving the national targets of net zero emission by 2070. “It has been observed,” notes a recent government circular, “that due to apprehensions that plantations on the lands of individuals and organisations can attract the FCA, the afforestation and plantation of trees outside forests is not getting desired impetus, which in turn is becoming a hindrance in enhancing green cover.” Thus, the stated aim is to remove any “ambiguity” by prescribing the extent of applicability of the Act on various types of lands. The government claims its immediate target is to increase the tree and forest cover for the creation of a carbon sink of an additional 2.5 to 3.0 billion tonnes of carbon dioxide equivalent by 2030.

According to Prerna Singh Bindra, a former member of the National Board for Wildlife, emphasising the creation of carbon sinks by enhancing the green cover rather than conserving the existing forests is “counter-intuitive”. “It has been well-established by numerous studies that natural forests are far more effective in carbon sequestration-by some estimates, 40 times higher-as compared to plantations,” she says. There are others in the forestry community, however, who have welcomed the bill. Talking specifically about the Northeast, for instance, R.N. Saxena, a former principal chief conservator of forests, Madhya Pradesh, notes that “above a certain height, where most of the security-related border projects are planned, there is hardly any vegetation, and hence no loss of forests”. In case a project is impacting a national park, it will still require the necessary wildlife clearances, he adds.

But there are concerns of the amended law infringing upon the rights of tribals and other traditional forest-dwellers by curtailing the powers granted to the local bodies under the Panchayats (Extension to the Scheduled Areas), or PESA, Act, 1996, Forest Rights Act (FRA), 2006, and other such legislations. “In effect, the gram sabha that is to grant consent for projects under the PESA Act will no longer be required to do so,” explains Sharachchandra Lele, distinguished fellow at the Ashoka Trust for Research in Ecology and the Environment. “Similarly, under the FRA, the consultation clause with the gram sabha has also been weakenedâ€æfurther reducing the scope for consultation.”

The recent floods in North India have shown that nature has its way of reclaiming lost ground. It is, therefore, imperative that the Union government address all key concerns left out in the bill while framing the supporting rules and guidelines. Exhaustive consultation and engagement with all stakeholders will go a long way in conserving India’s forests and preventing environmental hazards, whose fury we are becoming regularly subjected to.