Understanding the proposed amendments to the Forest Conservation Act, 1980

The Union Ministry of Environment, Forests and Climate Change recently issued a consultation paper recommending the amendment of the Forest Act, 1980. While the draft is not entirely in bad form, to its own detriment, the government excludes mentions of climate change and tribal rights, among other issues. NEELESHWAR PAVANI writes about the pros and cons of the proposal, intended to ease land acquisition and resource extraction procedures.

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ON October 2, 2021, the Ministry of Environment, Forests and Climate Change (MoEF&CC) issued a letter and consultation paper documenting proposed changes to the Forest Conservation Act, 1980. Amendments to the Indian Forests Act, 1927, were also proposed earlier this year, in March 2021, but the proposal has been caught in the pipeline of the deliberative process.

Also read: PM Invoked Gandhi, Centre Sought Dilution of Forest Act on Oct 2

The relevance of the Supreme Court judgment in T.N. Godavarman

The consultation paper elaborated on the existing incongruities in the application of the Forest Conservation Act in light of the directives given by the Supreme Court of India in T.N. Godavarman's case, more than two decades ago. It is paramount to first understand the order in Godavarman , which, in fact, is an ongoing case wherein the Supreme Court, by way of a continuing mandamus, is overseeing the vicissitudes of  various sensitive facets of the environment. The December 12, 1996 order of the Court essentially did three important things in the backdrop of the Forest Conservation Act:

Firstly, it temporarily suspended all felling/cutting of trees in forests across the country, and absolutely banned the practice of cleaving trees in the north-eastern part of India.

Secondly, it directed each state government to constitute expert committees that would identify forests, notwithstanding whether they had been notified under the Forest Act, 1927, owned either by the government or private persons. The committees would further identify forest areas that had been depleted and degraded and submit reports accordingly.

Also read: Govt using disputed rule to escape environmental clearance of highway projects despite SC direction to review rule 

Thirdly, it directed each state government to evaluate the feasibility of having sawmills, timber cutting industries, their sustainability with respect to the surrounding environmental conditions, and to determine whether the existing facilities were ecologically compromised in their functioning and submit reports accordingly.

Lastly, it set aside all contradictory orders that had been passed by high courts in respect of sawmills, timber industrial units and other industries that the Court was dealing with, and directed that this one single order be implemented.

The consultation paper addresses this issue reasonably, and argues that due to the overarching definition of forests as construed by the Supreme Court, expansion of the National Highways, Roadways, and Railways has become cumbersome due to difficult land acquisition and approval processes involved under the Forest Conservation Act. This, according to the Ministry, chips at the efficacy of the outcome by way of deferrals, despite the government's compliance with mandatory compensatory afforestation requirements. It states that the Supreme Court's interpretation of 'forests' ignores the topography of India, and the fact that being a tropical country, it has plenty of wild vegetation which would immediately attract the 'dictionary meaning' of forests. It states further, and I quote:

"Moreover, during the intervening period of more than 40 years, since the enactment of the Act, there has been considerable change in the ecological and environmental regimes. Policies and programmes towards the conservation, protection and development of the natural resources have witnessed transformational shift across the globe to cope up with the changing ecological, social and economic environment. In order to address such dynamic changes, Ministry is considering introducing an enabling provision in the Act to keep certain pristine forests showcasing rich ecological values intact for a specific period."

Difficulties caused by the Act

The paper then explicates the various difficulties the government faces as a result of the Act. Infrastructural glitches are a reality at the international border, where strategic defence planning is often stalled as a result of complications created by the Act. The ambiguity in the provisions related to leasing a portion of the land to mining industries for non-forestry purposes is another issue, as a result of the absence of clarity on whether an environmental clearance is required by the lessee after having already obtained permission from the Central Government under the Act.

The paper goes on to describe grievances over not being able to use latest technologies such as Extended Reach Drilling, a horizontal drilling method used to extract natural resources from afar, which would allow extraction from forests without marring the potency of the soil or the land.

Also read: Global environment outlook dire but not unassailable: GEO-6

The consultation paper then suggests that the explanation of the term 'non-forestry use' in Section 2 of the Act be amended, so that activities that are ancillary to conservation  of  forests  and  wildlife, such as the establishment of zoos, safaris, and forest training, are not considered non-forestry activities under the Section. The proposal also includes recommendations to increase the compensatory levies and fortify the Act by enhancing the penalties for offences under the Act. It also recommends that offences under the Act be made cognizable and non-bailable in order to increase deterrence, and to avert mischief.

The pros and cons of the proposed amendment

The proposal heralds both good and not so good news. The good in the suggestions is that the unrealistically insufficient punishments under the Act would be strengthened and a violator risks his personal liberty. Another beneficial point of the suggestions is that it would further improve the connectivity infrastructure of the country insofar as roadways and highways are concerned, which would in turn result in the country's prosperity in one form or another. The third is that the genuine concerns of the armed forces and border defence intelligence agencies would be streamlined to ensure adherence with necessary timelines.

The not so good in the proposal of the MoEF&CC is that it wants to commercialize private forest land by adopting new methods of Extended Reach Drilling, which is another way of expropriating resources from wildlife habitats, and which may seriously impact the balance of the biosphere.

Another aspect that is evident in the paper is the glaring ignorance of the state governments, who have not been mentioned even once.

When a piece of land (a limited area with an upper limit to its usage) is proposed to be converted for 'agroforestry', the relevant state government is nevertheless an equal stakeholder in the decision-making process, notwithstanding an express provision including 'forests and wildlife' under the concurrent list of the Seventh Schedule of the Constitution. This is because the states that are prone to floods or cyclones and other natural calamities shall have the right to reserve from such kind of interference as their topography would be affected by activity, and further worsen their annual miseries in terms of rescue operations. They must have the right to keep their green belts intact.

Also read: Analysing India's Climate Change Policy

Another arbitrary feature of this proposal is that it envisages that the enhanced penalties that are collected would be deposited in the central government's coffers and not on a sharing basis with the forest funds of the respective state governments. The proposal is also vague about the concept of, and fails to mention, climate change in any capacity, which is unusual given the rising number of climate change related disasters India has weathered in the last few years alone.

Exclusion of relevant considerations

If today, any proposal with respect to making alterations to the environment has to be made, be it forests, rivers, mountains, seas, oceans and other protected habitats, it must be juxtaposed against the consequences of climate change, and enmeshed with the principles of inter-generational equity and sustainability.

The bigger question here is whether any country can actually afford to reduce its green cover in terms of forests given that climate change is the product of mankind's ever-increasing carbon footprint. This reality is in parallel marked by a spurt in the reduction of the previously untouchable green zones of the world, mainly for economic avarice, likely causing unimaginable damage to the ozone layer.

In the last one and a half years, the pandemic has refreshed the United Nations' zeal to inform the world about the havoc that climate change can wreak. The organization has since published several reports in collaboration with its functionaries such as the World Health Organization, the Intergovernmental Panel on Climate Change, the World Meteorological Organization, the United Nations Educational, Scientific and Cultural Organization, and the World Science Council. The reports in sum and substance spell disaster for the world if course corrections are not implemented with a ringing sense of urgency.

A recent World Meteorological Organization study states that the frequency of natural disasters such as floods, landslides, tornados, earthquakes and so on will increase manifold in all parts of the world, and that the rise in temperatures will make many countries unlivable. The poorest countries in the world are the most vulnerable to these climate change related risks.

All these reports have empirically recorded the consistent increase in natural disasters over the last three decades, which should be the greatest impetus to move towards sustainable consumption and increased green cover through afforestation.

However, this itself should not be considered terrible as this consultation paper is amenable to comments and suggestions, and is not a final draft.

Moreover, the paper fails to address the rights of indigenous communities that inhabit the forest, and who will be affected by any amendments to the law. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act) operates like a penumbra over the Forest Conservation act, which in other words means that the rights of forest dwellers belonging to indigenous tribes stand secured. The central government can, under the Forest Rights Act, permit a numbered felling of trees only for the designated purposes as written in the Act, such as building schools, dispensaries, fair price shops, borewells, among others. It does not confer powers on the government to usurp land for the purposes of 'Extended Reach Drilling' or any such profiteering activity which may have long lasting impact on the region. The government, therefore, would be needing the prior approval, in a written format, of the local governing body or panchayat to commence any operations.

In more than one way the Supreme Court's order in Godavarman was a respite to forest dwellers as it directed the closure of saw-mill units, and timber and plywood units which largely exploited these communities and impinged on their space. The order was, in many ways, an outline that the parliament used to enact the Forest Rights Act.

Luckily, the proposal coincides with the recent ruling of the Supreme Court in Municipal Corporation of Greater Mumbai Vs. Ankita Sinha from October 7, which held that the National Green Tribunal (NGT) is endowed with the powers to suo motu taking cognizance of matters.

The judgment, while conferring on the NGT powers accorded to High Courts and the Supreme Court, recognizes the special purpose and vision with which the tribunal was established. The apex court declared that the National Green Tribunal Act is distinguished and stands at an elevated pedestal in comparison to other tribunals, since life itself depends on the environment. The Court recognized the threats to the ecosystem that human induced climate change has inflicted and stated that the Act must be interpreted in a manner that is in consonance with the ultimate objective of the legislation.

The judgment ought to be celebrated, as it incorporates the Directive Principle relating to the protection of the environment, which is inextricably interlinked with the right to life. It also magnifies the status of the authority that checks and balances environmental wrongs against those of a constitutional authority.

If at all the proposal is passed as law without any changes, it will surely be checked and, if necessary, be altered accordingly. However, viewed in its completeness, this proposal is not bad per se, although lacking in some areas.

(Neeleshwar Pavani is a Law Researcher-cum-Judicial Clerk at the Delhi High Court. All views expressed are personal.)