Proposed amendments to the Forest Conservation Act, 1980, are a blunder arising out of ignorance towards constitutionally and legally-bound procedures and limitations
The Union Ministry of Environment, Forest and Climate Change (MoEF&CC) released a consultation paper October 2, 2021 on the proposed amendments in Forest Conservation Act, 1980 with reference to the amendments made in 1988 in this Act.
It is a very conscious larceny (theft of personal property) of village resources. The MoEF&CC has also invited comments and feedback on this paper within a month of its release.
The Narendra Modi-led Union government is making every effort towards providing ‘ease of doing business’ to its cronies. This latest move needs to be seen in the same context.
It is effectively reiterating through these proposed amendments that this step is aimed at providing exemptions to businesses in the garb of ‘development’.
The paper proposes 14 amendments — each a doublespeak.
On the one hand, the document suggests shrinking the scope of the Act in the context of business and development. Simultaneously, it talks of expanding the scope of the Act when it comes to community ownership over forest resources.
It offers full relaxation to businesses like safaris, zoos, linear projects, mining and other non-forest use on forest land. At the same time, it restricts and tightens the scope for community access and centuries-old traditional ownership by local communities.
It is interesting to note that on July 26, 2021 the MoEF&CC, in a written reply, had said there was no ‘specific definition’ of ‘forest’. But just 68 days later, it planned to amend the Forest Conservation Act, 1980.
It planned the amendment on the basis of the very definition provided by the Supreme Court in the famous Godaverman vs Union of India case, also known as ‘Forest Case 202/1995’, dated December 12, 1996.
This date is a judicial turning point in the discourse on forest and forest land in India. The apex court had then ordered that the definition of ‘forest’ was to simply refer to its conventional meaning in the future.
The court noted that the place where trees were present, would be considered as a ‘forest’ and the said land would be considered as ‘forest land’.
This would be apart from other definitions such as those recorded and notified by the Indian Forest Act, 1927 and in any government record. Land being controlled and managed by the forest department in any state and Union Territory (UT), would also be included.
The scope of the Forest Conservation Act, 1980 would expand automatically, once the dictionary meaning was adopted by the forest department. The states and UTs had welcomed this order and had adopted and implemented it without any delay.
Devil in the details
The Forest Conservation Act was initially an Ordinance (through the 42nd amendment of the Constitution), later enacted into a law by Parliament. It has just six sections.
It addresses concerns regarding increasing deforestation and makes provisions for strict guidelines to prevent any harm to the forest cover due to human activity.
The Ordinance also made the prior approval of the Government of India necessary for de-reservation of reserved forests and for the use of forest land for non-forest purposes.
The Ordinance also provided for the constitution of an advisory committee to advise the Centre about the grant of such approval.
Anil Garg, an advocate and legal researcher based in Betul, Madhya Pradesh, has criticised and raised doubts over the objectives of the latest consulatation paper.
He explained that on one hand, it attempted to stop deforestation and on the other, it allowed the non-forest use of forest land. Even legalising the de-reservation of reserved forest would require a compulsory approval, under the amendments as noted in the document.
In practice, anyone can take forest land for non-forest use with due approval from the Centre and due payment of compensatory levy. This is true even for reserve forests notified under the Indian Forest Act, 1927.
The new document also discourages local communities to take care of their forests as part of their traditional practice and makes them offenders if they carry out any activity in the forest.
If we look at the offences and related penal provisions, the consultation paper seems soft in comparison to the Indian Forest Act, 1927.
That Act provides for at least a year’s imprisonment for forest offences, but the new document shortens it to only 15 days. It is strange to see this leniency towards offences in a document that is specifically aimed at conservation.
It treats an industrialist and a local tribal equally.
If a village wants to develop some infrastructure on its forest land and an industrialist wants to establish an industrial plant or mine the land, both have to seek approval for non-forest use of forest land and follow the same procedure.
Anil Garg notes that the Union Government, through such a move, wants to play a greater role in the scheme of things.
It should also be noted here that under the 42nd Constitutional Amendment, forests were included in the Concurrent List, as a subject under Schedule VII of the Constitution. Forests were previously a state subject.
If an amendment to the Act is really needed, it would be better to first recognise the ‘symbiotic relationships’ and then rationalise the approach for development and afforestation.
This blanket order has created a lot of confusion and dispute in forest villages among forest dwellers and the forest department, by ignoring contextual factors. It has led to confrontations almost everywhere, especially between local communities and forest departments.
The consultation paper has brought community-owned forest resources within its purview. This has again led to conflict and made forest dwellers’ life difficult. The pre-existing rural infrastructure was compromised and no new infrastructure could replace it.
It has also stalled many pro-people development initiatives and deprived people of basic civil amenities in lakhs of villages situated inside or around the forests. A rapid increase in forest-related offences has been noticed in the last 40 years.
Perspectives on amendments
Kanchi Kohli, a well-known environmentalist, said:
A prominent compulsion of these amendments is reflects in their intention to increase the forest cover rapidly by following the Biodiversity Framework, 2020. This is an attempt to open forest land for funded plantations in the name of climate change and attracting funding for carbon storage.
She added: “This is an attempt to sanction pending and newline projects like railways and highways.”
CR Bijoy from the Campaign for Survival and Dignity, a national forum for forest and tribal dwellers, raised questions about the intentions of the MoEF&CC.
“The proposed amendments completely ignore the existence of the Forest Rights Act, 2006. This is deliberate and condemnable. This indicates an anti-people intent, particularly against forest dwellers.”
The MoEF&CC in 2009 had itself assessed that the Forest Rights Act, 2006, would require the handing over 40 million hectares to village-level institutions.
Therefore, the most important amendment should have been to incorporate the provisions of the Forest Rights Act, 1980 into the Forest Conservation Act, 1980, said Bijoy.
“The Gram Sabhas, under Section 3(1)(i), along with Section 5 of the Forest Rights Act, 2006 are the primary authority to decide whether any part of the forest should be diverted or used for any purposes, whether non-forestry or forestry. This should have been included,” Bijoy said.
Advocate Anil Garg raised a few questions: “If implemented, can these proposed amendments overtake / supersede the amendments done in the Constitution of India earlier as the 73rd-74th Amendments and the resulting provisions of Schedule XI?”
Can these proposed amendments supersede various existing legislations passed by various state assemblies? For example, several laws came into force in the 1950s. These included the very first amendments to the Constitution in 1951, the Madhya Pradesh Land Revenue Code of 1954, the re-introduced Madhya Pradesh Land Revenue Code of 1959, etc. These had strengthened the rights of local communities by taking away power from erstwhile rulers.
“Can these amendments take revenue land within their purview although it is categorically a State subject in Schedule VII of the Constitution?” Garg asked.
Can any land de-notified under earlier orders be re-notified under the FCA, 1980 through these proposed amendments? For example, on December 11, 2014, a written reply to Question no. 1080 in the Madhya Pradesh Assembly submitted that the landmass constituted as chhote jhaad and bade jhad ke jungle (jungles made up of small and large trees) were de-notified. These had been notified earlier under Section 34A of the Indian Forest Act, 1927.
He further asked: “Can the landmass earmarked for the community’s Easement Rights as mentioned in various records of the state governments and UTs be brought under the purview of FCA, 1980 through these amendments?”
Lastly, these proposed amendments seem to give prominence to the Supreme Court order dated December 12, 1996 regarding the definition of a forest.
Why, then, are they not acknowledging another order issued by the same Supreme Court on August 1, 2003 regarding the Chhote-Bade Jhad ke Jungle on the lines of the interlocutory application (IA) filed by Madhya Pradesh?
Such land was exempted from the purview of FCA, 1980 through the IA. Can it be included again under the FCA, 1980 through these amendments?
It is obvious that without proper and intensive consultation with stakeholders, placing such amendments to please businesses constitutes a blunder arising out of ignorance towards constitutionally and legally-bound procedures and limitations.
This proposal put forward by the MoEF&CC is certainly one of the best examples to understand that.
Satyam Shrivastava is Co-Director of Society for Rural Urban & Tribal Initiative (SRUTI)
Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth
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