The Amendment represents a regressive step, reverting to a colonial-era mindset that emphasises control over nature and legal recognition
Under the Amendment Act, forest land classified as “deemed forests” can be diverted without the consent of the Gram Sabhas, despite their rights being recognised under the FRA. File photo: CSE The Forest (Conservation) Amendment Act, 2023, proposing amendments to the Forest (Conservation) Act, 1980 (FCA) came into force on December 1, 2023. It introduced significant changes to the FCA, with the key focus being elucidation of its applicability to different types of land and exemptions thereof to specific land categories.
Further, the amendment established guidelines for compensatory tree plantation to offset tree felling arising from relaxations provided in the Act. It also broadens the ambit of forests / wildlife conservation activities by including initiatives such as establishment of zoos and safaris, eco-tourism facilities, etc.
The amendment specifically narrowed the Act’s coverage to two types of lands:
Here, government records were sought to be explained through Rule 16(1) of the Forest (Conservation) Rules notified in November 2023, which mandated state governments and Union territory administrations to prepare a consolidated record of such lands within one year, including areas identified as ‘forest-like areas’, ‘unclassed forest lands’ and ‘community forest lands’.
A Supreme Court bench led by Chief Justice Y Chandrachud, while hearing five petitions challenging the constitutional validity of the Amendment Act, issued an interim order on February 19, 2024. The petitions were filed by a group of retired civil servants, Satish Gokuldas Pendam and non-governmental organisations like Vanashakti, Goa Foundation and Conservation Action Trust.
The SC interim order directed state governments and UT administrations to ensure compliance with the definition of ‘forest’ as outlined in the TN Godavarman case decision while preparing consolidated record of forest lands. Additionally, the Supreme Court disallowed states and UTs from approving any proposals for the establishment of zoos and safaris without its prior permission.
In a recent development, on March 15, 2024, the SC issued notices to the Union ministry of tribal affairs, National Commission for Scheduled Tribes and Union ministry of environment, forest and climate change, based on another writ petition filed under Article 32 of the Constitution by the Aravalli Bachao Citizen Movement along with Rainbow Warriors of Goa, Lawyer Ebo Mili of Arunachal Pradesh and Santanu Das from West Bengal. Ritwick Dutta, a prominent environmental lawyer, drafted the petition on their behalf.
A perusal of this petition revealed multiple grounds challenging the constitutional validity of the Amendment Act. The main contention of the petition is that the Act was founded on the mistaken legal premise that the FCA applied solely to ‘notified forests’ and not to any other forest category, including those listed in government records. Furthermore, the Amendment Act erroneously suggested the expansion of the FCA’s scope from ‘notified forest’ to ‘forest in government record’ was due to a SC order dated December 12, 1996, in the TN Godavarman case.
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It is argued that the contention stemmed from an incorrect interpretation of both the FCA and the 1996 court order. A careful reading of the court order reveals that it merely reaffirmed the ‘settled position in law’ and emphasised that the FCA applies to all forests, regardless of whether they are reserved or not. The Amendment Act is also premised on the false notion that the IFA and similar state legislation allow for the notification of forests. However, there is no prescribed procedure for the notification of a forest under any of these acts.
The petition further contended that the challenged Act bases its classification of areas as forests under the FCA solely on the ‘legal status of the land’, limiting its application to two land categories. This overlooks the possibility that areas designated as forests may not necessarily contain forests in the ecological sense, while areas not officially recognised as forests could indeed harbour ecological forests.
Additionally, the Amendment Act restricted protection measures to notified forests and those documented in government records, thereby curtailing the state’s role as a forest protector. It also fails to acknowledge that reserved forests and protected forests were established primarily for colonial trade, defence and communication needs rather than for conserving biodiversity.
The petition argued the Amendment Act violates Article 21 of the Constitution by undermining the rights to life, livelihood and dignity of forest-dwelling communities as provisioned in the Forest Rights Act of 2006 (FRA), which recognises their rights over the forest land they have occupied from time immemorial. The definition of forest land in the FRA includes not only reserved forests, protected forests and notified forests but also ‘deemed forests’.
The community, including Gram Sabha, is legally obligated to protect and conserve all forests, wildlife and biodiversity on forest land vested in them under the FRA. However, the Amendment Act does not recognise “deemed forests” as land subject to the provisions of the FCA. Consequently, forest land classified as “deemed forests” can be diverted without the consent of the Gram Sabhas, despite their rights being recognised under the FRA.
Furthermore, even concerning recorded forests, the consent of the Gram Sabha is not required for projects excluded under Section 1A(2) of the Amendment Act.
Under Article 141, all states were mandated to ‘identify’ all areas meeting the definition of ‘forest’ as per the Supreme Court’s order in the TN Godavarman case. While some states have made progress in this identification process, many have not. The petition contended that despite the central government’s awareness of the incomplete identification process, it has excluded significant areas of ‘to be identified’ deemed forests from the Act’s purview.
The Amendment Act introduces two new categories: Lands to which the law will not apply and Projects and activities to which the law will not apply. However, this categorisation lacks an intelligible differentia and does not have a just and reasonable relation to the legislation’s objectives rendering it disproportionate and excessive.
It further fails to consider India’s obligations under international environmental conventions, particularly the Convention on Biological Diversity, the Rio Declaration, the Convention on Migratory Species and the Ramsar Convention on Wetlands. The exemptions granted by the Amendment Act encompass areas protected and recognised under these conventions.
Under the guise of ‘fast-tracking’ projects, the impugned Amendment overrides statutory and constitutional obligations. The purported imperative to expedite strategic and nationally significant projects, including defence-related ones, can be addressed by improving administrative efficiency rather than by circumventing legal requirements for due diligence.
Moreover, there has been minimal denial of clearance for strategic and security-related projects under the FCA in recent years. An independent study by Vijay Ramesh, an ecologist at Cornell University, revealed a drastic decline in rejection rates. Between 2000-06, the rejection rate stood at 15.2 per cent, whereas from 2014 to 2020, the same dwindled to 0.7 per cent. This indicates a significant shift towards approval rather than rejection of proposals under the FCA.
The Amendment Act represents a regressive step, reverting to a colonial-era mindset that emphasises control over nature and legal recognition without acknowledging its intrinsic worth and value, independent of its benefit to humans. It fails to align with advancements in environmental law, which, globally, is tending towards recognition of the ‘Rights of Nature’.
This legal concept acknowledges that nature, including ecosystems and species, possesses inherent rights and should be afforded the same protection as individuals and corporations, asserting that ecosystems and species have the legal right to exist, thrive and regenerate. In 2008, Ecuador became the first country in the world to formally recognise and implement the Rights of Nature, referred to locally as the Rights of Pachamama (Mother Earth).
Read more: Proposed changes to Forest Conservation Act a larceny of village resources
The Amendment Act violates Article 19 (1) A of the Constitution, which guarantees freedom of speech and expression, by eliminating effective public participation previously ensured by the legal framework governing the process of obtaining forest clearances. Additionally, the Constitution guarantees the ‘right to know’, essential for securing ‘true facts’ about the administration of the country.
Once the diversion of forest lands is exempted from seeking approval under the FCA, the public will neither be informed of the proposed diversion nor be able to participate in the decision-making process, thereby severely curtailing the right to public participation and access to information. Moreover, the statutory right of appeal against the grant of forest clearance before the National Green Tribunal will also be unavailable.
The impugned Act is also argued to be manifestly arbitrary for lacking “logical consistency” since it intends to increase forest cover by limiting the scope of the FCA. Finally, the Amendment Act fails the proportionality test applied to it. The proportionality principle states that when a law restricts a constitutional right, such limitation is deemed constitutional if it is proportional; that is, the law must serve a legitimate purpose and the measures taken to achieve that purpose must be rationally connected to it and deemed necessary.
Despite the above cited grounds, the future of forests in India hinges on the outcome of this petition and others during the final hearing scheduled for July. Until then, the fate of India’s forests, as interpreted within the modern legal framework of ‘Rights of Nature’, remains uncertain.
Ritu Rao is PhD scholar at Teri School of Advanced Studies and works on urban water bodies
Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth
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