At stake

Community forests vs commercial interests

At the April-end workshop, the consultants put forward a draft definition henceforth, forests in India would be defined as "an area under Government control notified or recorded as 'forest' under any Act, for the conservation and management of ecological and biological resources". An explanation is attached such forests will include areas with trees, scrubland, grasslands, wetlands, waterbodies, deserts, glaciers, geomorphic features or any other area that is necessary to maintain ecological security.

Whose forest is a forest?
Firstly, it is clear the consultants have decided to revert to the past. They define a forest as the area under government control and one notified or recorded as forest under any act.

This would work to overturn the sc's definition of forests as "the word forests must be understood according to its dictionary meaning.This description covers all statutorily recognized forests, whether designated as reserve, protected or otherwise...The term will not only include forest as understood in the dictionary sense, but also any area recorded as forest in government record irrespective of the ownership." This dictionary meaning would apply to all projects--dams, mining, industry and others--which need clearance under the fca. Under the suggested definition, forests would only be forests if they were under government control. They also qualify that this recording as forest must be for ecological purposes. This could mean that 'forest', even if notified and under government control, would be a 'forest' only if reserved for serving conservation objectives. In this definition, there is no space for the livelihood and ecological needs of local communities, who live on these lands, but whose rights are often not recorded or asserted.

The mess of rights
Definition or not, the status of land rights in forests is an unholy mess. There are large areas recorded as 'unclassed' forest in government records; here the ownership, land-use and settlement of rights is unclear. Most affected are tribal communities, whose lands were appropriated by the colonial rulers, but their rights not determined. They continue to live as trespassers on their own land.

Forest areas recorded in government records as belonging to the forest department are classified as 'Reserved' or 'Protected' categories. But such classification glosses over the reality that, over time, state forest departments have claimed land without following protocol as laid down by the law, or have not settled the claims of people living in such lands. For example, revenue land settlements carried out during 1960-1970 in Orissa, for example, declared the hilly tracts--predominantly inhabited by the state's seven million tribals--as state property without proper survey. In Andhra Pradesh (ap), almost all the tribal area under Schedule v of the constitution has been notified as forest. This represents 65 per cent of the state's forest area. Fallow shifting cultivation lands were declared reserve forests and the rights of tribal cultivators over the limited cultivable land left with them were not recognised. Official records note that 31,428 ha in ap's 'reserve forests' were under cultivation by tribals prior to enactment of the Forest (Conservation) Act, 1980, or fca (See 'Bad in Law' Down To Earth, July 15, 2003).

Often, there is confusion related to jurisdiction over land, the preserve either of the forest department or the revenue land.As Sanjay Patnaik of Bhubaneshwar-based Regional Centre for Development Cooperation, an ngo, explains in the case of Orissa, "The revenue department controls more than 50 per cent of the state's recorded forest cover. Much of this is recorded as 'demarcated protected forest'." Or consider the problem of 'orange areas' in Madhya Pradesh--land the forest department has transferred to the revenue department. According to Anil Garg of Ekta Parishad, a people's organisation, "About 1,900,000 ha was given to the revenue department without denotification and another 1,900,000 ha was denotified and given to them. In either case, the forest department did not update the records." Garg adds an interesting rider under the draft definition, these areas would classify as 'forest', because they are recorded so, even though little forest exists on them. Garg says that by bringing in the definition, the government merely wants to suppress its mistakes, instead of rectifying them.

The suggested definition adds to the confusion will these 'unclassed' forests be covered under the definition as they are under government control? Or would these be left out because these lands are not protected for conservation purposes? Then there is the matter of private lands which is forests under dictionary meaning. These lands are not under government control. The suggested definition has no space for them.

Future in jeopardy
Says Sanjay Upadhyay, a Supreme Court advocate, and managing partner, Enviro Legal Defence Firm (which had also submitted a technical bid for the project) "At first glance, the operative words seem to be "area under government control" and the qualifier is "for the conservation and management of ecological and biological resources". This implies that laws such as the Indian Forest Act, 1927 and the fca would only apply to areas that have been notified so." This may jeopardise the future of many tracts of land in Northeast India and the Schedule v areas with if this indeed becomes the operative definition.

According to the State of Forest Report 2003 of the Forest Survey of India, a government agency, some 16,479 sq km of forests in Arunachal Pradesh, 7,343 sq km in Meghalaya and 4,980 sq km and 1,713 sq km in Nagaland and Mizoram respectively are outside the control of the forest department. According to a study by Community Forestry International, a forestry research organisation, a large percentage of what it calls the 'total forest area' in these states are community-controlled (see table On the chopping block?). In other words, the suggested definition would restore these lands back to the communities.

But in other regions, the matters are quite different. Here the implications of the definition would be also quite different. Take, for instance, central India's forest states, Chhattisgarh, Jharkhand or Orissa. As Patnaik explains "About 20 per cent of Orissa's forest is outside of the forest department's control. Worse, much of this area is in the remote parts of the state. With the draft definition, it would be simple to buy land and become a landlord." This is the nub if the draft definition comes into force, such areas could easily be diverted for non-forest uses. Explains Upadhyay "The fca is a check on conversion of land that is used as a forest to non-forest use. Not just ecology, the purpose of the entire act may get defeated for these areas if the draft definition is accepted."

657,207 ha pending
Coincidentally, there is a huge backlog of forest clearance cases (by law, states require clearance from the centre, that is the ministry, to divert forestland for projects).


According to the ministry's website, 278 cases are pending for forest clearances with the centre and another 1,108 with the state governments. Hydroelectric projects need some 190 ha of forest area, a majority in Sikkim. Major irrigation projects of the government, mainly in Andhra Pradesh, Madhya Pradesh, Maharashtra and Chhattisgarh require 5,541 ha of forest land to be diverted.

618,718 ha of forest clearance is needed for 38 mining projects, mostly in Chhattisgarh, Madhya Pradesh and Orissa. Rehabilitation projects need 1,562 ha of land, the major demand being that of Rajasthan. Defence projects want 28,931 ha of forest clearances. Power transmission projects need about 1,283 ha, mostly in Chhattisgarh and road line projects require 983 ha in ap, Madhya Pradesh and Gujarat.

Could the draft definition put clearances on the fast track? Many of the cases for clearances have been pending because of a row between the sc and the moef over the constitution of the Forest Advisory Committee (fac). It was decided that moef must appoint "three non-official" members of the fac in consultation with the sc, the Central Empowered Committee and the amicus curiae. But in 2005, when the fac was formed neither was consulted. The sc did not take to this kindly. Also, the fac was formed in accordance with Forest Conservation (Amendment) Rules, 2004, which had been stayed by the sc. From September 15, 2006 till April 27 this year there was no fac and so no forest clearances. On April 27, the sc allowed the moef-appointed fac to clear cases, but with a rider. The cases cleared by the fac will have to be approved by the apex court and its Central Empowered Committee (See 'Forest Row', Down To Earth, May 31, 2007). This row isn't over yet.