Constitutional violations in amended Forest (Conservation and Augmentation) Act, say experts

‘Centre absolving itself from its constitutional responsibility of protecting the environment by enacting the law’

By Himanshu Nitnaware
Published: Thursday 10 August 2023
The 42nd Amendment Act of 1976 makes FCA part of the Concurrent List, making state and central governments equally responsible to protect the forest, said an enironmentalist. File photo: CSE__

Amendments to the Forest (Conservation) Act, 1980, which recently became the law, violate several Constitutional provisions, according to experts. The Rajya Sabha enacted the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 — translating to Forest (Conservation and Augmentation) Act — on August 4, 2023 as a law. 

The Forest (Conservation) Amendment Bill, 2023 was tabled in the current monsoon session of Parliament. The Joint Parliamentary Committee (JPC) on the Bill passed all the proposed amendments and the both lower House and the upper House of the Parliament also gave their nods to it recently.

The amendments violate Article 21 of the Constitution, which ensures the right to life, said environmental lawyer Ritwick Dutta and founder of Legal Initiative for Forest and Environment.

“As environment protection is a concurrent subject, the central government is absolving itself from its Constitutional responsibility of protecting the environment by implementing this law.”

Read more: Reclassifying forests, exemptions from clearances: What changes does Bill to amend Forest Conservation Act propose

The new changes would exempt clearances for strategic linear projects of national security and limit the definition of forests only to the government records. “It does away with recognising forests as per dictionary meaning in accordance with the TN Godavarman judgment issued in 1996,” Dutta said. 

The 42nd Amendment Act of 1976 makes FCA part of the Concurrent List, making state and central governments equally responsible to protect forests, he added. 

The law now also violates the principle of non-regression as environmental law can only be strengthened and not weakened, he said. Previous amendments have only worked to make them stronger.

“The government’s replies to dissent notes and opposition from the environmentalists in the Joint Parliamentary Committee report has been a copy-paste solution, without giving a serious thought to the concerns of the citizens,” said Debadityo Sinha, senior resident fellow and lead, the Climate & Ecosystems team at Vidhi Centre for Legal Policy.

There was no honest debate during the sessions in both the Houses of the Parliament, pointed out Chetan Agarwal, a Gurugram-based independent forest and environment analyst.

The amendments are contrary to National Forest Policy, 1988 and inconsistent with the original mandate of the FCA which is to conserve and protect the forests, said Neema Pathak Broome, coordinator at Conservation and Livelihoods Programme at Kalpavriksha, a Pune-based nonprofit. 

“Mass exemptions of forest lands are regressive and ultra vires the FCA,” she said.

Read more: Does Bill amending Forest Conservation Act boost India’s green legacy or put it at risk?

Member of Parliament and former forest minister Jairam Ramesh in a press statement said the Bill should have been referred to the Standing Committee on Science and Technology, Environment, Forests and Climate Change that he chairs. “Instead, a JPC was set up with a ruling party MP as its chair,” the press note said.

There were no changes to the Bill despite six MPs submitting dissent notes, Ramesh pointed out. “Both the houses bulldozed the Bill without meaningful debate,” he said. The change of name to Hindi was also unfair to non-Hindi speaking states. 

“The law reading as Forest (Conservation and Augmentation) Act is based on the assumption that plantations can compensate for loss of natural forest which is a faulty notion,” Ramesh said.

The Hindi name is not permissible as the Constitution mandates use of Devanagari script and not Hindi Roman script, as has been used, Dutta further said. 

Read more:

Subscribe to Daily Newsletter :

Comments are moderated and will be published only after the site moderator’s approval. Please use a genuine email ID and provide your name. Selected comments may also be used in the ‘Letters’ section of the Down To Earth print edition.