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- Officials of the environment ministry’s forest conservation division worked through Gandhi Jayanti to prepare a “consultation paper on the proposed amendment to the FCA 1980”.
- The principal fundamental concern with the consultation paper is that it doesn’t recognise deforestation as a problem at all, but that the Act isn’t conducive to commercial activity.
- Overall, the consultation paper seems to argue that failure to implement the law and confused interpretations of Supreme Court verdicts can be grounds for the government to dilute a law.
October 2 in India is Gandhi Jayanti – one of three national holidays that are ‘compulsory’ for government servants to observe. The week of October 1-7 is also observed as ‘Wildlife Week’ – a time for the nation to commemorate its commitment to protecting wildlife.
This year, officials of the Union environment ministry’s forest conservation division didn’t get their ‘compulsory holiday’ on Gandhi Jayanti. They had something important to do, and it had nothing to do with ‘Wildlife Week’. They had to prepare and share a “consultation paper on the proposed amendment to the Forest (Conservation) Act 1980” with all additional chief secretaries, principal secretaries and principal chief conservators of forests.
This document, the ministry specified, should aim to “streamline” the Act’s provisions. The Forest (Conservation) Act (FCA) 1980 was an outcome of the Centre’s realisation in the 1980s that deforestation causes ecological imbalance and leads to environmental deterioration. With this in mind, the FCA’s stated purpose is to “provide for the conservation of forests and for matter connected therewith”.
The consultation paper – which this author has reviewed – is plainly disturbing. First, contrary to the general impression, the environment ministry isn’t seeking public comments on the proposed amendment to the FCA; the paper has only been sent to government officials.
Second, the consultation paper is not a ‘draft’ of the proposed legislation. It is instead a vessel of ideas about proposed changes based on concerns that different user agencies have raised. After receiving the comments, ministry officials will prepare a draft version of the amended FCA and circulate that for public comments.
The principal fundamental concern with the consultation paper is that it doesn’t recognise deforestation as a problem at all! Instead, it identifies three ‘major’ issues of concern:
- Stringent provisions of the FCA that have led to people not planting trees
- Directions of the Supreme Court in T.N. Godavarman Thirumulpad (1996), which have apparently led to “confusion”, and
- ‘Resentment’ among different users, like the authorities overseeing mining, railways and highways in the country.
Missing in the whole document are the concerns of forest-dwelling communities, civil society groups and those concerned about the safety of forests and wildlife. Deforestation, habitat fragmentation, human-animal conflict and tribal people receive similar treatment – i.e. no treatment. The consultation paper effectively views ‘forests’ only in terms of their ability to be deforested, and to use their land for non-forest purposes.
Supreme Court orders and the FCA
Its three focus areas lack all factual and legal basis. It is based on wrong interpretations of both the FCA and the Godavarman case.
In Godavarman, the Supreme Court said that the word ‘forest’ must apply to all areas that meet the dictionary meaning. However, the court did not define what the ‘dictionary meaning’ is. This task was left to state-level expert committees, to decide based on local conditions as to which areas satisfied the dictionary meaning. If any person or organisation is aggrieved by the expert committee’s decision, they are at liberty to challenge it before an appropriate forum.
Next, the FCA doesn’t prohibit the felling of trees. Its focus FCA is not trees or forests but rather forest land. So tree-felling in private land is governed by the Tree Preservation Acts of the respective state, and the FCA doesn’t apply. So, hypothetically speaking, even if a state cuts down each and every tree on both forested and non-forested land, it won’t necessarily violate the FCA.
This is why the consultation paper’s claim that people have a tendency to “keep private lands devoid of vegetation” for fear of the FCA is misleading, if not wrong.
Third, in its order, the Supreme Court never prohibited tree-felling or the use of domestic timber. All that it said was that felling on forest land should be in line with the approved working plan.
Besides, it’s hard to say where this apprehension about the apex court’s reading originates: there are extensive plantations of eucalyptus and poplar in Uttar Pradesh, Haryana and Punjab. The author isn’t aware of a single instance in which land has been treated as forest land for the purpose of the FCA.
An unspecified definition
In all, the consultation paper blames the dictionary meaning of ‘forest’ for the failure to achieve tree-plantation targets. But if you knew the definitions of ‘forest’ according to various state expert committees, you wouldn’t buy this argument.
On August 25, 2014, the director-general of forests and states’ principal chief conservators met and determined the parameters by which an area could be classified as a forest. The record of the discussion makes for interesting reading.
In Andhra Pradesh and Telangana, “all private lands bearing natural tree growth of more than [40%] density and having an extent of 10 hectares shall be treated as ‘forest’ subject to a condition that [the treatment] should not adversely affect the customary rights of tribal land owners”.
In Himachal Pradesh, a compact block of wooded land larger than five hectares would be treated as a forest. In Chhattisgarh and Madhya Pradesh, a patch of land (irrespective of ownership) would be a forest if (a) its area is not less than 10 hectares, (b) it is covered with naturally growing timber- and fuelwood-yielding trees, and (c) the average number of trees is 200 or more per hectare.
In Sikkim, a forest would be an area of at least 10 hectares and a crown density of 40%.
Based on these definitions, most plantations on private land won’t meet the definition of deemed forest even if they have trees on them. The average landholding in India is around 1.1 hectares. Small and marginal holdings (smaller than two hectares) make up 86.21% of the total. Larger holdings account for 9% of the total agricultural area. The average size of operational holdings is highest in Nagaland (5 hectares) and lowest in Kerala (0.18 hectare).
This is to say that it’s unlikely that “stringent” definitions of ‘forest’ will be met in most cases.
In fact, in Uttar Pradesh, the expert committee’s report explicitly states that plantations on private land will not be treated as ‘forests’.
At the other end of the abidance spectrum, the consultation paper conveniently fails to mention that most states have not constituted an expert committee to define ‘forest’, despite the Supreme Court’s directions. In fact, a committee headed by the director-general of forests noted that even as of 2014, most states – including Haryana, Uttarakhand, Tamil Nadu, Gujarat, Bihar, Jharkhand, Punjab, Manipur, Mizoram and Nagaland – were yet to finalise their specific definitions of ‘forest’.
To state in this context that the parameters of the expert committees are ambiguous and subjective would be both wrong and meaningless in law. The Union environment ministry also hasn’t acted proactively to ensure that the whole country has completed the process of identifying their forests.
Failure to implement the law and confused interpretations of Supreme Court verdicts can’t be grounds to dilute a law. If it is serious about conserving India’s forests, the ministry should ensure all state governments’ expert committees finalise their definitions asap. And until this is done, if there is any doubt whether an area is a forest according to the dictionary meaning, it should be presumed to be a forest according to the most reasonable definition.
Missing the forest
Finally, the consultation paper proposes to allow private entities to lease forest land without the Centre’s prior approval – which is something the FCA requires (Section 2(iii)). The Indian government has been eyeing this particular amendment for many years now.
The paper states that there is no need to seek approval as long as there is no ‘non-forest’ use. In simple terms, this means any corporate entity will be able to appropriate large swathes of forest land, evict forest dwellers, erect a fence, fragment the land and seek approval for just the portion that it intends to use for ‘non-forest’ purposes.
This way, we could lose hundreds of acres of forest land to companies that wish to set up, say, a safari or a zoo right in the middle of the Western Ghats or the Sundarbans.
The ministry also plans to treat safaris and zoos as activities ancillary to conservation and therefore not as non-forest use. Such an amendment will also allow private paper-and-pulp companies to take over forest-land and set up monoculture plantations en masse.
Another similarly bad idea in the consultation paper is a carte blanche for infrastructure development along international borders. It identifies the main problem in projects of this nature to be “delays” in obtaining approval under the FCA.
The reality is that the delay – if at all – is the product of both the forest department and the environment ministry being underfunded and understaffed. There are no records to suggest that the ministry has ever rejected any security-related projects.
But the paper proposes to address these delays not by increasing the efficiency of the administrative apparatus but by exempting all strategic and security projects from seeking approval under the FCA in the first place!
Given that most of India’s border areas are biodiverse, such an exemption will set the stage for the decimation of India’s natural riches in these parts. There is no harm for security infrastructure to come up while also factoring in ecological considerations.
Curiously, the paper doesn’t say what a ‘strategic project’ means either. If we go by various government departments’ replies to RTI applications, anything from a conference hall to a hydroelectric power project could be deemed ‘strategic’.
The list of concerns with the consultation paper is virtually endless. I have described a few important ones, but there may be a simpler way to sum them up, and which the consultation paper could also consider. Given the way the FCA has been applied and the changes that the paper is proposing, it should also pitch to amend the Act’s title – to Forest (Clearance and Ease of Doing Business) Act 2021. This would be more faithful to the ministry’s intentions.
Ritwick Dutta is an environmental lawyer.