Representative image of a forest. Photo: Rhema Kallianpur/Unsplash
On March 29, the Forest (Conservation) Amendment Bill, 2023 was introduced in the Lok Sabha. Broadly, it exempts certain types of land from the purview of conservation action under the Forest Conservation Act, 1980 (FCA) and extends the list of activities permitted on forest lands to zoos and safaris, eco-tourism facilities and silviculture. On the same day, the Bill was referred to a Joint Parliamentary Committee comprising members from both the Lok Sabha and the Rajya Sabha. Rajendra Agrawal, the BJP MP from Meerut is the chairperson of the committee, alongside 31 other members from BJP, Congress, Trinamool Congress, Biju Janata Dal, Dravida Munnetra Kazhagam, etc.
On May 3, the joint committee invited suggestions from the larger public regarding the proposed amendments. In response, numerous conservationists, environmental activists and lawyers, officers of the Indian Forest Service (IFS), tribal groups and citizens from various parts of the country expressed their views.
“The Committee has received about 1200 memos, objections and addendum on the Bill,” Pradyut Bordoloi, a Congress MP from Assam told The Wire Science. Some of the petitioners have been asked to come and depose before the committee and more are likely to be called for hearing on a random basis in the coming days.
‘Fundamentally changes the entire purpose of the Act’
A major amendment pertains to a specific prescription as to what land is covered under the purview of FCA for conservation purposes and what isn’t. As of now, the Act applies to forest land regardless of ownership and classification as forest land in governmental records.
The amendment Bill states that such applicability of the Act was a result of the Supreme Court’s order in the 1996 T.N. Godavarman case, wherein the petitioner approached the court seeking action against timber felling in the Nilgiri hills in Tamil Nadu. The judgment said that ‘forest’ includes all land recorded as a forest in governmental records regardless of its ownership and also ‘deemed forests’, which are not recorded as forests but satisfy the dictionary meaning of ‘forests’ i.e. any large area with significant tree cover and undergrowth.
Subsequently, the Bill states, the provisions of the Act “were applied in the recorded forest areas including such recorded forests which had already been put to various type of non-forestry use, thereby restraining the authorities from undertaking any change in the land use and allowing any development or utility related work. Besides this, apprehensions prevailed regarding applicability of the Act in the plantations raised in private and Government non-forest lands.”
This is the justification the Bill provides in the section ‘Statement of Objects and Reasons’ which spells out the intention behind the amendment.
But this is an “incorrect interpretation” of the Godavarman case, says a submission on the amendment Bill by Legal Initiative for Forest and Environment (LIFE), a non-governmental organisation working on environmental law and policy. The Act itself makes it clear that the sections contained therein apply to “any forest land”. And so, one could interpret that the Godavarman judgment did not widen the scope of the Act but only reiterated it.
The Bill now seeks to restrict the applicability of the Act only to land that has been notified as a forest under the Indian Forest Act, 1927 or has been recorded in government records as a forest on or after October 25, 1980. Consequently, forests as per the dictionary meaning of the term (i.e. deemed forests) will be excluded from the purview of the Act.
It also exempts certain forest lands from the purview of the Act “to fast track strategic and security related projects of national importance; to provide access to small establishments, habitations on the side of public roads and railways; and to encourage plantation on non-forest land.”
“Big states like Odisha and Karnataka have large areas notified as forests under the Indian Forest Act. But states like Haryana do not,” said Chetan Agarwal, a forest analyst based in Gurgaon. In his comments submitted to the joint committee, he notes that 40% of the Aravalli range in Gurgaon and Haryana would lose the “protective cover” of the Act and “will open up the area to real estate operators.”
Agarwal also addressed another core objective of the Bill: the need to allay fears about the Act applying to private plantations. The applicability of the Act on private and other non-government lands like community lands has already been clarified via various court judgments that cite “ban will not affect felling in any private plantation comprising of trees planted in any area which is not a ‘forest’; and which has not been converted from an earlier ‘forest'” (in the case of hills in Himachal Pradesh and Uttar Pradesh) and “ban on felling trees will not affect trees which have been planted and grown, and are not of spontaneous growth” (in Tamil Nadu).
‘Cannot be termed as an amendment’
By aiming to undertake such core modifications to the law, the amendment Bill “fundamentally changes the entire object and purpose of the Act” and therefore cannot be termed as an amendment and amounts to the enactment of new legislation, LIFE wrote in their critique. The group elaborated that while the purpose of the original legislation was to prevent deforestation by restricting diversions of forest land, the amendment aims to facilitate diversion – which again amounts to the enactment of a new legislation altogether.
In a similar vein, a detailed critique by Prerna Singh Bindra, a wildlife conservationist, and Prakriti Srivastava, an IFS officer, too pointed out that the proposed changes “emasculate the original Forest Conservation Act so much so that it subverts the Act’s primary objective to provide for the conservation of forests and to check further deforestation.” Section 2 of the Act deals with restrictions on the diversion and use of forest land for non-forest purposes like building highways and roadways and for mining, etc.
A citizen group from Pune expressed concern with the proposed amendments for what it interpreted as “business-friendly” environmental governance and instead called for safeguarding the country’s forest area.
Many submissions also noted dilutions in the proposed amendment with respect to the rights of marginalised communities.
The Van Gujjar Tribal Yuva Sanghthan, an NGO that works on the land rights of forest dwellers, also sent in their submission. “The recent amendment, rather than enabling the public participation of forest dwellers through rigorous consent mechanisms, seeks to centralise authority forest lands and dilute the safeguards provided under the Forest Rights Act,” their analysis reads.
The amendment related to restricting the scope of the Act interferes with the land rights of such communities, according to a report by a High-Level Working Group constituted by the Vidhi Centre for Legal Policy, a think-tank which works on issues related to law and policy. The Working Group comprised 18 members that included wildlife conservationists, researchers, lawyers and also IFS officers.
“Many of the proposed amendments in the Bill adversely affect the protection accorded to Scheduled Tribes and other Traditional Forest Dwellers under the Forest Rights Act because if the land falls outside the scope of the FCA, it effectively eliminates the requirement of obtaining consent from the Gram Sabha for diversion of that land,” the report notes.
There is reason to fear that community rights may be further diluted. In June last year, the government notified new Rules under the FCA which rid the Union government of its responsibility to obtain consent from tribal and other forest-dwelling communities before their lands are cleared and diverted.
How will the committee engage with critique?
It remains to be seen to what extent the joint parliamentary committee engages with critiques the amendment Bill has received from a wide range of stakeholders. At present, Bordoloi said the committee is on a study tour, seeking views from stakeholders like forest departments and public sector undertakings like Oil and Natural Gas Corporation Limited in the Northeastern states and others like Odisha and Kashmir. He did not respond to a question about whether the list of stakeholders includes local communities.
The fact that the Bill was referred to the joint committee too has been challenged. “By referring the Bill to a joint committee, the government is deliberately by-passing the Standing Committee, which would have subjected the legislation to detailed examination with the full participation of all stakeholders,” wrote Jairam Ramesh, Congress MP from Karnataka and chairperson of the Parliamentary Committee on Science and Technology, Environment, Forests and Climate Change. He raised objections stating that the standing committee, which is primarily meant to examine Bills, had been devalued and denigrated. The committee can only scrutinise Bills that are referred to it by the government.
Rishika Pardikar is a freelance journalist in Bengaluru.