A Brief Commentary on The Forest (Conservation) Amendment Bill 2023
The amendment bill proposes to include only those lands within the ambit of the FCA which are recorded as the forest on or after 25th October 1980, thus restricting the applicability of the T.N. Godavarman judgement.
Minister of Environment, Forest and Climate Change, Mr. Bhupender Yadav, introduced the Forest (Conservation) Amendment Bill 2023 in the Lok Sabha on 29th March 2023. According to the Statement of Objects and Reasons of the bill, the government is trying to prevent misinterpretation of the provisions of the Forest (Conservation) Act, 1980 (FCA), with respect to the recorded forest areas.
The government argues that this misinterpretation prevents authorities from undertaking any change in the land use and allowing any development or utility-related work on these recorded forest lands. Presently, permission from the union government is mandatory under Section 2 of the FCA (commonly known as ‘Forest Clearance’) for undertaking any non-forestry activity on lands notified as forest by the government and land which are recorded as ‘forest’ in any government record.
Limiting the Scope of the Forest (Conservation) Act 1980
In T.N. Godavarman Thirumulkpad vs. Union of India and Others [(1997) 2 SCC 267] Hon’ble Supreme Court interpreted the provisions of the FCA to apply beyond ‘notified forests’ to all areas ‘recorded’ as forest in any government record, thus widening the scope of the forest clearance mandate under Section 2 of the FCA.
The amendment bill specifically targets such ‘recorded’ forests and proposes to include only those lands within the ambit of the FCA which are recorded as the forest on or after 25th October 1980 – thus restricting the scope of the Godavarman judgement.
This is a significant exemption of forest land area in the country, especially because large tracts of forest land in India were recorded as ‘forest’ during transfer of lands to the forest department while abolishing the Zamindari system in respective states after independence. A large section of such transferred land could not be notified as forest under the Indian Forest Act, 1927, or state forest legislations because of improper demarcation, ownership disputes and administrative lethargy. However, such lands continue to be protected as forests under the FCA, irrespective of their ownerships. Such forests can be easily found in ecologically rich landscapes like the Aravallis, central Indian plateaus, western ghats, etc and are important as wildlife habitats providing critical ecological services.
Exemptions from the Forest Clearance Endangers Ecologically Sensitive Bio-geographic Regions and Biodiversity Hotspots
The Bill introduces a new section 1A, which prescribes lands that will not be covered under the FCA after the amendment. This includes forests along rail and road infrastructure of up to 0.10 hectares, forests within 100 kilometres of the international border proposed to be used for the construction of strategic linear projects of national importance and concerning national security – forest lands up to 10 hectares to be used for security-related infrastructure and forest land for establishments of defence and paramilitary forces, and public utility projects on forest land. These forest lands, by default, are now excluded from any regulation under the FCA.
This is deeply problematic as significant forests in Himalayan, Trans-Himalayan and North Eastern regions, which are rich with endemic biodiversity will be exempted because of their proximity to international borders. Clearing of such forests without any assessment and mitigation plan will not only threaten the biodiversity but will also increase the vulnerability of the ecologically and geologically sensitive areas, which are already threatened by unsustainable infrastructure developments and extreme weather events.
The usage of forest land for ‘security-related infrastructure’ and ‘public utility’ is also very wide and can be used to establish a variety of infrastructure projects on forest lands without applying for forest clearance. For example, public utility services are commonly understood as services provided by the government essential to citizens’ requirements. This includes transport, postal, telephone, power, water, etc. This virtually allows the construction of any project on forest land.
The amendment also redefines the ambit of “non-forest purpose” exemptions under section 2 of the FCA. As per Rule 6(3) of the Forest Conservation Rules, 2003 the state government receives the proposal for use of forest land for ‘non-forest purpose’ and forwards it to the central government for final approval. The ‘non-forest purpose’ exemption allows the enumerated activities to be carried out on the forest land without prior approval of the central government. The list of exemptions now additionally includes ‘silviculture’, the establishment of a zoo/safari, ‘ecotourism facilities’ included in the Forest Working Plan/Wildlife Management Plan/Tiger Conservation Plan; or ‘any other like purposes’ ordered/ specified by the Centre
Using terms like ‘proposed’, ‘ecotourism facilities’, and ‘any other purposes’ are too vague and can be exploited or misused for activities damaging forests and ecosystems in forest lands. Experts also argue that silviculture or plantations are a significant threat to Indian forests as they replace the natural ecosystems, affect soil quality, and particularly threaten the native biodiversity.
This is bound to promote commercialisation of forests (including notified forests) and cause irreversible disturbance to wildlife. It is a common misconception that wildlife only occurs inside Protected Areas (PA). On the contrary, areas outside PA are considered to support essential habitats and biodiversity. For instance, a significant population of the protected wildlife such as the Royal Bengal Tiger, Striped Hyena, Dhole, Sloth Bear, Grey Wolf, and Golden Jackal are known to be found in areas outside the PAs in forests, shrublands, and grasslands and use the same for their breeding and foraging activities.
Joint Parliamentary Committee to Review the Bill
The Bill has been referred to a 31 member Joint Parliamentary Committee (JPC) which is expected to submit its report during the Monsoon session of the Parliament (July 2023). There have been some concerns about why the bill was sent to a JPC rather than the Standing Committee.
We hope the JPC undertakes wide public consultation and recommends against any such changes which are regressive or potentially threaten the forests and wildlife of the country.
At Vidhi, we constituted an independent High-Level Working Group (HLWG) composed of eighteen members, including retired bureaucrats (senior IFS and IAS officers), senior conservationists, lawyers, and representatives from CSOs working on the rights of forest-dependent communities. We are pleased to inform you that the HLWG submitted its detailed report to the Joint Committee on the Forest (Conservation) Amendment Bill 2023 on 18th May 2023. The report can be accessed here.