Comments on the Proposed Amendments to Forest Conservation Act, 1980

Submission to the Ministry of Environment, Forest & Climate Change

The Ministry of Environment, Forest & Climate Change (MoEFCC) has released a public consultation paper on 2nd October 2021 inviting comments on the proposed amendments to the Forest Conservation Act, 1980 (FCA).  Vidhi has reviewed the consultation paper and submitted its comments to the MoEFCC on 27th October 2021. 

Appreciable steps under the intended amendments include protections for pristine forests, introduction of penal provisions for violation of FCA, and the exclusion of afforestation on non-forest lands after 12.12.1996 from the purview of the Act.

However, the consultation paper and proposed amendments fall short on a number of counts. Most importantly, the consultation paper is premised on an incorrect interpretation of T.N. Godavarman Thirumulpad v. Union of India. It has been settled by the Supreme Court, High Court and the National Green Tribunal that any plantation or forest-like land not notified or recorded as forests in government records will not attract provisions of Section 2 of the FCA, and yet, the consultation paper asserts that the scope of the applicability of FCA extends to all areas which conform to the ‘dictionary’ meaning of ‘forest’.

Some of the proposed exemptions digress from the National Forest Policy, 1988 and the constitutional mandate of the State to preserve and protect forest and wildlife. It is proposed by the MoEFCC to provide exemptions from prior government approval (under FCA) for lands acquired before 1980, when the FCA first came into existence. We believe that this will significantly dilute the Godavarman decision as it will exclude large amounts of land that may have otherwise been deemed or notified as forests. 

Some additional concerns are summarized below:

  1. Exemption of 0.05 hectares of forests for access to roads and railways is arbitrary, likely to be misused and may result in serious fragmentation of forest land.
  2. Complete exemption to technologies such as Extended Reach Drilling is dangerous in the absence of sufficient evidence regarding the impact it may have on biodiversity.
  3. Bringing all zoos, safaris and forest training infrastructures within the ambit of forestry activities, is inconsistent with the FCA and the FCA Guidelines, 2019 which clearly differentiate low footprint conservation establishments from exhibition-oriented outreach centers. Further, this may disproportionately commercialize forests and disturb forest ecosystems.
  4. Exemptions for all surveys and investigations are arbitrary, and such exemptions should depend on the underlying project and its implications on the forest and associated wildlife.
  5. Blanket exemptions for border infrastructure projects are problematic as they have significant impact on sensitive landscape and biodiversity, and may adversely impact the infrastructures themselves, due to resultant environmental hazards in case of extreme weather events. Clearances are currently being given at reasonable speeds, and any changes will unduly compromise the necessary forest clearance processes.
  6. Exemption from obtaining prior approval under Section 2 of FCA for various projects interferes with rights/procedures under the Forest Rights Act, 2006. 

This submission also outlines recommendations with respect to FCA, going forward. The importance of inculcating biodiversity offsetting as opposed to mere compensatory afforestation, the need for an ecosystem-based interpretation and a wildlife habitat-based approach for the term ‘forest’ have been suggested.