Explainer: How the Govt is Trying To Weaken India’s Only Forest Act

With India's already shrinking forest cover, will these amendments make it easier for govt to take away forest land?

Activists are upset with the government’s rush to push through certain amendments to the Forest Act 1980 that will make it easier to divert forest land for non-forest use. They are also upset at the limited time of 15 days given to stakeholders to respond. The entire exercise, they allege, is designed to help the government push through its amendments with little debate.

“What is the need of these amendments right now? Why are they (the centre) in such a rush to amend FCA,” said Sangmitra Dubey, an independent researcher on forest rights and member of CFRLA (Community forest rights learning and advocacy), a group of environmental lawyers and activists.

So why are we talking about these amendments? Why should we care? With India's already shrinking forest cover, will these amendments really make it easier for the government to take away forest land? What about the tribals? Has their opinion been sought? Let's break it down:

What Is the Forest Act 1980?

The primary purpose of enacting the Forest (Conservation) Act, 1980, was to address issues regarding deforestation and forest governance. All forest related acts prior to this were centred around ‘extraction’ and not ‘preservation’ or ‘conservation’.

The FCA made centre’s approval mandatory for the use or diversion of ‘forest-land’ for any non-forestry purposes. This essentially was supposed to make it difficult for all entities-- state or private to access this land for construction, infrastructure projects, drilling, extraction etc.

In the past there have been multiple cases against government agencies for violations of FCA for infrastructural projects which have allegedly damaged the forest land and the land rights of the forest dwellers.

The now suggested amendments propose to create provisions of exceptions for a few categories of such use of forest land for non-forestry purposes from seeking the centre’s permission, as we explain in detail further.

What is the Forest Land that the Act aims to ‘Conserve’?

As the drive for forest conservation strengthened over the decades, the pressure to increase forest cover also grew.

This was largely driven by India’s Nationally Determined Contributions (NDCs) declared under the Paris Agreement in 2015, that aimed at expanding carbon sinks by increasing the forest cover.

This led to the expansion of the definition of what forest land means.

Forest land means all land demarcated as “forest” in government records including commercial plantations. This has long been a point of contention questioning whether all areas with canopy cover should be counted as forests or the term should be more holistic.

“Forests cannot be looked at in isolation of the tribal communities who have inhabited the forest areas from times immemorial.”

EAS Sarma, Former secretary to the government of India

The act in the regard has been interpreted differently at different occasions to understand and define forest land. And the amendments propose to change this.

“It is felt extremely necessary to define the scope of application of the act in an objective manner,” says the paper.

“Identification of such land is subjective and arbitrary to some extent. This leads to ambiguity and has been observed to have resulted into a lot of resentment and resistance particularly from private individuals and organisations. Considering any private area as forest, would restrict the right of an individual to use his/her own land for any non-forestry activity.”

The ministry has said in its consultation paper.

What Are the Amendments Of Concern?

The Ministry of Environment, Forest and Climate Change (MoEFCC) on October 2 2021, proposed significant amendments to the Forest (Conservation) Act, 1980 (FCA). In a consultation paper uploaded by the ministry, deregulations, penalties and norms on non-forestry activities in forest lands have been suggested.

The ministry has sent a copy of these amendments to all states asking them to revert with their suggestions and objections over the next fifteen days, after which a draft of these amendments would be tabled in the parliament.

Broadly these amendments are limiting the ambit of the FCA making it easy for the diversion of forest land for non-forestry purposes and propose to exempt certain agencies like the railways and road ministries for "strategic and security" projects from seeking permission from the centre prior to such actions.

“Diversion of forest land for non-forest purposes has become a rule rather than an exception,” Former secretary to the government of India, EAS Sarma has written to the ministry.

“The Forest Rights Act (FRA) is still not implemented in its true spirit and till that happens, there is no point in amending the FCA,” said Sanghamitra.

However some feel that the act is old and needs to be revisited.

"The SC definition of the forest is still limiting, the criteria for defining forest is different for all states, it is very confusing. The four-page law (FCA) has more confusion than clarifications a lot has happened after 1980 so there is certainly a need to relook the forest CA act," said Sanjay Upadhyay, a senior Supreme Court environmental lawyer and managing partner of ELDF, an environmental law firm.

"All amendments however should follow the non-regression principle, the core idea can't be diluted and has to be inclusive of the idea of livelihoods and people and biodiversity."

Sanjay Upadhyay, a senior Supreme Court environmental lawyer and managing partner of ELDF, an environmental law firm.

The consultation paper was released on a national public holiday and responses were sought within fifteen days, which goes against the government's own policy of providing at least thirty days for such public consultations.

“In March the centre had sent a draft to amend the FCA, nobody knew what this draft said, only leaked excerpts were seen by all,” said Sanghamitra. “Now this consultation paper has finally come out in a very hurried fashion.”

The consultation paper has proposed that relaxations for the use of forest land should be made for agencies working on strategic and security projects of national importance.

"Strategic is subjective. What is strategic and what is not is a big debate? It is better to have a precautionary approach than exempting all strategic projects," said Sanjay.

The exempted land includes all forest land owned and acquired before 1980 by the Railways. However, the ministry proposes that certain pristine forests should be kept intact for “showcasing rich ecological values” for some time.

"There is an attorney general's view which says that there is a clause in the railways act which says it is notwithstanding any other act meaning it should have precedence over the FCA. My view is that land acquired earlier can still be exempted but all land that afresh has to be assessed."

The proposal also says that while increasing the forest cover continues to be a priority, “there is a need to dispel the apprehension among tree growers that vegetation or tree plantation raised on their private/ non forest lands will attract the provisions of the Act.”

The paper also proposes to use technology to extract oil natural gas under the forest land by drilling holes right outside it, “Ministry considers use of such technology is quite environment-friendly and as such should be kept outside the purview of FC Act,” the paper says.

All Stakeholders are Not Included

“The FCA amendments are ignoring how the diversion of forest lands will affect people,” said Sarma.

Not only are the amendments making the extraction and diversion of forest lands easier, they are excluding the role of tribals, an intrinsic part of the forests from the entire picture. These amendments will have far reaching implications for the local communities.

“There is a need for amending the forest conservation law to recognise the tribals' role in conserving the forests,” said Sarma adding that the provisions of PESA and FRA need to be factored into the forest conservation law and the tribal Gram Sabhas empowered to have a say in decision making.

“The proposed amendments give the impression that the intent underlying them is more to facilitate diversion of forest lands than to conserve them. These amendments are likely to pave the way for business houses appropriating the forest lands more easily. This will pose a serious hurdle in the campaign to conserve the forests and enlarge their extent as per the national forest policy,” said Sarma.

What Happens if these Amendments are Passed?

The consultation is still a suggestion of proposed amendments. After including the suggestions made by states, the government will table a bill of these amendments in the Parliament, where it will be debated before being passed.

However, if this proposal is passed in the shape it is currently in, it would be detrimental to India’s forests.

Experts say the amendments will dilute the act and defy its core purposes of forest conservation.

“The need of the hour is to reverse this trend, so as to make it difficult for the forest lands to be diverted for non-forest purposes and ensure that the idea of compensatory afforestation yields tangible benefits. The proposed amendments do not answer this concern fully.”

EAS Sarma, former environment secretary to GOI

Experts warn that the ambiguity of the term ‘strategic’ will be used by agencies to exploit loopholes and used as a tool to get easy clearances by surpassing the centre.

The encouragement being given to ‘private plantations’ without considering them as forest land will promote plantations on private lands helping the government meet its targets for forest cover.

Environmentalists in the past have been apprehensive of such plantations being counted as 'forests'.