The Union Ministry of Environment, Forest and Climate Change (MoEF&CC) has recently released a Consultation Paper on proposed changes in the Forest Conservation Act, 1980 with reference to the amendments carried out in 1988. Despite being a routine job, the date chosen for the purpose was 126th birth anniversary of Mahatma Gandhi i.e., October 2nd 2021 although it had nothing to do with the occasion. In hindsight this very act of releasing the document poses an immediate irony and stands in stark contrast to the Gandhian ideal of Swaraj (self-rule) because the proposed amendment is a conscious attempt of larceny over natural resources. Ministry has invited comments and feedback on the Paper within 15 days from the date of its release.
This Bhartiya Janta Party (BJP) led Union Government is making every effort towards providing ‘Ease of doing Business’ to please its cronies. This attempt needs to be seen in the same context. Through these proposed amendments it is effectively reiterating that this step is aimed at providing exemptions to businesses on the garb of ‘Development’.
There are 18 amendments proposed in this Consultation Paper. Each one of these is a doublespeak. On the one hand it suggests shrinking the scope of the Act in context of business and development. Simultaneously it talks of expanding the scope of of the Act when it comes to community ownership over forest resources.
It offers full relaxation to the businesses like Safari, linear projects, Mining and other non-forest use on forest land and at the same time restricts and tightens the scope for community access and centuries old traditional ownership of the local communities. Since the matter pertains to the forest land where this Act is applicable, hence it seems disgusting that MoEF&CC has not once given a thought to consult these proposals with the Ministry of Tribal Affairs which is one of the prime stakeholders after the Forest rights (Recognition) Act of 2006 came into picture.
It is quite interesting to note that much recently on July 26th 2021, the MoEF&CC in a written reply had denied that there is no ‘specific definition’ of forest but just 68 days later it planned to amend the Forest Conservation Act, 1980 on the basis of the very definition provided by the Honourable Supreme Court in the famous Godaverman Vs Union of India case also known as Forest Case 202/1995 dated December 12th 1996.
This date is a judicial turning point in the discourse on forest and forest land in India. The Court had then ordered that from now onwards the definition of forest will simply refer to its dictionary meaning. The verdict says that apart from other definitions such as those recorded and notified by the Indian Forest Act, 1927 and in any government record and the land which is being controlled and managed by the forest department in any States and Union Territories, the place where there are trees would be considered as a Forest and the respective land would be considered as Forest Land.
Once this dictionary meaning gets adopted by the forest department, the scope of Forest Conservation Act, 1980 expands automatically. The states and UTs had welcomed this order with open arms Adopting and implementing it without any delay.
What is Forest Conservation Act, 1980?
Initially introduced as an Ordinance through the 43rd Amendment in the Constitution of India and later passed by the Parliament of India as an Act, this smallest Ordinance (later an Act) in terms of size and sections (only 6 sections) addresses concerns regarding growing deforestation and makes provisions for strict guidelines to check any harm to the forest cover due to human activity. It has also shown concern towards further deforestation and made the prior approval of the Union Government necessary for de-reservation of reserved forests and for use of forest land for non-forest purposes. This ordinance also provided for the constitution of an Advisory Committee to advise the Union Government with regards to grant of such approval.
Was it really for the conservation?
Advocate Anil Garg criticises and raises doubts over its objectives, cited above. He explains that on one hand it attempts to stop deforestation, whatever be the reason and on other hand it allows the non-forest use of the forest land making an approval compulsory to even legalise the de-reservation of reserved forest.
In practice anyone can take forest land for non-forest use with due approval from the Union Government and due payment as Compensatory Levy even in the reserve forest as notified under the Indian Forest Act, 1927.
It also discourages local communities to take care of their forests as their traditional practices and makes them offenders if they do any activity in the forest.Anil Garg, Advocate and Forest Rights Expert
If we look at the offences and related penal provisions, it seems very soft in comparison to the Indian Forest Act, 1927. Where Indian Forest Act provides at least one year of imprisonment with regards to forest offence now we have only 15 days of imprisonment. It is strange to see this leniency in face of an offence in an Act that is specifically aimed at conservation.
It treats an industrialist and a local tribal equally. If a village wants to develop some infrastructure on its forest land and an industrialist wants to establish a plant or mine the land, both have to go for an approval for non-forest use of forest land and follow the same procedure.
Anil Garg concludes in his remark with the note that it was basically an opportunity created by the Union Government to somehow place its role into the scheme. . Here we also need to note that after the 43rd Constitutional Amendment Forest was included in the Concurrent List as a subject under Schedule VII of the Constitution that previously used to be a State subject.
How it has impacted the ecosystem around forest, forest dwellers and forest department
Ignoring contextual factors, this blanket order has created lot of confusion and dispute in the forest villages among forest dwellers and the forest department. Almost everywhere it has led to sharp confrontations specially between the local communities and forest departments.
The Act took over community owned forest resources within its purview which again led to a conflict and made forest dwellers’ life difficult. The pre-existing rural infrastructure was compromised and no new infrastructure could replace it. It has also stalled many pro-people development initiatives and deprived people of basic civil amenities in lakhs of villages situated inside or around the forests. A rapid increase in the forest related offences has been noticed in last 40 years.
How to see these proposed amendments?
A most prominent compulsion of these amendments reflects into its intention to increase the forest cover rapidly following the Bio-diversity framework 2020: to
a) Address growing concerns of climate change and global warming. b) To make forest a source of revenue through the increase of carbon storage towards mitigation of climate change threats.
c) To clear road for pending and new linear projects such as railways, highways and connecting the patches inside or around the forest with roads, etc.
d) To ease the approval for mining projects.
e) To create and encourage forest-based ventures such as Zoos, Safaris and tourism, etc.
f) To encourage plantation and afforestation through various provisions like CAMPA and private investments.
What are the issues and concerns on these amendments?
There are a few legal and constitutional questions that need to be asked to the MoEF&CC –
- If implemented, can these proposed amendments overtake/supersede the amendments done in the Constitution of India earlier as 73rd-74th Amendments and the resulting provisions of schedule XI?
- Can these proposed amendments supersede various existing legislations passed by various State Assemblies? For example, several laws that came into force in 1950’s like the very first amendments to the Constitution in 1951, Madhya Pradesh Land Revenue Code of 1954, re-introduced Madhya Pradesh Land Revenue Code of 1959 etc. that eased rights of the local communities by taking away control from colonial rulers?
- Can these amendments take over revenue land under its purview while the revenue land is categorically a State subject in Schedule VII of the Constitution?
- Can any de-notified land from earlier orders be re-notified under the FCA 1980 through these proposed amendments? For example, On December 11th 2014, in a written reply to Question no. 1080 in Assembly it is submitted that the land mass constituted as chhote jhaad and bade jhad ke jungle are de-notified which were notified earlier under section 34A of the Indian Forest Act, 1927 but there is not a single effort made and action taken to separate it from the purview of the Act and recognise community rights used and accessed by the communities for centuries.
- Can the land mass earmarked for the community’s Easement Rights as mentioned in various records of the State Governments and UTs be taken under the purview of FCA, 1980 through these amendments?
- Can the land mass which have been notified earlier under Section 4 of IFA, 1980 and the processes of Sections 5 to 19 (pending) be notified again the under the purview of FCA, 1980?
- Can these amendments deny the 11th Schedule of the Constitution introduced in 1993 through 73rd and 74th Amendments of the Constitution of India? Followed by the institutionalisation of PRIs and PESA in Schedule V areas?
- Can these amendments by-pass the Forest Rights (Recognition) Act passed in 2006 which categorically recognises the rights of communities under Section 3(iii) and gives relaxations for the non-forest use of the forest land towards the easement rights of the communities?
- Lastly, if these proposed amendments are giving prominence to the Supreme Court order dated December 12th 1996 regarding definition of a Forest, why it is not acknowledging another order issued by the same Supreme Court on August 1st, 2003 regarding Chhote-Bade Jhad ke Jungle (small and large wild shrubs) in the line of IA filed by the state government of Madhya Pradesh through which such land were exempted from the purview of FCA, 1980? Can it be included again under the FCA, 1980 through these amendments?
What is the basis of these questions?
To understand these issues, Advocate Anil Garg suggests few relevant examples from the undivided Madhya Pradesh.
I am surprised to learn that the MOEF&CC is proposing amendments in the FCA, 1980 respecting an order issued by the Supreme Court on December 12th 1996 while ignoring another order by the same court issued on August 1st 2003 exempting chhote-bade jhad ke Jungle from the purview of the FCA,1980.Anil Garg, Advocate and Forest Rights Expert
- As per 251 notifications published in the Madhya Pradesh State Gazette till 1975, 4628232 acres of such land in 14507 villages and entire land mass of 31485 villages are de-notified under Section 34A of the Indian Forest Act, 1927 but instead of initiating corrections in land records, the forest department of both the states (MP and Chhattisgarh) are reporting as protected forest land, non-classified land, orange land and forest land as defined by the Supreme Court.
- In Madhya Pradesh, recorded land under the account of Jungle mad and gair Jungle mad means hills, stones, grass, grassland etc. are classified under Section 29 of the Indian Forest Act, 1927 until FCA, 1980 came into force. The district-wise details are provided by the Minister of Forest in Madhya Pradesh in a written reply to Question no. 2304 on March 8th, 2006 in the State Assembly.
- Most importantly it is to be noted that the Supreme Court issued an order on and in line with the IA 791-792 filed by the State Government of Madhya Pradesh and clarified that Chhote Jhad ke Jungle and Bade Jhad Ke Jungle are being exempted from the definition of forest as described in the order of December 12th 1996.
- Since 1975 forest department is continuously abusing the provisions of Section 3 under the Indian Forest Act, 1927 related to the private land. The private land was also taken over by the forest department to be notified and declared as the reserve forest and in this case also the due process is pending. Further to it the forest department is reporting such private land as the protected forest and misleading the Forest Survey of India since then. The details related to encroachment is provided in the Madhya Pradesh Assembly on February 29th, 2016 in the written reply to Question no. 286. The Forest Department shared that in 1926 forest divisions of 19 districts i.e., 30668.826 hectares of land was encroached by the Department under Section 29 of the Indian Forest Act. Information for other districts is being compiled. Through this info we can assume the volume of inconsistencies committed by the department.
It is obvious that without proper and intensive consultation with stakeholders, placing such amendments to please the global and domestic businesses constitute blunder arising out of ignorance towards constitutionally and legally bounded procedures and limitations. This proposal put forward by the MoEF&CC is certainly one of the best examples to understand this case.
Satyam Shrivastava is Co-Director of Society for Rural Urban & Tribal Initiative (SRUTI)