Parliament panel clears contentious forest law tweaks

A joint committee of the Parliament has cleared all amendments proposed in the Forest Conservation Amendment Bill 2023 despite opposition from various sectors and dissent notes from five members. The most contentious parts of the bill are the exemptions, including exemptions for forest land near international borders and in Left Wing Extremism (LWE) affected areas. Experts have raised concerns that the amendments could dilute the Supreme Court's 1996 Godavarman judgment and violate provisions of the forest rights act.

A joint committee of the Parliament has cleared all amendments proposed in the Forest Conservation Amendment Bill 2023 which was tabled in Lok Sabha in March, despite opposition from various sectors and dissent notes from five members.

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In its 201-page report, the joint committee stated that it received 1309 memoranda along with comments from various state governments, departments and ministries and four notes of dissent from opposition MPs who are part of the committee among others.

The most contentious parts of the bill are the exemptions. One of the major provisions of the bill is to cover only land that has been declared or notified as a forest under the Indian Forest Act, 1927 or under any other law. It also seeks to recognise only forest lands that were recorded as forests as on or after October 25, 1980. The bill states prior forest clearance isn’t needed in some cases, including for forest land situated within a distance of 100 km along international borders or Line of Control or Line of Actual Control, and which are to be used for construction of strategic linear project of national importance. Almost all of the ecologically fragile north-east would fall in this category.

The amendment bill also exempts from seeking prior forest clearance, activity on strip forests (up to 0.10 hectares or ha) situated alongside a rail line or a public road maintained by the government and tree plantations on private land not categorised as forests and for up to 5 ha proposed to be used for construction of defence related or public utility projects in a Left Wing Extremism (LWE) affected area.

The submissions annexed in the report shows widespread opposition to these clauses. The environment ministry in its defence has stated that these exemptions had to be made in view of : absence of clarity on scope of the act ; unclear government records; the need to provide the connectivity to the roadside amenities, habitation and railway lines; with an eye on promoting plantation on non-forest land as envisaged in the National Forest Policy; and because of the imperative of fast-tracking strategic and security related projects of national importance , especially along the international border areas such as Line of Actual Control (LAC), Line of Control (LoC), as also in the notified LWE areas.

Experts, the report admits, have highlighted that the amendments will likely dilute the Supreme Court’s 1996 landmark Godavarman judgment which widened the scope of the FCA (Forest Conservation Act) to apply to any land recorded as forest by the Government irrespective of its ownership — large tracts of orange lands or unclassed forests in the northeast for example. These are lands in central India that are in disputed category because of confusion over jurisdiction under forests and revenue departments.

The environment ministry has clarified that unclassed forests will also be covered. The phrase of the bill “...recorded as forest as on 25.10.1980 implies that all lands which have been recorded as forest even before 25. 10. 1980 will also be covered under the provisions of the Act, the environment ministry has said. Section 1A clarifies that the provisions of the Act will be applicable on all notified lands under the Indian Forest Act, local Acts or laws and lands recorded as forest in the revenue records. “There is no dilution of the Hon’ble Supreme Court order. Explanation provided under proposed section 1A(1) of the Bill clarifies that all forests, including unclassed forests, recorded in the record of Government, Forest Department local bodies, or authority will also attract the provisions of the Act,” the ministry added.

Some experts pointed out that the 100 km exemption from border areas can be detrimental to ecologically sensitive areas of the northeast. “Please look at the northeast, for example. If you are going to exempt 100 kilometres from each border, what is going to be left ? it is a very sensitive area. As it is, we are seeing the problems which are being created because of certain communities who have had traditional rights and customary rights to forests under Schedule VI the Constitution which itself, I believe, is inadequate,” said an expert member quoted in the report (not named).

The environment ministry has said that the extent of 100 km has been decided in consultation with the Ministry of Defence and is considered optimum to meet the requirement of various defence organizations to meet their strategic requirements. The proposed exemption along the international borders and in LWE districts are not generic exemptions and will not be available for private entities.

Experts have also said the bill violates provisions of the forest rights act as it doesn’t clearly speak of prior informed consent of gram sabha on forest clearances. The environment ministry has said it does not violate FRA. “The State Government or the Union Territory Administration, as the case may be, after obtaining the final approval of the Central Government under Section 2 of the Act, shall ensure the recognition of rights under the Scheduled Tribes and other Traditional Forest dwellers (Recognition of Forest rights) Act, which is the FR Act…So, the State Government will issue the final permission only when the Gram Sabha of the concerned area has given the permission in writing.”

The four dissent notes attached are from MPs Pradyut Bordoloi from INC; Phulo Devi from INC; R Girirajan from DMK and Jawhar Sircar and Sajda Ahmed from TMC.

In his note, Bordoloi wrote: “ What remains an obvious gap, even in the statement and objects of the amendment is the reconciliation of the forest conservation legislation with the forest rights question, which should have been important especially when almost all proposed amendments will necessarily come to bear on prevailing, pending or recognised forest rights. There is an absence of any perspective on how existing proprietary, customary, and livelihood use rights will be dealt with for net zero compliant lands or in the case of fresh forest land diversions.”

Kanchi Kohli, a legal and policy researcher, said, “The public engagement with this amendment, despite a limited time frame reflects how much the imagination of forests, trees and their day-to-day governance has come to be entrenched in civic and political space, globally. At the same time the role of existing forests, agroforestry plots and plantations are entrenched national strategies looking to ‘balance’ economic aspirations and climate targets by creation of carbon sinks. The FCA amendment then, is not just a legal change, it reflects India’s approach to forest management, especially in the prioritization of the needs it would serve: protection of community resource rights, conservation, offsets for forest loss or a combination of these. It would also determine where discretionary powers of central government could loosen regulation, and where it could be tightened. The parliamentary debate over the JPC report, is essential as the proposed Bill will invoke a new imagination of forests that is backed by a legal reform.”

Chetan Agarwal, environment analyst, said, “The FCA as it currently stands is applicable to ‘all forest lands’. This has been clarified by courts overtime to include notified forests, recorded forests, and other areas that fulfil the dictionary meaning of forests - or ‘deemed forests’. But the language of the amendment restricts the application of the FCA only to notified forests and recorded forests. Deemed forests are not mentioned. It is claimed in the JPC proceedings by the MoEFCC that deemed forest areas identified by the expert committees have been “taken on record” and are therefore recorded forest. But this is not obvious from a bare reading of the amendment - and if this is indeed the case - then there should be no objection in including this clarification on deemed forests in the amendment. Further MoEFCC has also said that some states have not done the exercise to identify deemed forests - so surely MoEFCC would agree that the exercise to identify deemed forests of natural origin should be completed.”