Forest conservation is the law. What does a new bill seek to amend?

The bill has also faced widespread opposition from legal experts, those specialising in the Forest Rights Act and the Panchayat (Extension to Scheduled Areas) Act, people from northeastern states among others. At least four notes of dissent have been submitted by MPs from opposition parties in the 31-member joint committee and most opposition MPs have raised concerns about specific clauses in the bill.

The joint committee approved and adopted its report on the forest conservation amendment bill 2023 last week.

The bill brings about sweeping changes to how forests are governed; seeks to clarify what constitutes a forest, and hence attract provisions of the Forest Conservation Act in case of diversion. Here are some of the contentious issues:

The definition of forests

One of the objectives of the bill is to remove any ambiguity around the Supreme Court’s December 12, 1996 judgement in TN Godavarman Thirumulpad vs. Union of India and others, where it directed that “forests” will not only include forest as understood in the dictionary sense, but also any area recorded as a forest in government records irrespective of ownership.

The bill, however, seeks to limit the applicability of the Forest Conservation Act only to the land that has been recorded in government records as forest, as on or after October 25, 1980, thus creating an exception to the Supreme Court direction.

This clause can jeopardise vast tracts of ecologically important forests and leave out several so-called unclassed forests that cover around 15% of India’s total forest cover, a report by a high-level working group constituted by Vidhi Centre for Legal Policy had said which was submitted to the joint committee in May.

“It will threaten a vast tract of forest land by creating an exemption from the Act. That will lead to massive deforestation, fragmentation of existing forests and cause irreparable damage to biodiversity and other ecological services,” the report stated.

In many states, important ecosystems are protected and managed as forests even though they are not notified or recognized as forests. Some of them also include sacred groves and privately managed lands which have high ecological significance.

In their notes of dissent, opposition parties recommended that forests include land that has been declared or notified or is under the process of being notified as a forest following the provisions of the Indian Forest Act, 1927 or under any other law for the time being in force; land recorded as forest irrespective of their ownership; forests protected by local or tribal communities; and also land used for compensatory afforestation in lieu of forests that are diverted for any infrastructure projects.

The 100-kilometre exemption for development

One of the proposed clauses exempts prior clearance for strategic developmental projects of national importance on forest land situated within 100 km of international borders. Large areas of the northeastern states fall in this category. Majority of the international border of India lies on the ecologically fragile regions of Himalayas and northeast India which are also vulnerable because of the seismic risks, climate change induced extreme weather events which have been on the rise since the past few decades.

These biodiversity hotspots are known for hosting wide variety of endemic wildlife such as Red Panda, Snow Leopard, Kashmir Stag, Tibetan Antelope, Markhor, Hoolock Gibbons, etc. and many other flora and fauna endemic to this region, according to Vidhi’s high level committee report. Some MPs have recommended that the bill should cover a specific strategically sensitive area, such as certain Himalayan ranges, and not the entire country. But legal experts have said even that can be tricky Himalayan region is ecologically sensitive and has unique biodiversity.

The amendment bill also exempts from seeking prior forest clearance, strip forests (up to 0.10 hectares) situated alongside a rail line or a public road maintained by the government; tree plantations on private lands that are not categorised as forests; up to 5 ha area proposed to be used for construction of defence related or public utility projects in a Left Wing Extremism (LWE)-affected area. In the case of public utility projects, MPs have recommended that the draft bill should state clearly that these lands shall be directly under the government, as opposed to leasing out to private agencies or other entities.

Do the provisions sideline Forest Right Act?

A major concern flagged by forest rights groups is that the proposed amendments in the bill are likely to adversely affect the protection accorded to Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) under the FRA because if the land falls outside the scope of the Forest Conservation Act, it effectively eliminates the requirement of obtaining consent from the gram sabha for diversion of that land.

The FRA provides for recognition of the forest rights of the STs and OTFDs, and by doing so, it intends to address the historic injustice these communities have faced because of the denial of their forest rights. The FRA applies to all types of forest land including unclassified forests, un-demarcated forests, existing or deemed forests, protected forests, wildlife sanctuaries, and national parks.

“All these exemptions directly violate Forest Rights Act because the FRA establishes the rights and governance of communities and gram sabhas over all forest land and requires the government authorities to ensure compliance of FRA and the consent of gram sabhas before diverting forest land. The Supreme Court, in its judgement in the Niyamgiri case (Orissa Mining Corporation vs Union of India, (2013) 6 SCC 476), has also reiterated the legal requirement for ensuring compliance of FRA and consent of Gram Sabhas before the diversion of forest land. Therefore, proposed exemptions are also in violation of the Supreme Court judgment,” a submission by a group of organisations working on the Forest Rights Act to the government’s joint committee, stated.