India’s green regulation has entered a new era

“Great chunks of forest were destroyed to meet the demand for railway sleepers, no supervision was exercised over the felling operations; a large number of trees was felled and lay rotting on the ground,” wrote Madhav Gadgil and Ramachandra Guha in their book The Use and Abuse of Nature. Through a trifecta of laws that were promulgated over six decades — the Indian Forest Act of 1865, its cousin, the Forest Act of 1878, and finally the Indian Forest Act, 1927 — forests became an integral part of the colonial project where tightening imperial control over the natural resources on offer in India’s forests coalesced at the core of the British government’s policies. The laws empowered British officials to take over any forested land and secure government control over its resources by drafting rules. Scores of traditional communities were coerced to cede their control over forest produce, which became the exclusive preserve of the colonial authorities.

This was the first phase of the interface between the government and India’s lush forests, one that has passed through three distinct phases in a century-and-a-half — the British era, the early decades of Independence, and the last 40 years. The latest bend on this road came this week, with the passage of two controversial pieces of legislation — the Forest Conservation (Amendment) Bill 2023 and the Biological Diversity Amendment Bill — by Parliament. Throughout this tumultuous relationship, three core principles have remained in friction — the government’s imperative for development and security, the push by industries and businesses to gain maximum commercial value out of forestry, and the safeguarding of forests as an ecological imperative, with the associated conversation around the rights of forest-dwelling communities. And what has remained elusive is a fourth key element — balance.

Independence marked a decisive break for India from colonial policies in a multitude of domains, but environment was not one of them. Though the Indian Forest Act of 1927 — drafted, remember, largely with the purpose of imperial plunder — stood repealed, several state governments enacted their own laws using the colonial statute as a template, wrote Kanchi Kohli and Manju Menon in Development of Environmental Laws in India. With forests out of the central government’s ambit, a haphazard patchwork of laws ensued, with each province attempting to maximise the forestry revenue. The Union government’s role was merely advisory (and anyway, the 1952 National Forest Policy didn’t deviate from classifications made by the British, and prioritised agriculture): The State’s takeover of forests accelerated, and so did the decimation of community rights. Of sole interest to the provinces, it appeared, was accruing revenue for timber, building farms to feed a nation that was yet to become self-sufficient, and big development projects. The most evocative example of the crisis this engendered came in 1970, where an unprecedented landslide blocked the Alaknanda and ravaged modern-day Uttarakhand. Three years later, government-backed loggers chugged into the forests of Garhwal, only to find scores of local men and women hugging trees, refusing to cede ground. The Chipko movement, for the first time, brought into drawing rooms and mohalla chowks, the devastation caused by pillaging forests and unsustainable environmental practices.

In many ways, it hastened the end of the second phase. In 1976, during the Emergency, forests and wildlife were brought under the concurrent list. Emboldened by her forays into protecting the tiger and overhauling the Wildlife Act, then prime minister Indira Gandhi instructed senior bureaucrat Samar Singh to craft a draft law. “Indira Gandhi — unsure that a consensus would emerge on a national law for the preservation of forests, and fairly pessimistic about states taking forest protection seriously — took recourse to article 123 (1) of the Constitution. She got an ordinance issued on October 25,” wrote Jairam Ramesh in Indira Gandhi: A Life in Nature. The Forest Conservation Act, 1980, reversed the government’s focus from timber and revenue, to safeguarding ecosystems. It reversed to an extent the plunder of forests, and helped build protected forests, though exemptions continued to be carved out for developmental projects, especially large dams. Yet, illegal timber operations flourished, and local governments were often accused of turning a blind eye to strongmen-backed contractors. This prompted a member of the former Malabar royal family, TN Godavarman Thirumulpad, to approach the Supreme Court in 1995.

In December of the next year, when the apex court pronounced its judgment, it set up omnibus rules that transformed environmental legislation in India by liberalising the definition of forest to include anything that fits its dictionary meaning, drastically narrowing the discretion available to authorities, expanding the safeguards against unchecked industrial diversion, and instituting harsh punitive measures against illegal timber operations. Gangs were rattled, especially by the top court’s decision to keep the case open to implement its directions in what became one of the world’s longest-standing continuing mandamus. The 1980 law, the 1996 judgment, and the 2006 Forest Rights Act, which restored the rights of forest-dwelling communities, together formed the third phase of environmental regulations — which marked a decisive shift away from revenue and agriculture focussed policies to ones that understood the importance of ecosystems, set up rules to protect large chunks of India’s forests, and finally brought tribespeople into the conversation on conservation.

Yet, problems remained. The top-down approach meant that there was little attempt at democratisation. Local politicians were successful in painting the regulatory regime as thwarting the aspirations of the poor, and a number of states — think of Haryana, and its attempts over decades, and across governments, to ravage the Aravallis — made attempts to undermine the law. Industries complained that the laws were too onerous, and governance gaps meant that there were never any genuine efforts at resolving the contradictions of historical ownership, building a uniform, people-backed policy and updating records.

It is precisely many of these complaints that the government used in Parliament this week to push through the two contentious laws that will cause large tracts of India’s forests to lose protection, possibly hasten development and national security projects in the Northeast, and exempt practitioners of traditional knowledge and Ayush from sharing the benefits with local communities. The laws etch the contours of a new era in environmental regulation where ease of doing business, development projects, and national security and strategic concerns will take centre stage, tilting the balance of power firmly towards the government and mega projects.

Yet, there is one big unknown that can upset all calculations — the climate crisis. Already, the vagaries in climate patterns are sparking wildly varying extreme weather that has not only exacted a wrenching human cost, but a punishing economic one as well. If policymakers are not judicious in their attempt to tinker with ecosystems, the extent of damage can be unmitigated. If we don’t strike a balance of our own will, the climate will make the decision for us.

The views expressed are personal