Controversial Forest Bill Passed In LS But Key Questions Remain
Madhya Pradesh had the highest forest encroachment with 5,460.9 sq km affected as of March 2024, while 10 states are yet to submit data
A Bill proposing radical changes to India’s forest law came closer to becoming legislation on July 26, when it was passed in the lower house of Parliament with barely any discussion.
Last week, a Joint Parliamentary Committee (JPC) accepted the government’s proposals unopposed, despite dissenting views from India’s forest-rich states and committee members, who said the Bill undermines the objective of conserving and protecting existing forests.
The Bill was passed in the Lok Sabha amid ongoing protests by the Opposition against the violence in Manipur, with only a handful of MPs participating in the discussion. It was passed with a majority of the house voting in favour of the Bill, which experts say is likely to dilute environmental norms protecting India’s forests.
“On the one hand, the rules let the forest clearance procedure sideline the need for ensuring forest rights prior to a project get approved. On the other hand, the Bill proposes to make certain projects exempt from the procedure entirely,” explained Meenakshi Kapoor, an independent environmental researcher specialising in environmental clearance processes. “This opens up vast tracts of forest for diversion without any permissions and has the potential to be in conflict with other forest laws.”
The JPC submitted its report of the Forest (Conservation) Amendment Bill 2023 to Parliament last week, in which it deliberated each of the government’s proposed changes clause by clause. It received over 1,300 submissions with objections and recommendations to the Bill. While the report features several of these objections and the Environment Ministry’s response to them, the Committee’s own views and opinions are absent.
Several experts who made submissions say their concerns were either inadequately addressed or ignored entirely.
“None of the concerns, criticisms or recommendations have been taken on board, or even given due consideration by the Committee and Ministry, undermining the democratic process. The whole exercise of inviting comments seems pointless,” said Prerna Singh Bindra, a conservationist who, along with IFS officer Prakriti Srivastava, made a submission to the Committee urging that the Bill be scrapped. “Even if the concerns are cited in the report, they’ve been dismissed without due application of mind.”
Environment Minister Bhupender Yadav said the changes in the law were welcome, and that the “elimination of ambiguities in the applicability of Act will facilitate the decision-making process on the proposals involving non-forestry use of forest land.”
“These amendments will act as a milestone in the enhancement of the productivity of forests, raising plantations outside forests and strengthening the regulatory mechanism besides catering to the livelihood aspirations of the local communities,” he was quoted as saying, in a press note released by the Ministry after the bill was passed.
With no critical insights from the Committee, the Bill is now up for passing in the Rajya Sabha, even as questions remain about its applicability. Several clauses in the Bill give the Central government powers to come up with guidelines, terms and conditions for the Bill’s implementation. However, these terms have not been spelled out in the Bill or in the Committee’s report.
“The only available recourse is for Parliamentarians to debate the Bill in earnest,” said Ritwick Dutta, an environmental lawyer. “If this law passes, it changes the whole meaning of forest conservation altogether.”
Objections On Applicability Ignored
Among the most contentious issues in the Bill include redefining the scope of the law and excluding “strategic linear projects of national importance and concerning national security,” that fall within 100 kilometers of international borders from them. It also proposes to exempt up to 10 hectares of land for security infrastructure and 0.1 hectares of forest land along railway lines and roads.
In 1996, in what is known as the Godavarman judgment, the Supreme Court ordered that the Forest (Conservation) Act of 1980 apply to all forests recorded in government records regardless of ownership, recognition, and classification, as well as those areas which fall within the “dictionary meaning” of a forest. It further ordered that state expert committees identify forest areas to which the law would also be applicable.
The Bill’s text, however, indicates it will apply only to forest lands that are notified under the Indian Forests Act or recorded as forests in government records. This had raised concerns that “deemed” forests – those that fall within the dictionary meaning of a forest but don’t find official recognition in any government record – would be excluded from protection.
“The government has said it will rely on data from the state expert committees which have recorded deemed forests. But not all states have submitted such reports. Those that have are mostly hastily prepared documents not reflecting the situation in the field and therefore are highly inadequate,” said Bindra, adding, “Was an assessment done to see if these reports followed parameters prescribed by the Supreme Court? Was it based on any ground-truthing and science? How can we rely on that data?”
The Joint Committee’s report records C.P. Goyal, Director General of Forests in the Ministry of Environment, Forests and Climate Change, as saying that most states have submitted such data, but does not offer more detail.
In its submission, the government of Nagaland pointed out that “most forest areas in the state are not recorded as forests as no land record is maintained,” as they are privately owned and that the Bill fails to specify how such land will be treated. It suggested adding a new clause that keeps such lands out of the purview of the act, but “keeps them at par with forest areas as far as loss of ecosystem services and biodiversity is concerned.”
The Ministry did not respond to this issue directly. Instead, it repeated a clarification found across the report, stating that all forests found in government records — at state or local level — would be covered by the law. The Ministry also said the Central government would step in to “clarify the applicability of the act,” as and when needed. How it will do so, however, is likely to be outlined in the future.
Apart from Nagaland, Sikkim, Mizoram and Tripura also objected to the clause giving exemption to linear projects of strategic importance that fall within 100 kilometers of international borders, because the entirety of these states would be exempted. “Any activity coming under the definition of a linear project by any agency can be taken up, mentioning it to be a project of national importance of strategic importance, as all works in one way or another are of national importance,” said the Mizoram government.
To these concerns, the Ministry clarified that the 100-kilometer exemption was “not generic” and would only be given to strategic projects approved by the Ministry of Home Affairs and Ministry of Defence. It also added that the permissions given would “be need-based, i.e., may be used within 5 kilometers or 10 kilometers.” The Bill, however, doesn’t clearly state this.
“Either it is in the law, or it is not. Ultimately, what will be debated in court is not what the Ministry said in the Committee’s report, but the law. So, these clarifications need to be in there,” said Dutta.
Impact On Forest Rights
Several submissions objected to the changes in the proposed law’s applicability on account of possible conflicts with the rights of forest dwelling communities, which are enshrined in the Forest Rights Act (FRA) and Panchayat Extension to Scheduled Areas.
The Ministry of Tribal Affairs said, in a submission, that the government should “please consider inserting a saving clause mentioning that ‘the said definition of forest land will not be in derogation of FRA,’” and that the land on which forest rights have been recognised continue to be considered forest land.
According to the report, C.P. Goyal is quoted assuring the Ministry that “we will keep FRA.” Other parts of the report state that it does not “impede with any provisions” of the Forest Rights Act, citing the Forest (Conservation) Rules 2022.
Tushar Dash, an independent researcher specialising in forest rights, said it was misleading for the government to say that there is no contradiction.
“The environment ministry’s response is actually quoting from the Forest (Conservation) Rules of 2022, and not the Bill. The Bill as such has no provision to comply with FRA,” he said, adding, “Even the 2022 rules, which were amended, do not have a proper mechanism to ensure Gram Sabha consent, since it is required after all clearances are already granted.”
Last year, when the rules were amended, the National Commission for Scheduled Tribes had asked the Ministry to put the rules in abeyance, because they did away with previous rules that required authorities to acquire Gram Sabha consent before a project was sent for clearance purposes. Now, the rules make it mandatory to obtain Gram Sabha consent before the land is handed over to the user agency.
“The Joint Committee had an opportunity to point this out. But instead, the same issues have been brought up again and [this has] been completely ignored,” said Dash.
The Future Of India’s Forests
In 2021, the Ministry had put out a discussion paper proposing to make changes in the Forest (Conservation) Act of 1980. At the time, the Ministry had said it was “considering introducing an enabling provision in the Act to keep certain pristine forests showcasing rich ecological values intact for a specific period.”
“Current provisions of the Act are regulatory and not prohibitory and hence there are no provisions in the Act for prohibiting non-forestry use of certain areas which require higher degree of protection due to their uniqueness and high landscape integrated value,” the Ministry had said.
This suggestion did not feature in the Bill, which included most of the other suggestions from the discussion paper. Over the last five years, over 80,000 hectares of forest land has been diverted for infrastructure projects, government data shows.
Experts say that the Bill is likely to facilitate more diversions of forest because of the proposed changes.
Debadityo Sinha, Lead, Climate and Ecosystems at Vidhi Centre for Legal Policy, said, “Even though there are changes that propose to give the central government more control in terms of exempting projects, ultimately the state governments still have the ability to grant or deny permissions for projects. This must not be forgotten.”
(Published under Creative Commons from Mongabay-India. Read the original article here)
