Proposed Changes to Forest Conservation Act 1980 – Explained, pointwise

Introduction

The Ministry of Environment, Forests and Climate Change (MoEFCC) recently published the proposed amendments to the Forest Conservation Act, 1980.

As per the proposed changes, it would become easier to divert forest land and certain categories of development projects would be exempted from getting clearance from the Ministry.

The Environment Ministry has sent a copy of the proposed amendments to all the States on October 2, seeking their objections and suggestions within 15 days. A draft proposal will be drawn and placed before the Parliament once these suggestions have been taken into consideration.

What is the rationale behind the proposed amendments?

One major reason for changes in the Act is a 1996 Supreme Court judgement in TN Godavarman Thirumulpad versus Union of India and Others. In this judgment, the apex court expanded the definition of forests and said that all the areas that conformed to the dictionary meaning of ‘forest’ or recorded as “forest” in any government record, were to be considered as forests. Earlier, forests were defined as notified in the Indian Forest Act, 1927.

SC’s judgment led to frequent problems, as considering any private area as forest restricts the right of an individual to use his/her own land for any non-forestry activity.

– This is particularly problematic in the case of railways and roads. There is land that these ministries own, but they cannot use it without permission from the MoEFCC. And these permissions can take anywhere between 2-4 years, thus causing delays.  Moreover, several parcels of land acquired by these departments long before 1980 were left unattended and became plantation areas. This land fell under protected forests and these departments had to re-apply for several approvals and also pay compensation for forestation.

Strategically vital projects in border areas and elsewhere, too, had to go through the time-consuming process of getting necessary clearances. Hence, the amendment seeks to remove this provision.

– Also, the amendment would reduce the flow from foreign exchange for the import of wood and wood derivatives to the tune of approximately Rs 45,000 crore by encouraging plantations and afforestation.

– Furthermore, promoting tree plantations on private lands and agricultural farms has, indeed, become imperative now due to the lack of government or community lands for raising new forests. Private participation is vital to meet the targets of covering 33% of the land with forests and creating a carbon sink to lock in 2.5-3 billion tonnes of carbon dioxide, as stipulated under the Paris Agreement on climate change.

What is the Forest Conservation Act,1980?

The FCA was passed in October 1980 and has been applicable since then for the conservation of forests. The Act gave powers to the Central government to approve the use of any forest land for non-forest activities such as infrastructure creation. The Centre’s approval was also needed to de-reserve the reserved forests. The Act mandated a committee to be formed for giving such approvals.

This law has been instrumental in reducing deforestation, as it requires approval from the central government when forests have to be diverted for non-forestry purposes. From 1951 to 1976, about 1.6 lakh hectares of forest area was being diverted every year. The figure came down to 32,000 hectares annually between 1980 and 2011 due to the implementation of the FCA

What are the amendments that have been proposed? 

Following changes have been proposed to the FCA:

i). All land acquired by the Railways and Roads Ministries prior to 1980 to be exempted from the Act. These lands had been acquired for expansion, but subsequently, forests have grown in these areas, and the government is no longer able to use the land for expansion.  

If the amendment is brought in, these Ministries will no longer need clearance for their projects, nor pay compensatory levies. 

ii). Allowing the construction of structure for individuals: For individuals whose lands fall within a state-specific Private Forests Act or come within the dictionary meaning of forest as specified in the 1996 Supreme Court order, the government has proposed to allow construction of structures for bonafide purposes, including residential units up to 250 sq m as a one-time relaxation. 

iii). Exemption to defence structures: Defence projects near international borders will be exempted from forest clearance. 

iv). Oil and natural gas extraction from forested lands will be permitted, but only if technologies such as Extended Reach Drilling are used. 

v). Doing away with levies for non-forestry purposes during the renewal of a lease.

vi). Protected forest and plantations along linear projects like highways and railways that currently require prior central government permission can be used by NHAI or the ministry of railways without forest clearance.

vii). Through the amendments, the Central government will have powers to initiate criminal proceedings against violations. This includes even the state governments, which the Centre can penalize.

What are the issues/concerns associated with the proposed amendments? 

i). Changes proposed in the current definition of forests. Changes aim to implicitly define what does not constitute forests by creating a set of exceptions to the Act. These exceptions include forests in border areas where strategic projects need to be built, private land where plantations are to be established, and forest land which was acquired before 1980 for the construction of railways and highways. Currently, the definition of Forest includes land recognised as forest by the government as well as that which comes under the dictionary meaning of forest land based on the Supreme Court decision in the T N Godavarman case.

ii). More emphasis is on creating an enabling regulatory environment for setting up plantations. These plantations will not attract the provisions of the FCA. But, changes do not define what the nature of these plantations should be and where they can take place.

iii). Exploring and extracting oil and natural gas from beneath the forest lands is proposed to be allowed by drilling holes from outside the forest areas without harming the underground water aquifers. This provision, however, may turn controversial as experts still differ on the efficacy of this technology.

iv). Corporate ownership: The relaxation of forest rules will facilitate corporate ownership and the disappearance of large tracts of forests.

v). Impact on the powers of Gram Sabha: An integral part of the forest clearance process is the requirement of consent of the Gram Sabha. The creation of exceptions to the requirement of forest clearances directly results in the cancellation of the application of this progressive legal provision.

vi). Several environment experts and organisations pointed out that the amendments do not seek to get comments from the ones who’d be most affected – the forest dwellers and remote area citizenry.

vii). Negative impacts on wildlife: Exemption for Roads and Railways on forest land acquired prior to 1980 will be detrimental to forests as well as wildlife 

viii). Fragmentation of forests: One time exemption for private residences on private forest will lead to fragmentation of forests, and open areas such as the Aravali mountains to real estate.

ix). The draft also fails to lay due emphasis on promoting agro-forestry, which has a huge potential to expand green cover in rural areas, apart from generating additional income for the farmers.

x). Against federal structure: The most prominent issue in the amendments is the overarching powers of the Centre, under which it can penalise the state governments too. Several states design their own forests rules, at times in violation of the Central Act, other times to preserve their forest areas. In both the cases however, Centre can penalise states, which experts said is against the federal structure.

What is the way forward?

India’s forest and tree cover at present is less than 25%, as against the recommended 33% of the geographical area. To begin with, a scientific audit of the forest cover is needed.

The changes being proposed to the FCA need to be done in consultation with forest-dwelling communities whose livelihoods and rights are likely to be affected by the remaking of this law.

In conclusion, the de-regulatory approach to changes being made to India’s environmental laws needs to be scrutinised.

Limiting deforestation should guide regulatory decision-making, not compensating with plantations.