Move to amend forest law raises concerns

The Ministry of Environment, Forest & Climate Change (MoEFCC) has released a public consultation paper on 2^nd October 2021 inviting comments on the proposed amendments to the Forest Conservation Act, 1980 (FCA).  Vidhi Centre for Legal Policy has reviewed the consultation paper and submitted its comments to the MoEFCC on 27^th October 2021. 

Appreciable steps under the intended amendments include protections for pristine forests, introduction of penal provisions for violation of FCA, and the exclusion of afforestation on non-forest lands after 12.12.1996 from the purview of the Act.

FCA is not applicable to any land bearing vegetation

However, the consultation paper and proposed amendments fall short on a number of counts. Most importantly, the consultation paper is premised on an incorrect interpretation of T.N. Godavarman Thirumulpad v. Union of India. It has been settled by the Supreme Court, High Court and the National Green Tribunal that any plantation or forest-like land not notified or recorded as forests in government records will not attract provisions of Section 2 of the FCA, and yet, the consultation paper asserts that the scope of the applicability of FCA extends to all areas which conform to the ‘dictionary’ meaning of ‘forest’.

Some of the proposed exemptions digress from the National Forest Policy, 1988 and the constitutional mandate of the State to preserve and protect forest and wildlife. It is proposed by the MoEFCC to provide exemptions from prior government approval (under FCA) for lands acquired before 1980, when the FCA first came into existence. We believe that this will significantly dilute the Godavarman decision as it will exclude large amounts of land that may have otherwise been deemed or notified as forests.

In the initial years following the judgment dated 12.12.1996 in the Godavarman case, various state governments and lower courts have misinterpreted the decision. However, the SC has clarified on all such occasions that any land bearing trees/vegetation do not qualify for restrictions under Section 2 of the FCA, unless the same has been notified or recorded as forest.

In order to bring clarity to the applicability of Section 2 of the FCA in consonance with various judgments of the SC, an office memorandum/circular may be issued to state governments stating that the provisions of FCA will apply to only such areas which are: 1) Statutorily notified forests under the Indian Forest Act, 1927 or State Forest Acts; 2) Land recorded as forest in the government record; 3) Identified as forests by the expert committees constituted by States subsequent to the SC direction dated 12.12.1996 in the Godavarman case.

Exemption of lands acquired before 25.10.1980 from the purview of FCA must be avoided

The MoEFCC is considering exemption from prior government approval for the lands which were acquired before 1980, when the FCA first came into existence, noting that it has caused resentment in public sector bodies for interpretation of the scope of applicability of the Act over the right of way of railways, highways, etc. The consultation paper mentions that part of such acquired lands was left unused and planted with trees under various government schemes and some of them were notified as protected forests.

The purpose of the FCA is to check indiscriminate clearing of forests and not to prohibit any developmental activity. Exemptions from the requirement of FCA are not recommended to any recorded or notified forest area as those amount to a significant dilution of the original purpose of the Act.

To prevent misinterpretation of the FCA and the Godavarman order, an office memorandum/circular may be issued that all such forests/plantations which are not notified and never recorded as forests will be exempted from the requirement of forest clearance under Section 2 of the FCA.

In order to avoid conflicts or misuse of the FCA for plantations raised on non-forest lands in the future, States may be requested to publish a district-wise georeferenced map of all notified and recorded forests. It may be pertinent to note that the SC direction to state governments to identify forests was a one-time exercise, reiterating that private lands where vegetation and trees spontaneously generate are not forests.

Some additional concerns are summarized below:

1. Exemption of 0.05 hectares of forests for access to roads and railways is arbitrary, likely to be misused and may result in serious fragmentation of forest land.
2. Complete exemption to technologies such as Extended Reach Drilling is dangerous in the absence of sufficient evidence regarding the impact it may have on biodiversity.
3. Bringing all zoos, safaris and forest training infrastructures within the ambit of forestry activities, is inconsistent with the FCA and the FCA Guidelines, 2019 which clearly differentiate low footprint conservation establishments from exhibition-oriented outreach centers. Further, this may disproportionately commercialize forests and disturb forest ecosystems.
4. Exemptions for all surveys and investigations are arbitrary, and such exemptions should depend on the underlying project and its implications on the forest and associated wildlife.
5. Blanket exemptions for border infrastructure projects are problematic as they have a significant impact on sensitive landscape and biodiversity, and may adversely impact the infrastructures themselves, due to resultant environmental hazards in case of extreme weather events. Clearances are currently being given at reasonable speeds, and any changes will unduly compromise the necessary forest clearance processes.
6. Exemption from obtaining prior approval under Section 2 of FCA for various projects interferes with rights/procedures under the Forest Rights Act, 2006. 

This submission also outlines recommendations with respect to FCA, going forward. The importance of inculcating biodiversity offsetting as opposed to mere compensatory afforestation, the need for an ecosystem-based interpretation and a wildlife habitat-based approach for the term ‘forest’ have been suggested.

The full submission can be accessed at the Vidhi Centre for Legal Policy here