Daily News Analysis

FOREST CONSERVATION ACT

6th October, 2021 Society

Figure 1: No Copyright Infringement Intended

Context

  • The Union Government has proposed absolving agencies involved in national security projects and border infrastructure projects from obtaining prior forest clearance from the Centre as part of amendments to the existing Forest Conservation Act (FCA).

Background

  • The FCA is the principal legislation that regulates deforestation in the country.
  • It prohibits the felling of forests for any “non-forestry” use without prior clearance by the central government.
  • The clearance process includes seeking consent from local forest rights-holders and from wildlife authorities.
  • The Centre is empowered to reject such requests or allow it with legally binding conditions.
  • In a landmark decision in 1996, the Supreme Court had expanded the coverage of FCA to all areas that satisfied the dictionary definition of a forest; earlier, only lands specifically notified as forests were protected by the enforcement of the FCA.

Concessions and explorations

Exemptions to Railways and roads inside forests

  • Land acquired by the railways for establishing a rail line or a road by a government agency before 25.10.1980 (the day the FCA was passed) would be exempted from seeking a forest clearance if they put the land to the same use for which it was acquired.
  • This is included in a provision in the proposed section.
  • The exemption is subject to terms and conditions that the central government will lay down through guidelines, which include planting trees to compensate for the loss of forests.
  • FCA requires the central government’s approval before assigning forest lands on lease to any private person / corporation / organization not owned or controlled by the central government.
  • This clause, however, has purportedly been deleted in the proposed amendment.
  • This may mean that state governments can issue leases for the use of forest land without the Centre’s prior approval.

 

Exemptions to plantations

  • A new explanation to Section 2 proposes to exempt plantation of native species of palm and oil-bearing trees from the definition of “non-forest purpose”.
  • Since the FCA applies to conversion of forest land to “non-forest purpose”, this proposed amendment would effectively mean that anyone who wants to clear a natural forest to raise such plantations would not require any approval from the government.
  • The government will only impose conditions for compensatory afforestation and payment of other levies and compensations.
  • Another explanation to Section 2, according to the documents acquired, says that tree plantations or afforestation project would be exempted from the Act altogether if they come up on lands that are not notified under the Indian Forest Act, not identified by state expert committees as forests, or are described as forests in government records before 1980 and were so “till 31.12.2020.”

Exemptions to wildlife tourism, training infrastructure

  • The FCA classifies activities related to wildlife conservation as “non-forestry” purposes, which means such activities — building check-posts, communication infrastructure, fencing, boundary, etc. — which do not need a forest clearance.
  • The proposed amendment claims to add to this list “forest and wildlife training infrastructure” and the “establishment of zoos and safaris” managed by the government or any authority under the Wildlife Protection Act, 1972.
  • It may also add ecotourism facilities approved under the Forest Working Plan or Working Scheme approved by the central government.
  • States may grant forest clearance for strategic / security projects
  • The proposed Section 2A may empower the central government to provide for state government approval for projects on forest land for “strategic” or security projects of “national importance”, according to the documents accessed.
  • There is no clarity on the scope of these terms, or on the determination of national importance, or illustrative examples of such projects.
  • The Supreme Court in T.N. Godavarman Thirumulpad v. Union Of India & Ors. (Godavarman) on December 12, 1996 had held that the meaning of “forest” under the FCA would include not only statutorily recognized forests; it would include any area recorded as forest in government records, regardless of ownership.
  • The restrictions in the FCA would, therefore, be applicable to both de jure and de facto forests.

The amendment of FCA purportedly seeks to reduce the scope of this judgment by limiting the applicability of the FCA to only such land that has been:

  • Declared or notified as forest under the Indian Forest Act, 1927
  • Recorded as forest land in the government record prior to 25 October 1980, with the exception of such land if its use has been changed from forest to non-forest purpose prior to 12 December 1996
  • Identified as “forest” by a state government expert committee up to one year from the date of the amendment.

Developments in ambit of Forests Act

  • The proposed amendment inserts a new Section 2B, which will allow the central government to delineate forest areas where conversion to specific non-forest uses would not be permitted for a fixed period of time.
  • The delineation would be based on the basis of pre-defined criteria. This could mean, for instance, that a certain dense forest would not be allowed to be converted to a coal mine for the next 30 years, but it could be allowed to be cleared for a thermal power plant.
  • In the Godavarman case, the Supreme Court had directed states to set up expert committees to draw up a list of forests that were not notified under the Indian Forest Act, 1927 (IFA), but deserved to be protected by the FCA.
  • Several states are yet to comply with this requirement.
  • The proposed amendments are relevant to a bevy of forest land-related issues.
  • The proposed amendment excludes from the purview of the FCA those forests which were described as such in government records (but not notified under the IFA) and were put to non-forest use by a government order issued before the 1996 judgment.
  • The Karnataka High Court in Gireesh Achar v. Government of India and Ors case recently dealt with a matter wherein the state government had passed several orders from 1959 to 1969 to de-notify lands classified as “state forest” (but not notified under IFA), and to divert them for non-forest purposes.
  • The lands were then allotted for rehabilitation of displaced people.
  • The state government completed this process of dereservation of reserved forests in 2017.
  • On March 4, 2021, the high court struck down actions of the state government for not taking “prior approval of the central government” as required under Section 2 of the FCA. It recommended criminal action against any officers responsible for allowing non-forest use of forest land.
  • The exemption of zoos and safaris from “non-forest purpose” comes a year after the government proposed to open a zoo in Mumbai’s Aarey forest and a tiger safari in Madhya Pradesh led to objections from biologists.
  • The Goa government since 1996 has formed several expert committees to demarcate the ‘private forests’ that are owned by individuals and are not notified as forests.
  • In 2021, the National Green Tribunal criticized the state governments for the delay and warned of coercive action against officials responsible in case of further delays.