This is the third in a series of articles by the Vidhi Centre for Legal Policy about cooperative federalism in India.
The functioning of the Ministry of Environment, Forests and Climate Change (MoEFCC) in recent months has been marked by a steady chipping away of environmental safeguards, especially in matters relating to forest conservation. Rather than amendments to primary legislation, executive instruments like circulars, office memoranda and guidelines have been the MoEFCC’s tools of choice in weakening environmental impact assessment and forest diversion processes. In contrast, the Compensatory Afforestation Fund Bill, 2015 (‘the CAMPA Bill’), which was introduced in the Lok Sabha on May 8, 2015, is the first major legislative initiative of the MoEFCC. It replaces the existing ad hoc Compensatory Afforestation Management and Planning Authority (‘CAMPA’) with permanent Central and state bodies. These bodies will receive funds collected from forest diversion processes and monitor their utilisation for compensatory afforestation (‘CA’) works.
The CAMPA Bill is a revised version of a 2008 draft that was defeated in the Rajya Sabha because of the objections of state governments to the excessive concentration of fund management powers in a Central authority. The 2015 version changes this by making state authorities the primary recipients of the bulk of the money received from users seeking the diversion of forest land. However, problems with forest diversion processes do not end with devising a suitable mechanism of fund-sharing between the Centre and the states. Poor coordination between the MoEFCC and state forest departments, gaps in data about the status of land in forest and revenue records, and varying administrative procedures in different states to make land available for CA have all contributed to the poor implementation of the forest diversion and CA process under the Forest Conservation Act, 1980 (‘the FCA’).
Uneasy division of obligations
These are problems that are fundamentally rooted in the disproportionate demarcation of responsibilities between the Central and state governments. The provisions of the FCA and the directions of the Supreme Court in the landmark Forest Case, T.N. Godavarman Thirumulkpad v Union of India, have resulted in the Central government exercising increasingly greater powers of control over forest diversion. This has come at the expense of acknowledging the diversity of local conditions and the effective utilisation of the knowledge of authorities on the ground. This centralisation is prompted in part by recognition of the fact that the developmental interests of state governments may clash with forest conservation objectives. Nevertheless, even this centralisation does not go far enough in imposing sufficiently unambiguous duties on state authorities to ensure compliance with the FCA. The many violations of the FCA described in detail in the 2013 Report of the Comptroller and Auditor General on Compensatory Afforestation in India (‘the CAG Report’) bear testimony to this Centre-state conflict.
The CAMPA Bill does not do enough either to address this complexity of Centre-state relations. At a more fundamental level, the very idea of CA which the Bill seeks to regulate has been criticised for ‘institutionalising compensation for forest loss’. Single species plantations that attempt to compensate for diverted forest land have a damaging effect on biodiversity. The CAMPA Bill does not make an attempt to more narrowly define the kinds of afforestation that are likely to prove more ecologically beneficial and which therefore ought to be prioritised using the funds received under the Bill. Changing the manner in which CA is currently conceived is a precondition of any reform of the forest diversion process. However, there are serious doubts about the political will for this kind of substantive recasting—the MoEFCC recently issued guidelines to state governments permitting them to open up degraded forests for management by private companies, compounding worries about more plantations causing even greater loss of biodiversity.
Even if reconceptualising CA is likely to prove an uphill task, there are a series of simpler steps that can be implemented to address the deficiencies highlighted in the CAG Report. These steps, discussed below, are particularly targeted at clarifying the process by which forest diversion and CA is conducted and at easing the confusion caused by the participation of Central and state authorities in the process. Crucially, some of these steps take the form of legislative amendments to the CAMPA Bill and the FCA. These are likely to provide more certainty to the existing legislative framework than the ad hoc guidelines and orders that have been the preferred mode of operation of the MoEFCC so far.
Database of Forest Land
The CAG report highlighted glaring discrepancies in data about forest land diverted and non-forest land received between the records of the MoEFCC and state forest departments (The variations were 3.5 and 17% respectively). Maintaining up to date records is vital not just from the perspective of conducting a post-diversion audit of CA, but also in order to make an informed decision about whether or not forest land ought to be diverted in the first place. An audit of CA works conducted in Himachal Pradesh in 2014 reveals why reliable records about forest and non-forest land are so important — state forest department officials attempted to explain why CA was conducted only up to 3 per cent of the required amount by citing the non-availability of land; however, it is apparent that this factor is routinely ignored by Central authorities while granting approval for forest diversion.
Although there is some mapping of forest cover in the country, including its classification into different kinds, this geographical information also ought to maintain continuously updated links with the legal status of the land — whether it is classified as forest or non-forest and whether its status has correspondingly been transferred and mutated to and from forest and revenue records.
The CAMPA Bill requires the executive committee of the national authority that it sets up to maintain and update a public information system. Either the Bill or the rules framed under it should require this information system to include an inter-linked geographical and legal map along the lines described above. This will improve the quality of decision-making processes and allow more efficient monitoring of compliance with conditions attached to forest clearances. It will also help in recognising and settling rights under the Forest Rights Act, 2006.
Changing the status of non-forest land
Guidelines issued by the MoEFCC under the FCA state that before a project is allowed to commence on forest land, a suitable area of non-forest land on which CA will be carried out must be identified and then transferred to the relevant state forest department. The department will then commence the process of declaring such land reserved/protected forest (‘RF/PF’), after which CA may be undertaken. However, in practice, the CAG report revealed that of the records reviewed by it, of 11,000 hectares of non-forest land transferred and mutated in favour of state forest departments, only around 3,000 hectares were declared RF/PF. Once again, inconsistent data in this regard was obtained from Central and state agencies. The MoEFCC’s proposal to constitute a committee to review this contradictory data as well as the non-declaration of RF/PF is only an ad hoc solution unsuitable for a more systemic problem.
State governments will not be motivated to take necessary steps to commence CA unless approvals for the diversion of forest land are also made contingent on demonstrating proof of these steps. In addition to the transfer of non-forest land to state forest departments, its declaration as RF/PF must also take place before Central approval for diversion is granted. The nodal officer of the state government must submit evidence of this transfer, mutation and declaration as part of the forest diversion proposal submitted for approval. Most importantly, this condition ought to be given the status of a legal condition by amending the FCA Rules, rather than existing as a guideline.
After the CAG, it is now the turn of the Central Information Commission to attempt to introduce transparency and accountability in the conduct of CA works in different States. In response to an RTI query, the commission has asked state forest departments to disclose information regarding the manner in which CA funds are being used, including information about the species and locations of saplings being planted. According to the conservation biologist who filed the application, species-specific records are important in determining whether or not CA work is being undertaken with due regard to biodiversity.
These examples demonstrate that the importance of good data and record-keeping in ensuring smooth implementation of legislation cannot be underestimated. In the field of forest conservation, better information systems and clearly drafted obligations are small, but important first steps in plugging the gaps created by a complex network of Central and state authorities.
This piece is based on a report titled ‘Cooperative Federalism: From Rhetoric to Reality’ by the New Delhi-based Vidhi Centre for Legal Policy, a legal policy think tank doing legal research and assisting government in making better laws. The report is being released on the September 23, 2015.