Interview | Why There Is Mistrust About Proposed Changes to Forest Conservation Law

The Forest Conservation (Amendment) Bill, 2023 will not reduce the footprint of mining and infrastructure projects on forests but will enable and legitimise forest diversions, legal researcher Kanchi Kohli tells The Wire.

The Forest Conservation (Amendment) Bill, 2023 was recently sent to a select committee of parliament, triggering protests by some opposition members for bypassing its course. The opposition members, including the Congress leader Jairam Ramesh, said that the Bill should have ideally been sent to the standing committee on science, technology, environment, and forest for scrutiny.

Conservation experts have also taken exception to some of the clauses of the Bill that exempts certain tracts of land from being counted as forest. The Bill seeks to redefine “forests”, and many experts feel that it is being done to open up forest tracts for infrastructure and development work that may cause lasting damage to the environment.

The Wire spoke to Kanchi Kohli, legal researcher at the New Delhi-based Centre for Policy Research, about some crucial questions that are being discussed about the Bill.

Kanchi Kohli. Photo: Twitter/@kanchikohli

Conservation experts have opposed the new Forest Conservation Amendment Bill, 2023. What are the grounds for such opposition, especially when the government claims that it will help India mitigate climate change and fulfill its commitment to Net Zero Emissions?  

The Forest Conservation Amendment Bill, 2023 reflects the twin objectives of creating forest-based carbon sinks for mitigating climate change and creating land for compensatory afforestation to accommodate the diversion of forests for industrial and infrastructure projects. The targets for this were set through India’s Intended Nationally Determined Contributions (INDCs) back in 2015. The Union government has committed itself towards creating “an additional carbon sink of 2.5 to 3 billion tonnes of CO2 equivalent through additional forest and tree cover by 2030”.

The concerns of conservation experts and rights-based organisations can be understood through three themes. First, the prioritisation on unlocking government, private, and institutional land and then enclosing them as plantations than taking a proactive approach to minimise forest loss. The second set of ecological concerns are around creating quick-growing monoculture plantations to replace old-growth biodiverse forests, important for wildlife.

Also read: Jairam Ramesh Points Finger at Modi as Bill To Amend Forest Act Not Sent To Standing Committee

Both these justify the continued diversion of existing forests (especially in socially and ecologically vulnerable geographies) for new infrastructure projects by fulfilling the legal mandate of offsetting forest loss. The third is the absence of any perspective on how existing proprietary, customary, and livelihood use rights will be dealt with for net zero compliant lands or in the case of fresh forest land diversions.

Do you think the new exemptions listed in the Bill are going to eventually help and empower rich plantation owners and corporations? 

For the last decade, the government has been trying to encourage the private sector and private landowners to open their lands as tree plots. The recently amended Forest Conservation Rules, 2022 calls upon private and institutional entities to enter into accredited compensatory afforestation schemes. One way this can be incentivised is to delink such plantations on non-forest lands from prior permissions under the Forest Conservation Act, 1980. Following a 1996 Supreme Court judgment, private lands can attract the dictionary meaning of forests and prevent tree felling or repurposing of land without permission from the Union government. The proposed amendment finds a way around this.

The Bill creates a framework by which forest conservation laws do not affect the rolling out of large projects, most of which are being implemented by private corporations or through public-private partnerships.

Will the Bill in any way affect the forest-dwelling communities?

The lands on which net zero targets will be realised are not empty spaces. Loss of homes, incomes, jobs, and socio-ecological futures are certainly going to happen with the repurposing of these lands.

The statement of objects and reasons of the Bill recognises that new social, ecological, and environmental challenges have emerged since the time the FCA was enacted. However, this does not extend to the issue of forest and land rights. This was a concern at the time of independence, remained unaddressed when the 1980 law was enacted, and continues to be fraught till date. The new Bill could have been an opportunity to necessitate recognition of forest rights and partnership of forest-dwelling communities in the realising climate mitigation targets.

Why did the Supreme Court in 1996 define “Forests” in the first place? What was the context? Wasn’t the definition of “forests” clear?

 The Supreme Court judgment defines forests only for the purpose of applicability of the Forest Conservation Act, 1980. It does not have a social context or ecological basis. The management of forests is in the Concurrent List of India’s constitution, which means both the Union and state governments can legislate to administer forest lands.

While the FCA 1980 allowed the Union government to control the actions of the state governments on lands officially recorded as forests, the Godavarman case extended that power to all lands that attracted the dictionary meaning of forest, irrespective of ownership. India still does not have a formal definition of what constitutes forests.

The new Bill proposes to include only those lands which are recorded as forests on/after October 25, 1980. What impact will this clause have?

 The Bill defines the applicability of the FCA, 1980 and seeks to limit the scope of the 1996 Godavarman judgment that required all state governments to identify deemed forest areas that will require prior “forest clearances” irrespective of whether they are officially recorded forest land. Most state governments have found it difficult to complete this process due to conflicting claims, including by government departments and lack of land records. The Bill attempts to close the continued identification of deemed forest lands. It says that the FCA, 1980 will apply only to those lands that have already entered government records as forests. However, the legal standing of this proposal needs to be whetted especially if it is seen to be side-stepping the Supreme Court judgment that has not been reversed.

A forest in Sikkim. Photo: Pradeep Kumbhashi, Wikimedia Commons CC BY 2.0

The Bill was recently sent to a select committee instead of the standing committee meant to look into such environmental and forest laws. Do you think it was done deliberately to escape proper scrutiny? 

Parliamentary standing committees are regular oversight bodies and have an important function in reviewing Bills and legislations under their thematic jurisdiction. A proposed amendment would have benefited from the review by the standing committee. There is apprehension about whether a select committee chaired by an MP of the ruling party will be able to lead a non-partisan assessment of the Bill. Perhaps the only way to address this is also to carry out a series of consultations on the Bill so that there can be an informed and transparent debate on the issue which can then inform the parliamentary discussions.

Also read: Under New Rules, Centre Can Approve Diversion of Forests Without Consent of Forest Dwellers

You had earlier said that the changes in the Forest Conservation Act seek to “reorganise the four decades of Centre-state interactions”. Could you explain a little?

 In 1976, the 42nd Amendment to India’s constitution introduced forests as a Concurrent subject. This enabled the Union government to enact the Forest Conservation Act, 1980 and control state actions as until this time then forests were governed either as land or agricultural plantations, both of which are state subjects. The Supreme Court’s 1996 judgment further extended the Union government’s legal jurisdiction.

The unlocking of land for the purposes of plantations or limiting the scope of the FCA allows for state governments to regain control over lands that may attract dictionary meaning of forests but are not entered as forests in any government records. These lands can be monetised by private actors along with state governments to create carbon sinks and enclose them as compensatory offsets. It will be important to understand and watch how state governments respond to this.

Forests have been tinkered with or destroyed for the purposes of mining, infrastructure work, and such activities for around 30 years now, ever since the Indian economy opened up. How do you think the Amendment Bill will be anything new in that aspect? 

The Bill is not meant to reduce forest diversions. It operationalises the strategy that more land under tree cover will help neutralise India’s carbon footprint and also help meet the compensatory offset requirements of domestic legislations. In fact, the creation of trees outside forest areas will also enable the methodology of the biennial state of the forest report, where such tree lands outside forest areas can be calculated as forests.

Therefore, the proposed amendments and previous changes in forest conservation rules are not designed to reduce the footprint of mining and infrastructure projects on forests but will enable and legitimise forest diversions.