AMENDING THE FOREST (CONSERVATION) ACT: AGENDA FOR REFORMS
Amending the Forest [Conservation] Act: Agenda for Reform
The Forest (Conservation) Act, 1980 (“FCA”) has been a pivotal legislation in moulding and strengthening the fabric of forest governance in India. Unlike its counterparts, such as the Indian Forest Act, 1927 (“IFA”) or the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006(“FRA”), the FCA echoes the conservationist sentiment of forest governance in India. By setting out a framework that regulates the diversion of forest cover and use of forest land for non-forest purposes, it also reflects the legislative effort towards sustainable forest management in India.
Four decades have passed since the enactment of the FCA and despite interventions through amendments, the Act is still fraught with structural and implementational challenges. To address these challenges, the Ministry of Environment, Forest and Climate Change (“MoEFCC”) has recently proposed an amendment to the Act. The underlying objective of the amendment is to align the Act in tune with the ecological and economic needs of the country.[1] While the proposed amendment has come under the public radar and has evoked mixed responses from different stakeholders, a few gaping issues continue to remain in the Act despite the proposed amendments which ought to be imminently addressed. A few suggestions to address these issues are provided below:
- Expansion and Strengthening the Substance of the Act
An overview of the framework of the FCA as it currently stands highlights that the crux of the Act is concerned with de-reservation of forests and the diversion of forest land for non-forest purposes. In other words, the objective of the Act appears to be the provision of a regulatory landscape for grant of forest clearances. Granted that other parallel legislations categorically address different dimensions of forest governance such as access to biological resources, compensatory afforestation and forest rights; but the sum and substance of the FCA remains to be narrow and limited within the grand scheme of things.
For one, the Act addresses ‘conservation’ with a myopic view, devoid of a holistic understanding of the term. The Act, as it stands currently, employs a prohibitive tone by restricting or prohibiting access to, use or diversion of forests for non-forest purposes. But it does not make any mention of affirmative action for the protection and conservation of species and bio-diversity. It does not address critical matters such as increasing forest resiliency, prevention and mitigation of forest fires, protecting and enriching bio-diversity in forests. As forests are home to myriad living organisms, there is a directly proportional link between the health and quality of forest cover and the existence of diverse species. Failure of the Act to acknowledge this link reduces the objective of the Act to mere instrumental sentiments. If the Act has to resonate with the spirit and normative content of Article 51A(g) of the Constitution[2], it is imperative that conservation efforts be made expressed duty and an essential function of authorities established under the Act.
- Aligning the Forest Conservation Act with the Forest Rights Act, 2006 and CAMPA Act 2016.
Another cause for concern with regard to the FCA is the inconsistencies or friction it gives rise to in implementing other legislations within the forest law framework. A relevant example is the FRA, 2006. While the former is entrenched on protecting forest resources, the latter is directed towards safeguarding of rights of identified communities. The FRA is an over-riding legislation that clearly guarantees forest rights over and above the stipulations of the FCA. However, there have been instances where the implementation of the FCA has led to incongruous clashes with forest rights guaranteed under the FRA. For example, in 2013, the MoEFCC issued a notification which allowed for diversion of forest land for certain projects, without the approval of the Grama Sabha as provided under the mandate of the FRA.[3]This move was met with much criticism as it diluted the democratic objectives of the FRA. Considering these ideological differences, there is a need to strengthen the linkages between the FCA and the FRA to make the two legislations compatible with each other.
Sweeping notifications pre and post independence have converted large tracts of uncultivated wastelands and village commons into protected or reserve forests in several states including those in the Himalayan region with little or no inquiry into their past uses or vegetation cover. Some of these areas are incapable of supporting tree plantations owing to their altitude and climatic conditions. Little or no attention was given to the needs of pastoral communities; nomadic tribes and shifting cultivators whose dependency on ‘forest’ lands remain largely unrecorded in official state records. Moreover, these notifications have adversely impacted nearly ninety per cent of the country’s natural grasslands and rich biodiversity hot spots, that have been declared as state ‘forests’ with the consequent plantation of exotic tree species by the forest department to capitalise on timber produce. [4]
Equally problematic in the implementation the FCA is the management of compensatory afforestation funds under the CAMPA Act, 2016. The CAMPA Act has faced certain drawbacks in the streamlining of funds between the Centre and the State for afforestation measures. As the CAMPA Act is an offshoot of the FCA, the Act can make provisions for resolving issues in the grant and utilisation of funds by the National Authority and State Authorities under the Act. In addition to the utilization of the accumulated state and national CAMPA funds for afforestation drives, several other initiatives aimed at forest conservation and management, including capacity building of officials can be financed. In such a manner, there is a need to integrate the Act to accommodate the objectives of these parallel legislations.
- Making it compatible with the State Forest Laws
The constitutional scheme envisages forests as a matter over which both the Parliament and State Legislatures have legislative competence. This implies that States may also make laws for the management of forests situated within their respective territorial jurisdictions. At present, 20 states and union territories have laws that specifically cater to certain aspects of forest governance. These statutes vary in their objectives, structure, content and scope of regulation. The variations in the state laws present a gruelling test for legal and regulatory framework, as they tend to give rise to conflicting issues. Take for example the identification of forest land. The method of categorising forests and the nomenclature of these categories vary from state to state. While the general categories enumerated under the Indian Forest Act, 1927 are commonly used, in a few states, customary practices may attribute the status of forests to certain areas of land that would otherwise not be recognised as forest land. In this regard, the FCA should address these inconsistencies by broadly defining what constitutes forests. Clarity in this regard will particularly prove effective in managing forests that span across two or more states, thereby avoiding any conflict in governance. Furthermore, any classification of forest land should be preceded by surveys that clearly study and take cognizance of the existing tenurial status and livelihood functions that the land caters to. Therefore, apposite attention should be given to the verification of actual use and status of lands before lands are ‘recorded’ as forests in government records.
- Defining the Roles and Responsibilities of Forest Officers
Owing to the decentralised system of forest governance in India, the administrative structure of forest governance varies across states. Although certain positions such as range forest officers, principal conservator and deputy conservator of forests are common throughout the states, a few offices such as those of forest settlement officers exist only in a few states, as they are created under the state legislations.[5]Considering the varied topography of forests across states and different techniques required to manage them, having a state specific administrative structure is the most viable functional means of forest management. However, itis equally important for states to resemble some parity in the administrative set-up and the division of roles among different officers.
In this regard, it is crucial for a central legislation such as the FCA to identify specific officials whose roles are indispensable in forest governance. Especially for those states that do not have a separate state legislation, the FCA should fill this vacuum by specifying a hierarchical list of officials. Furthermore, it is imperative that the Act spell out the roles and responsibilities of these officials in clear and precise terms. A statutory prescription of roles and responsibilities of state functionaries is essential for creating accountability and transparency. Specificity of functions not only binds the concerned officers by statutorily mandated obligations but also infuses independence in their functioning, free from the control of their political masters.
- Prescribing the Grounds for Rejection of Forest Clearances
The procedure for grant of clearances under the FCA has been a topic of much controversy owing to the scope of subjective bias in the clearance process. As per the mandate of the Act, the grant of forest clearances is subject to the executive decision-making power of the Central Government. Although the Central Government may rely on the scientific and expert evaluation of the Forest Advisory Committee, it is not bound by the opinion of the Committee and may use it own discretion to arrive at a decision that may be contrary to the Committee’s evaluation. Such flagrant discretion raises a few red flags as it gives way for executive bias. The want for statutory mandated grounds for grant and for rejection of forest clearances gives way for capricious and arbitrary decisions, making the bureaucracy complicit to brazen diversion of forest cover. It diffuses the hope of transparency that the law demands.
Given the rate at which forest land is being diverted[6] the need of the hour is the streamlining of the forest clearance process by prescribing specific grounds for the grant and rejection of clearances. A statutory backed list of criteria for grant of clearances will not only serve as a catalogue for guided action, but will also create a check on arbitrary decisions by the Government. Arguably, the grounds enlisted must be inclusive, taking into consideration aspects such as type of forest, the density of trees and wildlife, scope for afforestation, human habitation in and around the forests, proximity to sources of water, the alternate land on which the proposed project can otherwise be undertaken etc.
- Setting up of a Centrally Appointed Committee to oversee forest management
A major cause for the ineffectiveness in the implementation of the FCA is the absence of an oversight monitoring mechanism solely dedicated to the objective of implementing the Act. Currently, the Courts have typically set the monitoring process in motion by appointing committees in specific cases to oversee the implementation of forest clearances.[7]But this has proved to be a cumbersome approach for two reasons; first, the appointment of a committee to monitor the implementation of Act is subject to a lis being raised before a court of law; secondly, the process of selection and appointment of members of the committee has to be undertaken on a case-to-case basis, which renders the act quite tedious.
To obviate such burdens on the judiciary, it is ideal for the Act to allow for a central monitoring committee, which is exclusively tasked with overseeing the implementation of the Act, particularly, the conditions on which forest clearances are granted. A robust monitoring system will not only place checks on flagrant violations of the Act but will also provide updates on conservation efforts under the Act.
- Creation of a Structured Forest Land Record Management System
Given that the legislative and administrative domain of forest management is with the Centre and the States[8], differences in the administrative functioning are bound to occur. Particularly in the management and maintenance of forest land records, there are discrepancies that arise due to differing approaches in recording information relating to forest cover. These discrepancies often create anomalies in the manner in which forests are identified, the demarcation of forest land, the nomenclature of various categories of forests and the required documents that hold relevance for forest management. Furthermore, such differences lead to issues of management especially in matters relating to forests spanning the jurisdiction of two or more states.
For the application of the FCA, land recorded as ‘forests’ under any state land records would suffice. In several states same land is recorded under different categories by both the revenue and forest departments. Given the deplorable state of land records coupled with the mandate under the FCA, a lot of questions ranging from the uses for which such lands were put to in the past, conflicting rights on village commons asserted to be under the domain of the PRIs, Forest and Revenue department[9] and the village forests under community management as enunciated under the IFA are reduced to superfluity. At this juncture, creating a centralised registry to streamline forest land records becomes pertinent. A structured forest land record system will not only infuse uniformity and a standardised structure across states, but will also enable the streamlining information already available vis-à-vis forest land. Considering the variations and diversity of forest cover in India, arguably, a completely centralised system may not be entirely feasible. However, a broad centralised structure that lays down uniform criteria will ensure transparency and reduces the risk of mismanagement of records.
- Strengthening the Penal Provisions of the Act
Another drawback of the FCA is the lack of deterrent force in its penal provisions. At present, the penalty stipulated under the Act is simple imprisonment for a term which may extend to fifteen days. Such meagre penalties are not only woefully remiss of the value of forest resources but also enable violators to pay their way out of violations. The punishment is grossly inadequate, even when the same is compared to the punishment prescribed in the state legislations. For instance, under the laws in the States Karnataka,[10] Andhra Pradesh[11] and Kerala,[12] the maximum punishment prescribed is one year, two years and three years of simple imprisonment respectively. The discrepancy in terms of imprisonment in the Central and state laws clearly highlights that the punishment prescribed in the FCA is based on archaic sentiments of forests and forest resources, which warrants immediate revisions. Furthermore, if the forest personnel and other duty-bearers are to be held accountable, tightening the provisions that impose personal liability on the officers will go a long way. In this regard, the Consultation Paper released by the MOEFCC, which has proposed that violations under Section 2 be punished with simple imprisonment for a period which may extend to one year and making the offence cognizable and non-bailable is indeed a step in the right direction.
Concluding Thoughts
The implementation of the FCA over the past four decades highlights the need for a significant revamp of the legislation. Undoubtedly, the Act is fraught with many a shortfall, which may be addressed with the suggestions provided above. This being stated, a relook into other parallel legislations such as the India Forest Act, 1927 and the Forest Rights Act, 2006 is important. There are glaring challenges in forest management that are kept out of the combined legal framework on forest governance in India. These challenges cannot be single-handedly addressed through amendments in the Forest Conservation Act alone. If the legal framework on forest governance is to be strengthened, an integrated understanding of the laws is required.
* Professor of Law, NLSIU, Bengaluru
** Teaching Associate, CEERA, NLSIU, Bengaluru
*** Research Fellow, CEERA, NLSIU
[1]https://moef.gov.in/wp-content/uploads/2021/10/Public-Consultation-Paper-2.10.21.pdf
[2] India Const. art 51A(g) – “It shall be the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”.
[3] Ministry of Environment, Forest and Climate Change, Notification No. F. No. 11-9/98/FC http://www.forestsclearance.nic.in/writereaddata/public_display/orders/1503732839$FRA.pdf
[4] Madhu Sarin, ‘Law, Lore and Logjam: Critical Issues in Indian Forest Conservation’, Gatekeeper Series, 2005
[5] The Karnataka Forest Act, 1963; The Kerala Forest Act, 1961; The Andhra Pradesh Forest Act, 1967.
[6] As per the MOEFCC statistics, the total area of forest land diverted is 332875 hectares. E-Green Watch, Ministry of Environment, Forest and Climate Change, http://
164.100.195.16/
[7] M. C Mehta v. Union of India, AIR 2004 SC 4016; The Supreme Court Monitoring Committee v. Mussorie, Dehradun Development Authority and Ors : (1997)11 SCC 605
[8] India Const. 1950, sch. VII, lst 3, ent, 17A.
[9] Mahesh Kumar Gaur, R.K. Goyal,, Shiran K, ‘Common Property Resources as Village Ecosystem Service Centre in Drylands of Rajasthan, India’, (2020) 10 (1) Journal of Rangeland Science 57.
[10] The Karnataka Forest Act 1963, §51
[11] The Andhra Pradesh Forest Act 1967, §28E and §52.
[12] The Kerala Forest Act 1961, §27