REIMAGING FOREST GOVERNANCE – APPRAISAL OF THE FOREST [CONSERVATION] AMENDMENT ACT 2023

Prof. Sairam Bhat,* Vikas Gahlot,** Jaibatruka Mohanta***

Introduction

The recently passed Forest (Conservation) Amendment Act, 2023[1] introduces significant legislative revisions to the Forest (Conservation) Act, 1980 (FCA), which is a pivotal environmental legislation in India regarding forest conservation. Enacted in 1980, The FCA (now the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980) is one of the smallest enactments in the discipline of environmental law, comprising just 5 Sections. It was enacted with the aim to provide for the conservation of forests, to check the indiscriminate deforestation and diversion of forest land, and to achieve a critical balance between conservation and development. The FCA was designed to achieve these objectives by regulating the de-reservation of forests and diversion of forest land for non-forest purposes, for which it mandated the prior approval of the Central Government.[2] Since, the enactment of FCA, the diversion of forest land has decreased notably from 41.35 lakh hectares (between 1955-1980) to 10.04 lakh hectares (from 1980-present), with 12.39 lakh hectares of compensatory afforestation being undertaken.[3]

Although the FCA is generally regarded as a pivotal legislation, however, over the course of 43 years of its implementation, several issues, challenges and ambiguities had emerged that required addressal. These challenges include ambiguities related to the meaning and interpretation of forests and “deemed forests” (particularly post the landmark judgement of T.N. Godavarman Thirumlpad v. Union of India),[4] the necessity to create a level playing field with regard to leasing of forest land, the requirement to statutorily recognize certain exemptions related to strategic and public utilities etc. In addition to that, the FCA also required adjustments in the backdrop of a dynamic and rapidly evolving international and national environmental landscape with the recognition of contemporary issues like climate change, global warming and India’s commitment towards Net Zero Emissions and Nationally Determined Contributions (NDCs).

In this context, the Forest (Conservation) Amendment Act, 2023 was enacted to address these issues. It makes significant amendments to the FCA that include the insertion of a preamble, providing clarity regarding the application of the Act, providing statutory support to certain practised exemptions, broadening the delegated legislation power of the Central Government, etc. This short appraisal explores and explains the key provisions of the Amendment Act in order to elucidate and provide a clearer understanding of their implication and significance with regard to the regulation of forests in India.

KEY HIGHLIGHTS OF THE FOREST (CONSERVATION) AMENDMENT ACT 2023

Insertion of Preamble

The Amendment Act inserts a preamble in the FCA.[5] The preamble gives statutory recognition to India’s commitment of achieving its Net Zero Emission by 2070, Nationally Determined Contribution (NDC) targets by 2030, and increasing India’s forest and tree cover to one-third of its land area. Further, the preamble lays emphasis on India’s rich tradition of preserving forests and biodiversity and envisages enhancement of forest based economic, social and environmental benefits, including improvement of livelihoods for communities that are dependent on forests.[6]

Application of the Act

The newly inserted Section 1A demarcates the land which will be covered by the FCA and also exempts certain land from the applicability of FCA.[7] Section 1A(1) provides that The FCA will be applicable to (a) forest lands i.e. either declared or notified as a forest under the Indian Forest Act,1927[8] or any other Act in force; and (b) those lands which have been recorded as forests in  Government records on or after 25^th October 1980. However, the Act will now not apply to those recorded forest lands that have been duly diverted for non-forest use before 12^th December 1996.[9] For clarity, the explanation appended to Section 1A(1) provides that government records means the records “held by” the Revenue or Forest Departments of the State Government or Union Territories, or any other authorities, local bodies, communities or councils that are  recognized by the State Government or the Union Territories.[10]

Exemptions[11]

Further, section 1A(2) lists certain categories of land that are exempted from the purview of the FCA. As per this sub-section, the following categories are exempted:

• Forest land situated along rail lines or public roads maintained by the government providing access to a habitation, rail or roadside amenity of a maximum size of 0.10 hectare. This will assist forest dwelling and rural communities gain accessibility to civic amenities and main-stream the indigenous population with the rest of the country.
• Tree, Tree Plantations or reafforestation raised on lands which are neither declared/notified as forests nor are recorded as forests in any government records. This exemption clarifies that private plantations will not be considered as deemed forests. This is to encourage private plantations in contributing to greater tree cover, therefore helping India’s commitment in achieving 1/3^rd of our land areas as Ecological areas for our commitments in the NDC under the Paris Agreement.
• The Forest land that is (i) situated within 100 kms [aerial distance] of international borders/ Line of Control/Line of Actual Control, to be used for the construction of strategic linear project of national importance and concerning national security (ii) forest land of area up to 10 hectares (10 ha) that is to be used for building security infrastructure, and (iii) forest land area up to five hectares (5 ha) that is proposed to be used for defence-related or public utility projects or for building paramilitary camps in a Left Wing Extremism (LWE) affected area, as notified by the Central Government.

However, it is pertinent to state that these exemptions are not blanket exemptions. They will be subject to terms and conditions laid down by the guidelines of the Central Government, which will be issued from time to time. These terms and conditions can include requirements such as compensatory afforestation activity to compensate for the felling of trees in such forest areas.[12]

Narrowing Down the Ambit of Non-Forest Purpose

As stated earlier, the primary objective of the FCA is to regulate the diversion of forest land for “non-forest purpose”. Hence, it was imperative to specify the meaning and scope of non-forest purpose. Towards this end, the Explanation appended to Section 2 of the unamended FCA stated that non-forest purpose means the “breaking up or clearing of any forest land or portion thereof” for either cultivation of certain specified type of crops and plants,[13] or any other purpose other than reafforestation. However, the explanation also specified that certain activities that are related or ancillary to conservation, development and management of forests and wildlife are not be counted as non-forest purpose. These activities included establishment of check-posts, fire lines, wireless communications, and construction of fencing, bridges, and culverts, dams, waterholes, trench marks, boundary marks, pipelines, or other like purposes.[14] The Amendment Act has further narrowed down the scope of non-forest purpose by expanding the list of activities which are not be counted as “non-forest purpose”. According to the Amendment Act, now the following list of works are not be considered as Non- Forest purposes:[15]

1. silvicultural operations including regeneration operations;
2. Establishment of check-posts and infrastructure for the front line forest staff;
3. establishment and maintenance of fire lines;
4. wireless communications;
5. construction of fencing, boundary marks or pillars, bridges and culverts, check dams, waterholes, trenches and pipelines;
6. establishment of zoos and safaris, that are owned by government or any authority, in forest areas other than protected areas.
7. eco-tourism facilities that are included in the Forest Working Plan or Wildlife Management Plan or Tiger Conservation Plan or Working Scheme of that area; and
8. Any other Like purposes, which the Central Government may, by order, specify.

Thus, apart from expanding the list of activities that are not be considered as “non-forest purpose”, the Amendment Act also empowers the Central Government to expand this list through orders.[16] Further, the newly inserted Section 2(2) also empowers the Central Government to lay down terms and conditions subject to which surveys, such as reconnaissance, prospecting, investigation or exploration including seismic survey, will also not be regarded as “non-forest purpose”.[17] This was done considering the fact that such surveys and explorations in forest areas do not involve perceptible change in the forest land use. This exception for surveys and exploration is significant considering the need to plan and strategize mines and mineral explorations, map and keep data of activities organised in forest areas.

Creating Level Playing Field with Respect to Grant of Forest Land[18]

Prior to the amendment, the FCA regulated the assignment or lease of forest land by State Governments to private entities by mandating the prior approval of the Central Government before such assignment or lease. However, it did not restrict nor mandated prior approval of the Central Government for assignment or lease of forest land to government agencies. This was considered unfair. Hence the Amendment Act now creates a level playing field between State Agencies and Private Entities. According to the amendment, now the State Government will also requires prior approval of Central Government before it assigns or leases out forest state owned/controlled/managed agencies. The words “not owned, managed or controlled by government”[19] that created this exemption have been removed. Further, the amended Section 2(1)(iii) also empowers the Central Government to lay down terms and conditions to regulate such grants of forest land.

Expansion of the Central Government’s Power of Delegated Legislation[20]

Prior to the amendment, the power of the Central Government to make delegated legislation was limited to making of Rules only. In order to ensure proper implementation of the provisions of the Act, the delegated legislation making power of the Central Government has been expanded and it is now been bestowed with the power to issue “directions” to any central government authority, State Governments, Union territories, or to any organisation, entity or body recognized by them.

ANALYSIS OF THE FOREST (CONSERVATION) AMENDMENT ACT, 2023

The Forest (Conservation) Amendment Act, 2023 has brought about a paradigm shift in the regulation of forests in India and has made several significant and noteworthy changes in the Forest (Conservation) Act, 1980. The amendment is grounded on the various challenges and ambiguities that were hindering the effective implementation of the Act.

First and foremost, through the amendment the scope of the word ‘forest’ has been attempted to be defined and demarcated. This is a crucial legislative clarification in furtherance to the landmark decision of the Hon’ble Supreme Court in T N Godavarman Thirumulkpad v. Union of India,[21] wherein, the Apex Court has, inter alia, adopted the dictionary definition of the word forest, apart from notified and recorded forests. The adoption of the dictionary meaning of forests led to the creation of the concept of “deemed forests” i.e. those areas which are neither notified nor recorded as forests in any government record, but fits within the dictionary definition of forests. This made the concept of forests dynamic and subject to diverse interpretation. Gradually the concept of deemed forests evolved and it was not only interpreted differently but was also used differently, creating an ambiguity as to where the FCA is to apply. Due to this, the development of forest areas, and lands fit for vegetation and habitation was severely constrained. The amendment addressees and clears this ambiguity restricting the application of the FCA to only the notified and recorded forests.

Moreover, the absence of clarity with regard to the application of the Act due to the wide definition of the term forest and concept of deemed forests created issues and challenges for public utilities, and national security and strategy related infrastructure development. It also discouraged people from undertaking plantation, afforestation etc because they might come under the purview of FCA. To addresses such issues and concerns, exemptions through guidelines were already in practice, however, it was necessary to give these exemptions statutory backing and have given much needed clarity to citizen’s interest in forest and also contribute to Nation’s climate ambitions. Thus, through the amendments, public utilities, and national security infrastructure of specified area are now statutory exempted from the ambit of FCA. The exemption related to public utilities, will assist forest dwelling and rural communities, where the poverty rate remains significantly high, have suitable and last mile infrastructure such as communication, electricity, and law enforcement. It is imperative that these provisions should be rigorously adhered to and enforced, to fulfil the objective of the Amendment in spirit.

In addition to that, there was an ongoing debate regarding the meaning of “recorded forests”. Should it include only the forest record or also the revenue record (as per the T N Godavarman Judgement) , or records of any other authority will also count. It is important to note that land is a state subject and revenue records of the government also specifies whether a land is a forest or not. Further, there was also ambiguity regarding, if a land has been diverted to non-forest use for e.g. school, Government offices or agriculture, but has not been recorded as non-forest in the records, whether the FCA will be applicable? Both these ambiguities have now been addressed through the Amendment Act which categorically defines the meaning of the government record to include not only forest records, but also revenue records, and any other record of any authority. Also, the land which has been duly diverted , by government order, towards non-forest purpose on or before 12^th December 1996 (Date of T N Godavarman Judgement) will be exempted from the purview of FCA.

Additionally, it is equally important to highlight that the newly added preamble recognizes the global level issues for which international and national efforts are being made. It emphasis the need to achieve the targets set by India. It underscores the need to accept that fact that we can’t go with the “business as usual” mindset otherwise we will be lagging behind our targets. In a rapidly evolving global environmental and social landscape there is need to go beyond conservation and management. It is also equally important to focus on restoration of forests, maintenance of  ecological security, sustenance of cultural and traditional values of forests while balancing economic needs with carbon neutrality.

Lastly, with regard to the grant of Environmental Clearance [EC], it is significant to note that there are no alterations and the process of obtaining EC remains unchanged. Further, on close perusal, it is evident that the authorities had been granting environmental clearance expeditiously. According to statistics, 3,857 Environmental Clearances were granted out of 3957 applications in the year 2023 as of now.[22] In 2022, 12,496 applications were granted Environmental Clearance which is the highest ever.[23] It is observed that with the power to broadened power of delegated legislation, the Central Government will issue directions and guidelines that will bring in more clarity regarding the process of obtaining EC and Forest clearances.

It is important to recognize that environmental landscape is filled with numerous complexities and challenges. Striking a good balance between development and conservation is never straightforward. Towards this end, the 2023 amendment aspires to reshapes the Forest management by adopting a more nuanced and balanced approach that integrates environmental preservation, sustainable development, India’s international environmental commitments and the need for socio-economic growth.

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* Sairam Bhat, Professor of Law & Coordinator, CEERA-NLSIU.

** Vikas Gahlot, Senior Research Associate, CEERA-NLSIU.

*** Jaibatruka Mohanta, Research Fellow, CEERA-NLSIU.

[1] The Forest (Conservation) Amendment Act, 2023 was passed by Parliament on July 26, 2023, and received Presidential assent on August 4, 2023. Its enforcement is, however, yet to be notified.

[2] The 42^nd amendment to the Constitution, shifted ‘forest’ and ‘wildlife’ into the concurrent list, Seventh schedule of the Constitution of India, thereby giving Central Government prominence in bringing a new law on forest governance in the country. Before 1980, forest was solely  governed under the provisions of the Forest Act 1927 and some State Forest legislations.

[3] The statistics are based on a presentation made by MoEFCC during the Orientation Session on “Dissemination of the provisions of the Forest (Conservation Amendment Act, 2023, held on Sept. 14, 2023. See also The Forest (Conservation) Amendment Bill, 2023, PRS India, https://prsindia.org/billtrack/the-forest-conservation-amendment-bill-2023; See contra Jay Mazoomdaar, The Case for Open, Verifiable Forest Cover Data, Indian Express (Mar. 04 2023), https://indianexpress.com/article/explained/explained-climate/india-forest-tree-cover-data-deforestation-explained-8474163/; Fallacy in Figures, Down to Earth (June 15, 1997), https://www.downtoearth.org.in/coverage/fallacy-in-figure-23868.

[4] T.N. Godavarman Thirumlpad v. Union of India, (1997) 2 SCC 267.

[5] The Forest (Conservation) Amendment Act, 2023 §2.

[6] Id.

[7] The Forest (Conservation) Amendment Act, 2023, § 4 (The Forest (Conservation) Act, 1980 §1A(1)).

[8] The Indian Forest Act, 1927.

[9] 12th December 1996 is the date of the landmark judgement of the Supreme Court in the case of T.N. Godavarman Thirumulkpad v. Union of India & Ors. (1997) 2 SCC 267.

[10] Explanation to The Forest (Conservation) Amendment Act, 2023, § 4 (The Forest (Conservation) Act, 1980 §1A(1)).

[11] The Forest (Conservation) Amendment Act, 2023, § 4 (The Forest (Conservation) Act, 1980, §1A(2)).

[12] The Forest (Conservation) Amendment Act, 2023, § 4 (The Forest (Conservation) Act, 1980, §1A(3)).

[13] The Forest (Conservation) Act, 1980, § 2 explanation (Cultivation of “tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants”).

[14] Id.

[15] The Forest (Conservation) Amendment Act, 2023, § 5(a) (The Forest (Conservation) Act, 1980, §2(1) explanation).

[16] Id.

[17] The Forest (Conservation) Amendment Act, 2023, § 5(b) (The Forest (Conservation) Act, 1980, §2(2)).

[18] The Forest (Conservation) Amendment Act, 2023, § 5(a)(I) (The Forest (Conservation) Act, 1980, §2(1)(iii)).

[19] See the unamended Forest Conservation Act, 1980, § 2(iii).

[20] The Forest (Conservation) Amendment Act, 2023, § 6 (The Forest (Conservation) Act, 1980, §3C).

[21] T.N. Godavarman Thirumulkpad v. Union of India & Ors. (1997) 2 SCC 267.

[22] Ministry of Environment, Forest and Climate Change Government of India, Online Submission & Monitoring of Environmental & CRZ Clearances, https://environmentclearance.nic.in/Default.aspx (last visited on July, 26  2023).

[23] Simrin Suroor, Over 12,000 Environment Clearances Granted to Projects in 2022, a 20 Times Increase Since  2018, The Print (Mar. 28, 2023), https://theprint.in/environment/over-12000-environment-clearances-granted-to-projects-in-2022-a-20-times-increase-since-2018/1477952/.