FORESTS- YOUR TREASURE. SAVE THEM !

Comments/Suggestions/Objections to the Proposed Amendments to the 'Forest Conservation Act, 1980'

The history and perspective behind the 'Forest Laws' in India date back to the colonial exploitation of India's Forest Lands. It was under the British when extensive Forest Lands were disturbed and deforestation peaked, in order to gather timber for the British.  Under the circumstances, it had become an urgent necessity, post independence to reform and amend the exploitative and problematic imperial laws of the forests. It was  in pertinent to  make these laws more democratic,  federal,  transparent and accountable in nature.

One of the major amendments that were made to the Indian forest laws were the amendments to the 'Forest  Conservation Act, 1980'. It was in 1996 when the Hon’ble Supreme court expanded the very meaning of the term 'Forests'. The key concern was to preserve the forests, create a fund for deforestation and  democratise, federalise an erstwhile colonial law with no transparency and accountability.

The proposed amendments as stated in the consultation paper by the Central Government violates the very thrust of the 'Forest Laws' that were enlisted in a democratic and independent India.

It may not be out of place to mention that only 15 days time has been given to the objectors for putting up the objections where as the 30 days time is mandated under the Countries' pre legislative Consultation Policy. The Proposed Amendment is also only in English language and not in regional languages, which again violates the recent High Court Orders in the issue of 'Draft EIA Notification, 2020'. It should be made  available in at least the 22 official languages as stated in the VIII Schedule of Indian Constitution, as it is a matter which directly affects the forest dwelling and tribal communities living inside the forests and also in the fringe 'Forest Areas'.

COMMENTS/OBJECTIONS/ SUGGESTIONS to the proposed amendments:

According to section 2 of the 'Forest Conservation Act 1980 'with amendments made in 1988 , restrictions have been imposed upon the de-reservation of forests or use of forest for non-forest purpose. As per this  section , no State Government or other Authority can pass any order directing-

i. any reserved forest  or any portion thereof to cease to be reserved.

ii any forest land or any portion thereof to be  used for any non-forest purpose

iii. any forest land or any portion thereof to  be assigned on lease or otherwise to any private person or to any authority, corporation,  agency or any other organisation,  not owned managed or controlled by the Government

iv. any forest land on any portion to  be cleared of trees which have grown naturally in that land or portion for the purpose of using it for reafforestation,

EXCEPT  WITH THE PRIOR APPROVAL OF THE CENTRAL GOVERNMENT,  meaning thereby  that all the directions under the above sub- clauses can be passed by the State Government or other Authority only after they they have taken approval / permission from the Central Government.

The proposed amendment to the Forest Act does away with this mandatory requirement of taking prior approval from the Central Government, meaning thereby that any State Government or other authority( there is no definition of ‘other authority’ given in the Forest Conservation Act, 1980  hence the term is vague)  can pass the directions as enumerated in sub- clauses i to iv of section 2 of the Forest Act, without the prior approval of the Central Government, which would be a very dangerous proposition, as all the states / authorities will get a free hand to meddle with the forest land, the way they wish to and use it for non-  forest purposes themselves or sell or lease it for non-forest purposes to individuals, corporates etc who will obviously be using the same for their  commercial gain. Thus the forest areas which are sacrosanct and should not be meddled with, will be  easily used by different states and other authorities, the corporates and moneyed individuals, for commercial purposes.

The New explanation to Section 2 of 'Forest Conservation Act' means that anyone who wants to clear a private natural forest to raise planatations for e.g. of Palm oil (which is currently a non forestry activity) can do so. This is also to be seen in the light of the approval of the cabinet to launch a new Mission on Oil palm known as the National Mission on Edible Oils – Oil Palm (NMEO-OP) as a new Centrally Sponsored Scheme (CSS). There are many adverse environmental impacts of raising Oil Palm plantations. They release massive amount of CO2 in the air. If natural forests are cleared, the amount of CO2 is increased as the 'Forests' are efficient carbon absorbers and the organic carbon rich soils are converted into Oil Palm Plantations.  

Thus this requirement of of' PRIOR APPROVAL'  of the Central Government which is ‘Mandatory’ in the Act now, is necessary for the de-reservation of  reserved forest and for use of forest land for non- forest  purposes and hence should not be done away with,  as it would DEFEAT  the very purpose for which  the  'Forest Conservation Act, 1980''Indian Forest Act 1980', was enacted.

Purported reasons behind the proposed move to amend the Act:

1.The law at present covers all Government Forest lands (whether notified or not )and Lands bearing vegetation irrespective of ownership and classification. This, according to the centre,  leads to ambiguity and results in resistance from private individuals and organisations during land acquisition.

REASON is based upon conjectures and surmises:

BECAUSE

For a decade and a half this law remained applicable only to the forests notified under the Indian Forest Act 1927 or any other local law and to the forest that were under the management control of the forest department but in the year 1996, the Hon'ble  Supreme Court vide an elaborate  order dated 12.12.96 (1997) 2 SCC pg 267, made the law applicable to:

a) All areas,  that are recorded as' forest' in any government record irrespective of ownership recognition and classification.  This included areas  notified as' forest' under any law

b) All areas, other than those covered under separate ( a ) above and conform to the dictionary meaning of 'forest'

c) All areas that are identified as' forest' by the expert committee constituted in pursuance to the order of the Hon'ble Supreme Court for which affidavit was  filed in the Hon'ble Supreme Court in 1997,  accordingly.

The Hon'ble Supreme Court also held in this case as under:

"In view of the meaning of the word forest in the act it is obvious that prior approval of the Central Government is required for any non forest activity within the area of any” forest” in accordance with section 2 of the Act,  all ongoing activity within any forest in any State throughout the country without the prior approval of the Central Government must cease forth with."

Hence the assertion of the Centre that the law at present is ambiguous or results in resistance from Private Individuals and Organisations during land acquisition, is highly misplaced. The protests are not of the persons owning land which is already under the Government  but on the acquisition of ‘forest land’ for commercialization of the same.  

2. Their reasoning: The ministry  of Railways and Ministry of Road,  Transport and Highways have advocated an amendment to the law. The ministries argue they had claimed land to construct/ establish rail lines and roads long before 1980.  They  added while the part of this claimed land was already acquired before 1980 the acquisition of the remaining part of the claimed land has become out of their reach due to the 'Forest Conservation Act'--.

Again based on conjectures

BECAUSE

The forest areas are sacrosanct and should not be meddled with.  Development cannot be at the cost of nature. SUSTAINABLE DEVELOPMENT is the need of the hour. By destroying the forests, human activities are putting the entire ecosystem in danger, creating natural imbalances and putting life at threat.

3. Their reasoning: As India is  a tropical country, wild growth of vegetation on unused land is a common occurrence.  However, the law,  in its current form prohibits the government from acquiring any land where vegetation comes up over a period of time Conjectured argument

BECAUSE:

With prior approval of the Central Government,  it can be acquired

4. Their contention: The centre believes contrasting entries of the same land in revenue and forest records leads to misinterpretation and litigation.  "Revenue records have to statutorily reflect the occupier and the nature of land including forest. It is strongly felt that this recording in revenue record of the plantation afforestation etc on any non-forest land after land after 1996  remain outside the purview of the Act to encourage forestry activities"  --

Again based upon conjectures:

BECAUSE:

It is mandatory for the revenue department to update the revenue records and make necessary entries as per the local revenue laws applicable in the respective states. The so called  “contrasting entries ” in the revenue records exist because the concerned department is not doing its assigned duty of timely updation of revenue records. The FSO (Forest Settlement officer) as per IFA, 1927 is a revenue officer who is responsible to ensure that mutation in records is done. In any case, there should not be contrasting entries in Government records of two different Government agencies. Steps should be taken to correct this discrepancy, rather than using it as an argument to put a 'Forest Land' outside purview of FCA, 1980.

5. Their contention: Strip plantations having been  developed on land alongside many roads and railway lines.  These lands spaces are notified as protected forests. Now many amenities habitations both private and government have also been developed all along such lands but to provide access (approach roads rail )  to these facilities,  prior approval of the Centre is required as the activity is a non forestry use of forest land.

Based on conjectures

BECAUSE:

The strip plantations alongside the roads and railway lines are declared as 'Protected Forests' in many states. The National Forest Policy (NFP), 1988 also encourages plantation of trees alongside roads, railway lines, rivers, streams, canals etc. under 'Social Forestry'. If approach road is needed for such areas, the land can be easily transferred under existing FCA, 1980 provisions.

6. Their contention: The provisions of the existing act are regulatory and not prohibitory. The Centre however,  feels there should be provisions in the Act for prohibiting non-forestry use of certain areas that require a higher degree of protection due to their uniqueness and high landscape integrated value:

BECAUSE   

The provisions are prohibitory and not regulatory. The words used in Section 2 of  Act, which is the relevant section, are  'shall '. Section2 lays down as under:

"Notwithstanding anything contained in any other law for the time being in force in a State,  no State Government or other authority shall make except with the prior approval of the Central Government, any order directing....."

 It is most humbly submitted that all 'Forest Areas' and not only 'Certain Areas', as argued, require a high degree of protection as they are unique in themselves.  

 7. Their reasoning: Obtaining approval for non forestry use of forest land many times delays strategic and security projects of national importance at critical locations along international borders

WRONG assertion

 If the non-forestry use of forest land is for a strategic and security project of national importance,  the Central Government will obviously take a call on the approval with least wastage of time. What is the need of amending and doing away with the 'Prior Approval of the Central Government' altogether for this particular reason.

8. Their reasoning: The Centre opines  that sub section 2(ii) concerning the assignment of mining lease and subsection 2(iii) concerning the use of forest land for non forestry purposes lead to ambiguity." It is also not clear whether such permission under subsection 2(iii) will be construed as' forest clearance' or not.

Based on conjectures

BECAUSE

There is  no ambiguity in either section 2( ii )or 2(iii) of the Forest Act.  The language used in the sections is simple and clear. In fact,  under the Explanation to section 2(iii), it has been clearly  defined as to what is meant by non- forest purpose. Section 2(ii) does not mention 'mining lease' as has been stated by the Central Government in the notification but only ‘lease’.

9. Proposed Amendment: The government also seeks exemption for the use of new technologies like extended reach drilling on forest land.  "Ministry considers the use of such technology is quiet environment friendly and as such should be kept outside the purview of the act".

Incorrect

BECAUSE

The Government is proposing relaxed rules for economic activities by private parties who will definitely come into picture, once the prior approval of the Central Government will be done away with.  The use of extended recharge drilling in forest which  is basically for the exploration or extraction of natural resources like oil and natural gas beneath the forest land are national resources and cannot be  exploited by private parties which will use them only for their own commercial purpose. Hence, the proposal for relaxed rules for economic activities do not hold good.

10. Proposed Amendment:  The owners should be given one time exemption for the construction of structures for bonafide purposes according to the government.

The term ‘BONIFIDE’ IS VAGUE and what  exactly CONSTITUTES the ‘Bonafide’ purpose has not been defined by the Central Government.

11. Proposed Amendment:  The establishment of zoos, safaris and forest training infrastructures should not  be considered non- forestry activities.

These are absolutely non-forestry activities. The most known consequence of 'Deforestation’ is its threat to biodiversity. In fact, FORESTS represents some of the most veritable hub of biodiversity. The forest is home to many rare and fragile species. 80% of the Earth’s animals and plants live in Forests. The establishment of Zoo’s, Safari’ sand Forest training infrastructures in place of the ‘Natural habitat’ for different species, is per se ‘non-forestry activity’.

12. Proposed Amendment: While the government agrees to the clause that mandates the imposition of compensatory levies for non- forestry purposes of the forest land, it feels that double imposition of any levy such as at the time of renewal of the lease, isn’t  rational.

Wrong:

BECAUSE

The proposed Amendment seeks to decriminalize the violations of 'Forest Laws'.

Section 3A of the ‘Forest Conservation Act, 1980' explicitly defines the penalty for contravention of the provisions of the Act. Section 3A of the 'Forest Conservation Act, 1980' is reproduced as under.                    

  “ 3A. Penalty for contravention of the provisions of the Act Whoever                             contravenes or abets the contravention of any of the provisions of                             Section shall be punishable with simple imprisonment for a period,                             which may extend to fifteen days.”    

13. Proposed Amendment: The Centre wants to make the punishment for violation of the law more stringent as there have been instances of violation of the provision of the act.

Contradictory stand taken by the Central Government. On the one hand they propose to decriminalize the violations of the Act, on the other hand, they want  to make the punishment under this Act more stringent.

14. According to the government, in cases where forest land is used for a non- forestry purpose for a very short period of time, the Centre’s approval should not be mandatory as it takes a lot of time

Our Contention: Whether for a short period or a long period, the Centre’s approval  should be mandatory in all cases where the forest land   is being proposed to be used for a non- forestry purpose. In any case, the Government has not defined as to what is a ‘Short Period’

On the whole, the Amendments to the Act would result in more deforestation, and more use of forest land for non forestry purposes, drastic climate change, natural disasters. A  free rein to business entities and industries in these forests Lands shall only mean an encroachment into indigenous forest lands that shall lead to not just an environmental catastrophe but also dispose of 'Adivasis' who are the right owners and conservers of these forest lands.

In conclusion, with these Proposed Amendments, how would India explain its  Constitutional and International commitment towards climate protection and the improvement of forest landshare. India aims to increase its forest share from 22 % to 33%. The amendments shall practically take India back to the colonial era of undemocratic deforestation and commercialization of forests Lands.

Regards,  

Nanita Sharma

Advocate-On-Record

Supreme Court of India 

Nanita Sharma Advocate-On-Record Supreme Court of India     Contact the author of the petition