Every time forest land was diverted for a development project, industries were required to identify an equal area of non-forest land for afforestation. This requirement changed on June 28, when the Union government notified new Forest (Conservation) Rules, 2022, that allow the exchange of private and deemed forests for compensatory afforestation. Although the rules do not explicitly mention private or deemed forests, documents that Land Conflict Watch, a data research agency that tracks conflicts involving natural resources, obtained from the Ministry of Environment, Forest and Climate Change (MoEFCC) through the Right to Information Act suggest that the rules will apply to such forests. Critics argue that this will lead to the evasion of the stringent provisions laid out for clearing forests for projects relating to mining and other industries.
The changes to the rules come at a time when developers and State governments claim that they find it hard to identify non-forest land for compensatory afforestation. With the new rules, the government seeks to remove such “major bottlenecks” in granting permission for clearing forests. Citing NITI Aayog recommendations, the Ministry notes that it was “desired” to overcome “substantial impediments” under the Forest (Conservation) Act (FCA) in order to speed up forest clearances.
The Godavarman case
In a way, the Union government is directing States to circumvent a 1996 Supreme Court order in T.N. Godavarman Thirumulpad vs Union of India and Ors regarding the identification of forests and their conservation. The destruction of wooded areas of the Nilambur Kovilakam, which had been taken over by Kerala State under the Gudallur Janmam Estates (Abolition and Conversion into Ryotwari) Act in 1969, prompted Godavarman Thirumulpad to file a case in the Supreme Court in 1995.
In its order on December 12, 1996, the court directed that tree-felling and non-forestry activity in forests across the country should be stopped. It also directed States to set up expert committees to identify forests by its dictionary meaning. Lands so identified were to be notified as forests irrespective of ownership.
“Between April 2016 and March 2022, the BJP government approved licences to cut 99,982 hectares of forests across the country.”
More than two and a half decades later, States are far from completing the process. Maharashtra, Karnataka, and Tamil Nadu have identified private forests and deemed forests. Mumbai’s Aarey forest is one such deemed forest. The court, in its order, also directed the Union government to apply the provisions of FCA, 1980, to all forests thus identified. In other words, the government is obligated to protect all forest land and prevent their destruction for non-forest purposes.
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Under the Forest (Conservation) Rules , 2003, subsequently amended in 2004, 2014, and 2017, at least 1,000 trees a hectare must be planted in all compensatory afforestation land to make up for the loss of “land by land” and of “trees by trees”.
In the absence of such non-forest land, compensatory afforestation was to be done on degraded or unclassed forests on twice the area of forests cleared. Unclassed forests are those owned by either government or private individuals or communities, and degraded forests refer to forests managed by the Forest Department that are deteriorating because of soil erosion and desertification.
The new rules say that an identified non-forest land with a canopy density of 0.4 (40 per cent tree cover) or more can be considered for swapping as compensatory land. The earlier requirement to plant 1,000 trees a hectare has also been removed.
Shomonna Khanna, a Supreme Court lawyer, says that the new rules are against the purpose of the FCA, which is to check indiscriminate diversion of forests by States, and will further “erode the architecture of forest and environmental laws in the country”.
Under the FCR, land identified for compensatory afforestation is to be notified as forests and placed under the management of State forest departments. Industries are also supposed to pay levies, which are then transferred to the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) account of particular States.
Rahul Choudhary, founder member of Legal Initiative for Forest and Environment (LIFE), a public interest environmental law group, points out that many States have been reluctant to notify deemed forests. If these forests are notified, FCA rules come into play, increasing the “burden” for compensatory afforestation.
“Instead of directing the States to demarcate and identify private and unnotified forests, the BJP government has now allowed them to do away with the  court order,” said Choudhary. He added that the legality of the rules can be challenged in courts.
Land Conflict Watch’s queries to Union Environment Minister Bhupendra Yadav, Union Minister of State (Environment) Ashwini Kumar Choubey, and Secretaries in the Ministry have not elicited any response until going to the press.
No clarity on forest data
Despite the alarming rate at which forests are being cut down, commitments for compensatory afforestation are either not being met or are unregulated. According to the Environment Ministry’s statements in the Lok Sabha, between April 2016 and March 2022, the BJP government approved licences to cut 99,982 hectares of forests across the country, an area half the size of Noida. Since the enactment of the FCA in 1980, 3.54 lakh hectares of forests have been cleared, an average of 8,448 hectares a year.
Of the 5.67 lakh hectares identified for compensatory afforestation against forests permitted to be cut down, official figures suggest that plantation work is in progress on about 4.73 lakh hectares, or 83 per cent of the total area.
However, according to Environment Ministry documents, officials admit to not having “complete details” on the progress of compensatory afforestation. “Gaps have also been observed in the notification of non-forest lands identified for raising compensatory afforestation,” observed the Ministry.
The 2017 amendments to the FCR require States to create land banks for compensatory afforestation. However, States excluded private forests and unnotified forests from such land banks as FCA provisions applied to all types of forests according to the 1996 Supreme Court order.
The new rules allow States to include in the land banks private forests and deemed forests that are not officially recorded as forests. They categorise such land banks as Accredited Compensatory Afforestation (ACA) lands. The ACA lands are defined as those with a tree cover of 40 per cent or more a hectare or with trees that are at least five years old. If individuals raise a forest on a non-forest private land, they are eligible to be considered as ACA land after five years.
Earlier, compensatory afforestation if done on degraded or unclassed forest lands required using twice the area for afforestation. But now ACAs with areas equal to the cleared forest would be enough.
Tushar Dash, an Odisha-based independent researcher on forest rights, said that with the new rules, “the Environment Ministry has reduced the [importance of the] FCA as a tool for licences-clearing process”.
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He added that the idea of compensating forest loss through afforestation had been similarly compromised and converted into a scheme for easing forest clearance.
Several attempts have been made to change the FCA. Last year, on October 2, the government circulated a consultation paper proposing amendments to the law. Following criticism of the proposed changes, the government stopped short of bringing an amendment. Instead of a more transparent review of the Act in Parliament, the government has notified some of the ideas through these new rules.
Developers to benefit
The new rules also allow concessions to project developers for compensatory afforestation done in lands that are located in protected areas, ecosensitive zones, or adjacent to a notified forest. For instance, if the compensatory afforestation land is adjacent to a national park, project developers are allowed to provide lands that are 15 per cent smaller than the area of forest cleared.
With these rules, Dash says “the government has eased forest diversion and undermined the rights of forest-dwelling communities too”.
Prudhviraj Rupavath is researcher, land and forest governance, at Land Conflict Watch, an independent network of researchers studying land conflicts, climate change, and natural resource governance in India.
- Until now, for every forest land diverted for a development project, industries were required to identify an equal area of non-forest land for afforestation.
- On June 28, the Union government notified new Forest (Conservation) Rules, 2022, that allow the exchange of private and deemed forests for compensatory afforestation.
- According to the Supreme Court order in T.N. Godavarman Thirumulpad vs Union of India and Ors, States have to identify forests. More than two and a half decades later, States are far from completing the process.
- The new rules say that an identified non-forest land with a canopy density of 0.4 (40 per cent tree cover) or more can be considered for swapping as compensatory land. The earlier requirement to plant 1,000 trees a hectare has been removed.
- The new rules also allow concessions to project developers for compensatory afforestation done in lands that are located in protected areas, ecosensitive zones, or adjacent to a notified forest. This will undermine the rights of forest-dwelling communities.