Greenlight for destruction: Controversial forest Act opens door to unfettered deforestation

It dilutes protections, fuels projects with scant environmental scrutiny. Supreme Court to hear a PIL challenging its constitutionality on January 12.

One of the first projects given the go-ahead under the new act is based in Haryana, where ex post facto approval was given to a private university built on Aravalli forestland. | Photo Credit: KRISHNAN VV

The contentious Forest Conservation (Amendment) Act, 2023 (FCAA), became operational on December 1, 2023, amidst widespread criticism from citizens, scientists, non-profits, andeven legislators. Undeterred by the protests, the Ministry of Environment, Forest and Climate Change (MoEFCC) has started implementing the act now, allowing State governments to clear forest diversions that were deemed illegal under the original legislation, the Forest Conservation Act, 1980 (FCA). The FCAA was passed by Parliament on July 26, 2023, and received Presidential assent on August 4, 2023. In November 2023, the MoEFCC published the Van (Sanrakshan Evam Samvardhan) Rules, 2023, further solidifying the act and giving a free hand to States to regularise encroachments and decide on diversions of forestlands.

The FCAA dramatically alters forest governance in India. It undermines seminal judgments of the Supreme Court; lifts protections from natural forestlands that were secured under the parent legislation (FCA), thus facilitating their commercial exploitation; and exempts a host of infrastructural projects in forest areas from environmental scrutiny. Let us examine all these shortcomings one by one here.

The shortcomings

The FCAA subverts two landmark Supreme Court judgments: T.N. Godavarman Thirumulkpad vs Union Of India & Ors. of 1996, and Lafarge Umiam Mining Pvt. Ltd. Vs Union of India and Ors., of 2011. In the Godavarman judgment, the Supreme Court directed States to identify all unclassified forest areas that meet the dictionary definition of forests, besides what is already protected by the government, and set up State Expert Committees (SECs) to carry out the exercise.

The fate of the SEC reports remains unknown till date. They are not in the public domain, and it is anybody’s guess how many States have actually conducted the exercise. The only report I was able to access—one from Kerala—is vague, and prepared without ground-truthing, mapping, and cadastral surveys. The State argued that the time of one month given by the court was not enough to complete the surveys.

In the Lafarge judgment of 2011, the Supreme Court again directed States to get on with the exercise. It also asked the MoEFCC and State Governments to compile and publish “geo-referenced district forest maps containing the details of the location and boundary of each plot of land that may be defined as ‘forest’ for the purpose of the Forest (Conservation) Act, 1980”. In the 28 long years since the court’s original direction to the States in 1996, this exercise has not been completed, and information about the extent and state of India’s forests is still not in the public domain.

The data from the SEC reports is crucial because citizens deserve to know the extent and geographical locations of the country’s forestlands. In defending the FCAA, the MoEFCC itself relied heavily on these reports, assuring a Joint ParliamentaryCommittee that the FCAA’s protective cover will apply to all forests identified in the reports. But there is no way to verify these claims as this data has not been public.Meanwhile, forest diversions are being expedited under the amended act.

Lack of transparency

Other controversies surrounding the FCAA include a lack of transparency and failure to follow due democratic processes in its implementation. Procedurally, the act should have been referred to the Parliamentary Standing Committee on Science and Technology, Environment and Forests. Instead, it was referred to a Joint Committee of Parliament (JCP). The JCP cleared all the proposed amendments, even as sixlegislators on its panel submitted notes of dissent. The northeastern States of Nagaland, Tripura, Mizoram, and Sikkim also raised concerns about the blanket exemptions given to 100 kilometres of India’s borders, saying that it would open up almost all of their forestland to diversion. None of these concerns was taken into account.

Raitu Coolie Sangham, a peasants’ organisation from Andhra Pradesh, at a protest rally opposing the FCAA, in September 2022.  | Photo Credit: By Special Arrangement

One of the first projects given the go-ahead under the new act is based in Haryana. In December 2023, expost facto approval was given to a private university, the Manav Rachna International Institute of Research and Studies, built on Aravalli forestland. The project was built illegally by encroaching upon the Aravalli forests, in violation of the FCA.Such ex post facto clearance will be considered for many other non-forest projects in the Aravallis, as per the minutes of a meeting of the Forest Advisory Committee held on December 18.

The MoEFCC has also permitted the construction of residential buildings by homestead owners in private and deemed forests of Mussoorie and Goa, as a recent newspaper article pointed out. This, again, is done under the amended act, which removes the environmental protection given to such forest types under the FCA.

In fact, it is understood that shortly after the law was passed in Parliament in August 2023, States began submitting proposals for diverting “deemed” forests, without even waiting for the Ministry guidelines. In October 2023, Kerala’s Revenue Department directed District Collectors to collect data on encroachment of forestlands outside notified forests with the purpose of regularising them, as under the new forest rules these would no longer count as encroachments. The areas include the densely-forested and wildlife-rich districts of Idukki, Kottayyam, Ernakulam, Pathanamthitta, and Thrissur.

Under the new forest rules, encroachments in the densely-forested and wildlife-rich districts of Idukki, Kottayyam, Ernakulam, Pathanamthitta, and Thrissur in Kerala would no longer count as such. This picture shows the rare Eurasian otter in Chinnar Wildlife Sanctuary in Idukki. | Photo Credit: By special arrangement

Similarly, in Odisha, in August 2023, an Additional Chief Secretary in the Forest Department issued a now-withheld order declaring that the concept of deemed forest has been “cancelled” and certain forest areas could be diverted as needed. This includes nearly 66 lakh acresthat are deemed forests, as per a report in The Hindu. Then in December, the Delhi government requested clarification from the MoEFCC on whether certain “deemed forests” that were protected under the FCA could now be diverted, “so that future land diversion cases can be processed accordingly.”

These instances represent only a fraction of a broader trend wherein forest diversions are expedited, granting land for short-term gains, with the act serving to regularise these actions. Such hasty diversions will have irreversible consequences on the ecological balance of landscapes, pose a threat to wildlife and to the well-being of local communities dependent on them.

Flawed logic

The FCAA renamed the parent legislation asVan (Sanrakshan Evam Samvardhan) Adhiniyam, which can be translated as Forest (Conservation and Augmentation/Consolidation) Act, suggesting a focus on afforestation and reforestation as a strategy for fulfilling India’s carbon goals—of creating an additional carbon sink of 2.5-3 billion tonnes by 2030.

But this logic is deeply flawed for two reasons. First, most plantations are failures and cannot replace natural forests in sequestering carbon, providing ecosystem services, serving as watersheds, or functioning as wildlife habitats. This is confirmed by several studies, including a study published in the British scientific journal, Nature, which found that the carbon sequestration potential of natural forests is 40 times greater than that of plantations.

Second, the bigger picture is that under the guise of afforestation, the FCAA introduces sweeping exemptions from environmental scrutiny for a host of proposed infrastructural and extractive projects in several forest types, like unclassed forests, deemed forests or forests as per dictionary meaning, irrespective of ownership, as well as private forests. The projects include mining, expansion of roads and railways, and exploratory mineral surveys, all of which cause significant and irreversible environmental damage. Many of these projects required clearance from the Centre in the past but can now be cleared at the State level.

PIL in the Supreme Court

Thankfully, oppositions to the FCAA have been registered in the courts. In November 2023, the Supreme Court heard a PIL challenging the constitutionality of the FCAA and appealing for its stay. The petition is led by 11 retired civil servants (including two former Secretaries of the Environment Ministry), a former member of the Standing Committee of the National Board for Wildlife, and a wildlife conservationist and policy analyst. The petitioners argue that the FCAA violates several fundamental principles of environmental legislation, namely, the Precautionary Principle, Intergenerational Equity, and Public Trust Doctrine.

They point out that the FCAA, instead of serving as a conservation measure, supports “user agencies”, and is poised to escalate largescale deforestation, which will further exacerbate the ongoing biodiversity crises, intensify human-wildlife conflict, and threaten numerous critically endangered species.

Ecologically fragile areas such as the Western Ghats are threatened by the FCAA. This picture shows the rolling hills of Mukurthi National Park, whose grasslands and Shola ecosystem are considered to be the heart of the Niligiris. | Photo Credit: SATHYAMOORTHY M

One of the most concerning additions is Section 1A(2)(c)(i), which gives blanket exemptions to the use of forestland within 100 km of India’s border for any “strategic linear project of national importance and concerning national security” for the sake of “strategic defence”,but without any environmental safeguards or scientific scrutiny. The petitioners contend that this clause endangers ecologically fragile border areas, including the northeastern States, the Western Ghats and the trans-Himalayan region, and absolves user agencies of any regulatory oversight, such as failure to conduct environmental impact assessments before embarking on projects. This spells danger as these regions are home to many threatened wildlife species like the tiger, the great Indian bustard, gibbons, snow leopards, clouded leopards, and more.

Highlights

• The FCAA empowers State governments to clear forest diversions previously deemed illegal under the FCA, potentially opening the door for past transgressions and weakening legal safeguards.
• The Act undermines key Supreme Court judgments on forest protection, potentially creating a conflict between legislative intent and judicial precedent.
• The FCAA weakens protections for natural forests by potentially facilitating commercial exploitation through exemptions for infrastructure projects and relaxed environmental scrutiny.

Another concerning clause is Section 2(c)(iii), where forestland “up to ten hectares, proposed to be used for construction of security related infrastructure” is exempted from any environmental scrutiny. Prakriti Srivastava, an IFS officer who recently retired as Principal Chief Conservator of Forests in Kerala and is one of the co-petitioners of the PIL, explained its dangerous implications: “This is the strangest, and one of the most damaging clauses in the FCAA. Firstly, it does not explain where it is applicable geographically, implying that this exemption can be applied anywhere in India. In the absence of any further explanation from the MoEFCC, but with a clear protocol for application outlined in the Rules, the clause quietly legalises the possibility of diverting any forest in the country. There is further ambiguity as to what exactly counts as ‘security related infrastructure’, as it is not defined.”

Another bizarre clause classifies environmentally damaging activities, like the setting up of zoos, safari tourism, and ecotourism, as “forestry” activities. In addition, numerous other types of forests—for example, vast tracts of the Aravallis and scrub forests in the Chambal region that boast of rich biodiversity—may be interpreted as not classifying as forests under the new act.

At the hearing, the Supreme Court again directed the Centre to conserve forests as per the “dictionary definition of forests”, as outlined in the Godavarman judgment. Despite assuring the court that it had no intention of diluting the judgment and would not take precipitate action until further directions were issued, the Ministry has continued with the implementation of the FCAA rules. The next hearing is slated for January 12, 2024.

As India grapples with the results of unchecked “development”—as seen, for example, in the sinking of Joshimath, the devastating floods in Himachal Pradesh and Tamil Nadu, besides the ongoing air pollution in urban areas—the need for robust environmental legislation becomes more urgent than ever. But the FCAA amounts to a regression, with rapid facilitation of forest diversions for immediate gains overlooking their catastrophic environmental impact. The preservation of the environment must be at the forefront of national policies, and it is hoped that the Supreme Court’s decision reflects this at the next hearing of the PIL on January 12.

Vaishali Rawat is a wildlife conservationist and writer.