- The 2023 amendments to the Forest (Conservation) Act exclude the category of ‘deemed forests’ which was an important safeguard for large swathes of forest and forest-like ecosystems.
- However, the amendments may hold the key to an alternative – that of community-led recording of forests – because they recognise lands recorded as forests in government records, writes the author of this commentary.
- By enabling a shift from a bureaucratic to a community-led definition of forests, these amendments can pave way for the protection of not just the erstwhile deemed forests, but other ecosystems such as grasslands and scrubs.
- The views in the commentary are that of the author.
The latest amendments to the Forest (Conservation) Act, 1980, have been widely criticised for diluting the legal safeguards applicable to forest lands. Incidentally, this coincides with the union government’s ascendant focus, demonstrated especially through international fora and commitments, on the climate problem and on nature-based solutions to development challenges. This narrative also finds expression in the newly inserted preamble of the Act using the vocabulary of sustainable development and carbon neutrality. However, the effect of the amendments has been the (re)definition of forests to narrow their scope, in addition to encroaching on the definition of “non-forest purpose” thereby enabling diversions for a number of questionable purposes.
Critics of the move have argued that the amendments will exclude 28% of India’s forest cover, including large swathes of natural growth forests, from the scope of the Act. This is unlikely to be compensated quantitatively or qualitatively by increasing plantations and trees outside forests which is one of the government’s stated objectives. Their justification of improving the lives of forest dependent communities is also on a weak footing because the revised law eliminates the requirement of appraising supposed benefits, such as improved connectivity or ecotourism, against the costs, including the loss of ecosystem services that these communities depend on.
The challenge of defining a forest
The explicit definition of forests in the 2023 amendment has been designed to reverse the gains made in the recognition of forests through more than two decades of judicial intervention. In December 1996, the Supreme Court in Godavarman Thirumulpad vs Union of India & Others held that ‘forest lands’ under the FCA refers to all forests irrespective of the nature of ownership or classification thereof. This induced a paradigm shift in the earlier tendency of governments to consider only lands controlled by Forest Departments as forests which eased the diversion of other forest and forest-like ecosystems.
By adopting a wider interpretation reliant on the dictionary meaning of forests, the court provided prominence and protection to an important, yet ambiguous, category often referred to as ‘deemed forests.’ The importance of this category is exemplified in the case of the La Farge mine in Umiam, Meghalaya. As part of the project’s Environmental Clearance in the early 2000s, the Divisional Forest Officer certified that the land identified for the mine was not a forest, as it was not notified or recorded as such, only to be contradicted a few years later by the Chief Conservator of Forests who upon visiting the site observed thick natural vegetation cover. The delay in recognition of the land as forest, however, meant that the forest clearance process that was subsequently triggered was a fait accompli.
The weakness of ‘deemed forests’ was its indeterminacy which often consigned their fate to bureaucratic and power dynamics. The Supreme Court, in its 1996 order, had envisaged this being remedied by the efforts of Expert Committees to be appointed by state governments to identify all forest lands in accordance with the court’s ruling. However, the progress made by the Expert Committees in more than two decades was uneven, opaque and contentious rendering the process of official recognition of deemed forests largely ineffective.
The recent amendments have excluded deemed forests from the scope of the FCA, thus, reverting to the pre-Godavarman understanding of forests as only notified or recorded forests. Some states jumped at this opportunity to remove impediments to the diversion of deemed forests even before the amendments were put into effect.
Inclusion in government records
On the face of it, the amendments have indeed narrowed the scope and undone the spirit of the Godavarman order. Is there, however, a way to retrieve that spirit?
Section 1A(1)(b) of the Act potentially offers such a path towards the recognition of forests. The newly inserted Section 1A sets out the lands that are recognised as forest under the Act. Forests comprise of lands that are, as per sub-section (1)(a), “declared or notified as a forest” or, as per sub-section (1)(b), “recorded in government records as forest, as on or after 25th October, 1980.” The explanation to Section 1A(1)(b) clarifies the meaning of a ‘government record’ as including “any record held by Revenue Department or Forest Department of the State Government or Union Territory Administration, or any authority, local body, community or council recognised by the State Government or Union Territory Administration.”
While the inclusion in government records has always been a mechanism for recognition of forests, this has typically been understood to be records maintained by administrative authorities such as the Forest or Revenue Departments or district administrations. The explanation, however, provides a much wider definition that includes records held by local institutions such as panchayats, district councils and gram sabhas.
The term ‘records’ also has a wide import that can be gleaned from the Right to Information Act, dealing with transparency of government records, which defines it to include any document, manuscript or file, images and any other material produced by a computer or any other device. Under the Constitutional scheme which state panchayat laws typically follows, gram sabhas and panchayats have powers over various matters relating to forests such as social forestry, minor forest produce, fuel and fodder and maintenance of community assets.
In areas to which Panchayat (Extension to Scheduled Areas) Act applies, they have a larger role in the management of land and natural resources. These local institutions are statutorily empowered to make decisions and pass resolutions on matters falling within their competence and these would be recorded in the books of the panchayat which constitutes a government record. Arguably, even a video recording of a gram sabha decision recording lands as forest that is kept with the gram panchayat should constitute – subject to its evidentiary value being ensured – a government record because it is a record held by a local body.
A good remedy for Biome Awareness Disparity
Community-led recording of forests can be beneficial in two ways. The immediate effect of this would be the continued recognition of lands so recorded as forest and the continued applicability of the forest clearance process for their diversion. Though it would not address the various concerns with the forest clearance process itself, it can ensure that diversion proposals at least receive scrutiny in accordance with the FCA rulebook. State forest laws, that would apply to lands that are excluded from the FCA, mostly date back to the decades prior to the 80s and are devoid of the environmental jurisprudence that has evolved since then and procedures for appraising diversions. The rate of diversion prior to and after the FCA is pegged at 160,000 hectares and 20,000 hectares per year respectively, which points to the criticality of ensuring the continued application of FCA for ecological security and the welfare of forest-dependent communities.
There is yet another important opportunity at hand. Biome Awareness Disparity (BAD) is the “failure to appreciate the significance of all biomes in conservation and restoration policy.” A large part of India’s land area, particularly in the semi-arid regions, is comprised of grasslands and scrub forests which are of immense ecological and socio-economic importance. They are significant carbon sinks, the livelihood basis for India’s large pastoralist system and the natural habitat for threatened species such as the great Indian bustard and Indian wolf (as well as the government’s cheetah reintroduction plan).
India is estimated to have lost 20 million hectares of grasslands between 1880 and 2010 which is comparable in magnitude to the 26 million hectares of forests lost during this period. Even today, however, less than 5% of this important ecosystem is under protection and the call to action in the National Wildlife Action Plan 2017-31 for appropriate bio-diversity representation in the country’s protected area network has remained as a dead letter.
Large tracts of grasslands are officially classified as ‘wastelands’ which eases and encourages their diversion for alternate uses such as renewable energy projects, industries and, ironically, compensatory afforestation. To add insult to injury, solar and wind energy projects which are booming on the back of India’s green energy goals are excluded from environmental impact assessments under the Environmental Protection Act. Bringing these lands within the purview of the FCA will trigger the requirement of forest clearance which will enable the scrutiny of their diversions for social and biodiversity impacts. A case in point are the orans, sacred groves of Rajasthan, which are important sites for grazing and biodiversity, including the critically endangered great Indian bustard, but increasingly vulnerable to expansionary renewable energy plans. Long-standing local struggles for the recognition and protection of this common property resource have met with the consistent neglect of administrators and the derecognition of deemed forests makes the challenge steeper.
Even as the amendments to the FCA constitute an abdication by the union government of its constitutional duty under Article 48A to safeguard forests, it (perhaps inadvertently) creates space for a counter-movement anchored in the citizens’ duty to protect and improve the environment under Article 51A(g). Admittedly, the reading of the amendments advanced here is interpretative but a similar view appears to have been offered by the Advocate General of Meghalaya. In practice, such an interpretation would also contend with the reality of our political economy that is heavily stacked against these local institutions. However, I submit that the possibility at hand to shift from a bureaucratic to a community-led definition of forests, without additional cost or administrative procedures, makes it an opportunity that is worth engaging with.
The author is a policy analyst at the Centre for Policy Design, Ashoka Trust for Research in Ecology and the Environment.
Banner image: A village mapping exercise for forest protection at Sindidigar, Toranmal, Maharashtra (2019). Photo from Lok Sangharsh Morcha/ Wikimedia Commons.