Bill to amend Forest (Conservation) Act passed in Parliament: objections, concerns around it

Restricting applicability

In December 1996, the Supreme Court ruled that the FC Act would apply to all land parcels that were either recorded as ‘forest’ or resembled the dictionary meaning of forest. Until then, the FC Act applied to areas notified as forests under the Indian Forest Act, 1927.

This blanket order made the FC Act applicable to all land recorded as forest and to all standing forests irrespective of their land status, restraining “development or utility-related work.” Further, notes the Bill’s statement of reasons, “apprehensions prevailed regarding applicability” of the FC Act in the plantations raised on private and non-forest land.

As a remedy, the Bill proposes that the Act will be applicable only on notified forest land and land identified as forest on government records except such forests that were already put to other use prior to the 1996 SC order.

To numerous objections received by the Joint Committee (JC) of Parliament on the Bill, the ministry responded by assuring that the amended Act would still apply to all unclassified forests, forests that were “proposed to be notified”, land recorded as forest by even local bodies recognised by a state government, and forest-like areas identified by the expert committees set up in pursuance of the 1996 SC order.

The ministry also assured that any error would be taken care of “in the guidelines” to be issued after the amendment.

This is a recurring pattern in the JC report: the ministry promises to provide specifics on various aspects of the Bill through guidelines, leaving critical issues “to the discretion of the Executive at subsequent junctures, creating scope for misinterpretation and misuse.”

States’ objections

The Bill’s other primary goal is to satisfy the “need to fast track” projects of strategic importance, national security, and public utility within 100 km of the international borders and in “Left Wing Extremism affected areas”.

While Himachal Pradesh wanted the Act to define ‘National importance and National Security’ and Chhattisgarh wanted it to “mention explicitly” the types of security-related infrastructure and the user agencies, the ministry said that the Defence and Home ministries would identify the qualifying projects.

Mizoram was apprehensive that “any activity coming under the definition of linear project by any agency can be taken up mentioning it as a project of national importance or national security as all work in one way or another are of national importance and any work in states having international borders can be termed by the working agencies as of national security.”

Sikkim was one of the smaller states to point out that exempting 100 km from the borders would “subsume the entire state and open up pristine forest areas” and wanted the proposed exemption limits to be reduced to 2 km. The ministry assured that the exemptions would not be for private projects.

On the other hand, BRO and Arunachal Pradesh, wanted the exemption range of 100 km to be increased to 150 km in order to reduce the “infrastructure differential” with China. The ministry clarified that it could not give blanket exemption.

To a number of submissions asking for specifics on public utility projects, the ministry said that the issue would be clarified subsequently through a guideline.

Focus on plantations

“Agreed, natural forests, lost from the diversion, cannot be replaced with the plantation,” submitted the ministry, adding that the proposed Bill encourages plantations in private lands to enhance the carbon sink.

An essential condition for forest clearance is that a developer must carry out compensatory afforestation on equivalent non-forest land or, if non-forest land is not available, on degraded forest land twice the extent of the forest area diverted. Since land is always at a premium, this works as an effective check on the demand for forest land.

In June 2022, the government amended the Forest Conservation Rules to propose a mechanism to allow developers to raise plantations “over land on which the [FC] Act is not applicable”, and to swap such plots against subsequent requirements of compensatory afforestation.

“With a view to encourage plantation on the non-forest lands, a clarity has been provided in the Bill to keep such lands outside the purview of the Act,” the ministry told the JC.

An expert, who was consulted on the matter by the ministry, explained the likely scenario: “Once the FC Act is no longer applicable on a piece of land, it can be used to raise plantations and compensate for an equivalent area of diverted forest land. This will incentivise building private land banks of plantations, and streamline the forest clearance process.”

To a submission that the Bill potentially excludes 28% of India’s forests— 1,97, 159 sq km of 5,16,630 sq km of the forests lie outside Recorded Forest Areas — from the purview of the FC Act, the ministry assured that the amended Act will apply to revenue forest land, private forest land and other recorded forests.

Not everyone was convinced. “There is an overwhelming reliance on implied meaning of provisions,” wrote one of the five dissenting members of the JC, “rather than categorically laying out safeguards in the text of the amendment.”