SC directs govts to follow ‘broad’ definition of forests: How they are defined, what law says on conservation

Why was the Forest (Conservation) Act amended in 2023?

In the Statement of Objects and Reasons for the Forest (Conservation) Amendment Bill, 2023, passed by both Houses in July-August last year, the government said that applicability of the FCA had been widened by the judgment of the Supreme Court in T N Godavarman Thirumalpad v. Union of India (December 12, 1996).

“Subsequent to the said Judgment, the provisions of the Act were applied in… recorded forests which had already been put to various type of non-forestry use, thereby restraining the authorities from undertaking any change in the land use and allowing any development or utility related work,” the Statement of Objects and Reasons said.

Environment Minister Bhupender Yadav told Parliament that the amendments were necessary to remove ambiguities created by the judgment, which had made the FCA applicable to all areas that resembled the dictionary meaning of ‘forest’.

As a remedy, the amendment made the FCA applicable only to notified forests and lands that were identified as ‘forest’ in government records.

How exactly did the Supreme Court define ‘forest’ for the purposes of the Act?

The court ruled that the FCA would apply to all land parcels that were either recorded as ‘forest’, or which resembled the dictionary meaning of forest.

The 1996 judgment passed by Justice J S Verma and Justice B N Kirpal said: “The word ‘forest’ must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise… The term ‘forest land’ will not only include ‘forests’ as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership.”

The CJI-led three-judge Bench reaffirmed this principle on Monday, saying that the dictionary meaning of forests had been adopted by the court to align with Parliament’s intent behind legislating the FCA in 1980.

To what extent did the SC’s 1996 judgment really expand the ambit of the FCA, 1980?

The declared intent of the 2023 amendment was to correct the situation arising out of the perceived expansion of the FCA’s applicability by the SC. However, under sub-sections ii, iii, and iv of Section 2 (“Restriction on the dereservation of forests or use of forest land for non-forest purpose”) of the FCA, the ambit of the law is not limited to only “reserved forest” — it bars the unauthorised non-forest use of any forest land.

In the FCA, the term “reserved forest” is used only in the limited context of dereservation. Section 2(i) says that no reserve forest “shall cease to be reserved” without prior approval from the Centre. Clearly, a clause on dereservation can only apply to what is reserved.

This principle was reiterated by the Supreme Court in July 2022 in Narinder Singh & Ors vs Divesh Bhutani & Ors. “As clause (i) specifically refers to a reserved forest…it is obvious that clauses (ii), (iii) & (iv) apply to any other forest… Therefore, forest as understood by its dictionary meaning is covered by Section 2” of the FC Act itself, a three-judge Bench of Justice C T Ravikumar, Justice Abhay S Oka, and Justice A M Khanwilkar ruled.

While the Ministry has repeatedly denied any attempt to dilute the FCA, it did, in fact, drop the most radical amendment it had proposed to strengthen the Act in a Consultation Paper in October 2021.

“Ministry is considering introducing an enabling provision in the Act to keep certain pristine forests showcasing rich ecological values intact for a specific period,” it had said. This was because “there are no provisions in the Act for prohibiting non-forestry use of certain areas which require a higher degree of protection due to their uniqueness and high landscape integrated value.”

This potentially landmark pro-conservation measure was, however, not a part of The Forest (Conservation) Amendment Bill 2023.

What about the argument that following the T N Godavarman judgment, the FCA was impeding the government’s welfare agenda?

The government had justified the 2023 amendments as a means to address the development needs of forest-dwelling tribes. “Today, this (the FCA) comes in the way of building even toilets in schools for tribal girls,” Minister Yadav said in Parliament.

However, the basic development needs of tribal communities are covered under Section 3 of the Forest Rights Act, 2006, that requires the Centre to divert forest land “notwithstanding anything contained in the FC Act” for certain facilities managed by the government.

An amendment to the FCA would not have been necessary only to build these facilities — such as schools, dispensaries/hospitals, anganwadis, ration shops, power/phone lines, tanks, water pipelines, minor irrigation canals, vocational training centres, roads, community centres, etc.

Who challenged the 2023 amendments to the law, and on what grounds?

The challenge (Ashok Kumar Sharma, IFS (Retd) & Ors v. Union of India & Ors) was filed by a group of retired Indian Forest Service officers and NGOs such as Vanashakti and Goa Foundation.

The petitions echoed some of the concerns raised by the dissenting members of the Joint Parliamentary Committee (JPC) that had examined the amendments. The major apprehension was the potential exclusion of 28% of India’s forests that lie outside Recorded Forest Areas from the purview of the FC Act.

The Ministry had assured the JPC that the amended FCA would still apply to all unclassified forests, forests that were “proposed to be notified”, land recorded as forest by even local bodies, and forest-like areas identified by the expert committees set up in pursuance of the 1996 SC order. It had reiterated this stand before the SC in the present case.

The petitioners argued that pending finalisation of the consolidated record of forests — required to be completed within one year under the amended 2023 Rules — land parcels that would have been considered forests under the 1996 judgment could now be used for non-forest purposes without requiring any clearance under the FCA.

At this, the SC explicitly asked its 1996 definition to be followed until the consolidated record of forests was finalised.

What happens now?

States and Union Territories have until March 31 to submit comprehensive records of forests identified by the expert committees constituted as per the 1996 judgment. The Ministry will have to publish this data on its website by April 15.

The Supreme Court said that while the expert committees set up under the 2023 Rules should take into account the progress made by the previous expert panels, they are free to expand the protection umbrella to any forest land that is worth protecting.

The matter will be heard for final disposal in July.