Forests are difficult geographies to regulate as they must meet the competing regulatory requirements of conservation, development, and recognition of forest rights. On October 2, the Ministry of Environment, Forest and Climate Change issued a letter documenting 14 aspects that it seeks to change in the key forest legislation, the Forest Conservation Act,1980. This law has been instrumental in reducing deforestation as it requires approval from the central government when forests have to be diverted for non-forestry purposes. The regulatory mechanism of forest clearances allows the ministry to deliberate on whether deforestation should be permitted or not and what the conditions should be if such a permit is granted.
An essential part of the forest clearance process is the requirement that forest rights be recognised and the consent of the gram sabha be obtained. The set of issues that the ministry seeks to use as the basis for changing the law are mostly in the direction of deregulation. They show some intent of giving the law more teeth, like the identification of forest areas which are to be maintained as pristine areas for a prescribed period of time.
The Narendra Modi government has been working towards amending, changing, and recrafting environmental laws in India since 2014. Some contentious attempts have been the draft Environment Impact Assessment notification, where it sought to create exemptions to the requirement of environmental clearances for a set of industries. In 2019, it proposed amendments to the Indian Forest Act, 1927, with disastrous provisions that gave the forest department wide discretionary powers, including the power to shoot at sight. These amendments have been revoked because of sharp criticism from environmental movements across the country.
The amendments proposed to the Forest Conservation Act, 1980 cannot be seen in isolation of these other attempts to remake environmental laws in India. Environmental law has emerged as a space for the Modi government to reengineer the governance architecture to make it more conducive for doing business. The ease of doing business has signified a pathway towards deregulation. Deregulation in this context refers to undoing environmental safeguards and remaking laws in ways that constrain their ability to scrutinise anti-environmental decisions taken by the ministry.
The proposed amendments to the FCA, when seen in this light, work to restrict the scope of applicability of the Act. It does so by critiquing the current definition of forests, which includes land recognised as forest by the government as well as that which comes under the dictionary meaning of forest land based on the Supreme Court decision in the
T N Godavarman case. It aims to implicitly define what does not constitute forests by creating a set of exceptions to the Act. These exceptions include forests in border areas where strategic projects need to be built, private land where plantations are to be established, and forest land which was acquired before 1980 for the construction of railways and highways.
The emphasis is on creating an enabling regulatory environment for setting up plantations, as India needs to create a carbon sink. It argues that these plantations will not attract the provisions of the FCA. How then are plantations to be regulated when deforestation occurs? It does not define what the nature of these plantations should be and where they can take place.
The amendments seek to deregulate by reducing scrutiny over certain decisions to deforest like the use of extended oil drilling for the extraction of oil and gas, which the ministry says is environmental-friendly and thus qualifies for a legal exception. There have not been sufficient ecological studies to support this. Indeed, these exceptions enable deforestation as opposed to regulating it.
The proposed amendments are listed as a set of issues without detailing what the amendments are going to be. This makes it difficult for citizens and experts to partake in a public consultation process. The proposed amendments are not translated into other languages and provide a very short window of 15 days to providing comments. This tactic of limiting citizen participation prevents citizen oversight on these anti-environmental decisions.
As I have previously stated, an integral part of the forest clearance process is the requirement of consent of the gram sabha. This was a hard-won legal gain after many years of struggle by forest-dwelling communities that have been at the forefront of avoiding destructive development projects. The creation of exceptions to the requirement of forest clearances directly results in the cancellation of the application of this progressive legal provision. This will be a step towards undoing a democratic decision-making framework and tilting power towards the state.
The changes being proposed to the FCA need to be done in consultation with forest-dwelling communities whose livelihoods and rights are likely to be affected by the remaking of this law. The ministry as of now has made no such attempts. It becomes imperative that decisions on the identification of forest/non-forest areas be made in consultation with the forest-dwelling communities to ensure that they do not violate any forest rights or that their views are adequately considered if it falls within a community conserved area. In conclusion, the deregulatory approach to changes being made to India’s environmental laws needs to be scrutinised. As the climate crisis looms over us, limiting deforestation should guide regulatory decision-making, not compensating with plantations.
This column first appeared in the print edition on October 16, 2021 under the title ‘Weakening the forest shield’. The writer is a postdoctoral research scholar, Climate Litigation Accelerator, NYU School of Law.