Chitta Ranjan Behera
Advocate, Odisha High Court
Forest Conservation Amendment Bill 2023-Centre’s diabolic agenda for establishing a bureaucratically controlled forest policy regime to dole out the forests for private commercialization by disempowering the forest dwelling communities across the spectrum.
1) The Forest Conservation Amendment Bill 2023 which was tabled by the Ministry of Environment, Forest and Climate Change in Loksabha on 29 March 2023 but referred to the Joint Parliamentary Committee on the same day for a wider discussion among the public, is not a new draft-law by any reckoning. As a matter of fact, the MoEFCC on behalf of the present Government at Centre had issued a ‘Consultation Paper on Proposed Amendments in Forest Conservation Act 1980’ way back on 2nd October 2021 for inviting comments thereon from the State Governments, Ministry’s Regional Offices and all stake-holders from across the country, as a prelude to presentation of an Amendment Bill of like nature in the Parliament. However, before the nation could debate the said Bill, there ensued a fierce controversy around its motives from within and outside the Central Government, leading to its sudden demise. The present Bill-2023 is nothing but a reincarnation of the stillborn Bill of 2021, the only difference between the two being that the top leadership of Central Government are hell-bent around this time to get it through before the expiry of 17th Loksabha in 2024. That seems to be the prime reason as to why the present Bill which was introduced in Loksabha on 29th March 2023 got instantly referred to the Joint Parliamentary Committee on the same day, only to be advertised about a month later for inviting public views thereon. The small interval of only 12days i.e. 3rd May to 16th May 2023 allowed for the nation’s public to send in their views/objections to the JPC reflects the desperation of the Government to ride roughshod over the whole process of pre-legislative public consultation for securing a stage-managed public compliance to its pre-meditated agenda for deregulating the forest governance in the interest of a crony-capitalist class.
2) The Bill and the Statement appended there to have intentionally hidden the findings of the latest Forest Survey (2021), which have shown the total Forest and Tree cover to be 24.62% of the geographical area of the country, that is, 5.28 % less than the ideal 30%. However, as compared to the 2019 Survey, the 2021 Survey shows an increase of 0.28% of forest and tree cover put together at national level. From these two cardinal findings do emerge two decisive mandates for implementation at national level; first, we need to reinforce the existing policies meant for conservation and protection of forests so as to reach the ideal 30%; second, the increase in forest growth howsoever marginal proves the overall efficaciousness of the existing regime of forest conservation and management policies, which instead of being truncated or diluted in any manner, needs to be strengthened and reemphasised. As is well known, the pivot of the existing forest policy regime is the Forest Conservation Act 1980 amended 1988 and the Rules made there-under including its latest Amendments of 2014 nd 2017, which mandate inter alia the statutory compliance to the FRA 2006 and its Rules amended 2012 that provide for recognition of forest rights of STs and OTFDs in terms of ownership, control and management in respect of all forests and forest resources. Thus, it is not understandable at all as to (i) how the proposed Bill by removing a massive bulk of forests from the purview of FC Act 1980 on so many pretexts (national defence, security infrastructure, strategic development projects, re-afforestation, commercial wildlife hubs etc.) seeks to increase the forest cover so as to meet the carbon sink targets and enhance the livelihood of forest dependent communities, and (ii) how taking away the forest rights of STs and OTFDs would fulfil the goal of sustainable development of forests and forest resources in days to come? Thus, the bureaucratically controlled new forest policy regime as mooted by the present Bill of 2023 would not only lead to drastic depletion of existing forest cover but also render the lot of forest dependent communities irretrievably disempowered and impoverished.
3) The text of the Bill-2023 is accompanied by a Statement of Objects and Reasons by the Bill’s presenter Union Minister Shri Bhupinder Yadav, which like the Consultation Paper of 2021 seeks to inform the readership of the broad sweep of changes that have supposedly taken place since the enactment of FC Act 1980. But, as irony would have it, the Statement appended to the Bill deliberately omits to mention the most critical change that has improved the country’s forest governance meanwhile, that is the enactment and implementation of Forest Rights Act 2006 and Rules made there under amended upto 2012, which have entrusted the ownership, control and management of forests and forest resources to the forest-dependent communities, namely Scheduled Tribes and Other Traditional Forest Dwellers. This single most critical omission renders the present Bill from a self-projected instrument for Forest Conservation to a well designed charter for Forest Destruction.
4) It is worth recollecting that the MoEFCC the presenter of the current Bill had notified the Forest Conservation Amendment Rules in June 2022, which dispensed with the compliance to FRA provisions for settlement of forest rights and free and prior consent of the forest dwelling committees and their Gram Sabha in support of the proposed project, required for issue of forest clearance in respect of the preliminary (1st stage) approval. But, there surfaced fierce resistance to the said Amendment Rules not only by the forest dwelling communities, but also from the Ministry of Tribal Affairs, Govt of India. In the face of such external and internal opposition, the said FC Amendment Rules 2022 has been relegated to a backburner. But, the MoEFCC, GoI which is hell-bent on burying the FRA alive, aims to achieve the same design by piloting the present Bill where the word FRA itself is conspicuously missing from any mention whatsoever.
5) The Bill 2023 and the Statement of Objects and Reasons appended thereto have also omitted to mention another landmark legislation, that is, Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 (briefly called LARR Act) which has mandated inter alia the free and prior consent of the forest dwelling communities and their Gram Sabha as a precondition for alienation of any forest land for acquisition for the Government or non-Govt agencies even for public purposes.
6) The proposed Bill has given a good-bye to historic law called PESA Act 1996 enforceable in the tribal-preponderant Scheduled Areas (as proclaimed under Fifth Schedule to Constitution), which mandates inter alia the consultation with concerned Gram Sabhas and Panchayats to be ensured prior to acquisition of any land of revenue or forest type, in favour of any project proponent. By this ominous omission the proposed Bill seeks to keep the forests and forest resources in the Scheduled Areas out of the access, control and management by the forest dwelling communities and their Gram Sabha. Such a blanket omission of PESA Act shall result not only in erosion of village democracy across the spectrum but also in depletion of forests and forest resources in Scheduled Areas due to lack of community ownership and control over the same.
7) The Bill of 2023, without any rhyme or reason, seeks to remove existing restrictions on de-reservation of forest or use of forest land for non-forest purposes such as for setting up zoos, safaris and eco-tourism facilities; silvicultural operations or for any other purpose to be specified by the central government. Such a proposal, far from being backed by any study, would inevitably lead to massive deforestation by both Govt and private entities, displacement of forest dwelling communities and reckless commercial exploitation by the private and corporate entities.
8) The Bill by proposing that the amended law would not apply to land changed from forest use to non-forest use on or before December 12, 1996 (Date of Godavaran Judgment by Supreme Court), has gone against the apex Court’s dictum which had inter alia said that in addition to the notified forests any vegetation growth if considered ‘forest’ within its dictionary meaning, ought to be covered under the FC Act. As a matter of fact, such an inclusive interpretation of ‘forest’ by the apex court coupled with a similar definition of ‘forest land’ in Section 2(d) of FRA 2006 has gone a long way in conservation and sustainable management of forests during the past years. The Bill’s undermining of Godavaran judgment read with FRA’s definition of forest land is therefore untenable from the conservation perspective of the FC Act 1980.
9) The Bill’s long list of categories of land sought to be exempted from the application of FC Act 1980 would simply exclude vast stretches of forest land along with overthrow of countless forest dwellers inhabiting such forest land since time immemorial. As to such exempted categories, these are forest lands situated within 100 km along the international borders, proposed for construction of strategic linear projects of national importance; forest lands up to 10 hectares, proposed for security related infrastructure; forest lands to be used for setting up camps for paramilitary forces or public utility projects to be specified by Central Government; and forest lands upto five hectares in a left wing extremism affected area for use by the armed personnel for camps and military operations; and forest lands on the side of Railways or Roadways for setting up amenities and communication to nearby habitations. The question arises, with such extensive exemptions allowed to the above categories of forest land, where shall the existing forest communities as inhabiting such lands go and be settled? The Bill by proposing such massive exemptions of forest land from the purview of FC Act 1980 does in fact pave the path for deforestation at an unheard-of scale on one hand and displacement and pauperisation of countless STs and OTFDs already occupying such forest lands on the other.
10) The proposed Bill allows the Central Government to permit any survey of forest land, such as, reconnaissance, prospecting, investigation or exploration including seismic studies, even by a private agency to be treated as a non-forest purpose, and therefore to be exempted from application of Forest Conservation Act 1980. Such a liberal exemption shall open a flood-gate of incursion of private and corporate agencies into any forest area with a view to occupying them for their high-profiteering extractive projects like mining and oil-drilling etc. entailing thereby massive deforestation, destabilisation of forest eco-system and displacement of forest dependent communities.
11) The Bill has armed the Central Government with an unlimited and arbitrary power to declare any activity of any Government or private agency to be covered under non-forest purpose and therefore allowable in a forest area irrespective of any provision of law, be it concerning the Scheduled Areas, Forest Rights Act, LARR Act, PESA Act or laws impacting the state of Environment, Wildlife, Wetland, Mangroves or Water and Air quality.
12) Keeping in view the beneficial findings of Forest Survey 2021 which justify the continuance of exiting policy regime woven around the time tested Forest Conservation Act 1980, the Central Government ought to desist from pursuing the present Bill and instead go for looking into the bureaucratic loopholes plaguing the implementation of Forest Conservation Act and allied legislations like Forest Rights Act, LARR Act and PESA Act.
13) Last but not the least, in deference to the explicit wish of a significant segment of think-tank within and outside the Parliament, the present JPC should, before finalising its findings and recommendations, request the Parliament’s Departmentally related Standing Committee on Science, Technology, Environment, Forest and Climate Change, the forum proper to look into the provisions of the present Bill for the purpose of a parallel study and proffering of its separate recommendations. Such a wholesome step, if taken in right earnest by the JPC shall produce a richer and more holistic corpus of findings and recommendations on the present Bill and enable thereby the Parliament to debate and discuss the entire matter from a more informed and rational perspective.
Chitta Ranjan Behera, Advocate, Cuttack, Mobile- 9437577546
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