National security and climatic changes

 Assessing the Amendments in Forest Conservation Act 1980

By: Dr VK Bahuguna

(The writer is former IFS officer and was the Director-General in the Ministry of Environment, Forest and Climate Change, Government of India)

The Parliament during the just concluded Monsoon session had passed the Forest (Conservation) Amendment Bill 2023 to pave way for modification of its regulatory regime in conservation of forest resources in the country based on the experience gained during last forty years or so of existence of Forest Conservation Act 1980. The beauty of the Forest Conservation Act is it is not a prohibitory Act but is a regulatory mechanism for the use of forest lands for the non-forest purposes. According to an estimate since 1980 in the last 42 years around 10 lakh hectares of government forest land had been diverted for developmental, the annual rate of diversion since 1950 was 1.5 lakh hectares with a total of 4.5 million hectares of forests were diverted for agriculture and other non-forestry use. In the field of environmental conservation it is regarded as one of the best and briefest legal framework in the world which made tremendous impact on conserving life sustaining resources like water, agriculture and medicinal plant bio-diversity. It has also contributed in sustaining the livelihood of the forest dependent rural poor and tribal people as it curtailed the rampant diversion of forests.

If we see the genesis of enactment of this Act the Central Government throughout in the seventies have been helplessly witnessing rampant de-reservation of reserved forests for developmental purposes by the State governments and particularly just before the elections Chief Ministers used to announce in State assemblies/in public to regularize the encroachments on forests. It promoted encroachments. In the aftermath of ‘Chipko movement in Uttarakhand Himalayas’; First the then Inspector-General of Forests (IGFs) had been continuously writing to the State Chief Secretaries, Forest Secretaries and Chief Conservators of Forests requesting them to stop such de-reservation of forestlands. After this did not make any impact the then Prime Minister Mrs Indira Gandhi in her series of letters to the State Chief Ministers requesting to stop such diversion of the forests in the national interests but these letters were of no avail. The subject of Forests and Wildlife was transferred from State list to Concurrent list through the 42nd Constitution Amendment Bill.  So after lot of discussions Forest Conservation ordinance was promulgated by the government of India in October 1980 and the Parliament enacted the Forest (Conservation) Act 1980 in December 1980. Thus enactment changed the way forests are managed in the country.

However, ever since the enactment of this Act in 1980 many activists and social workers and development lobbies specially mining and hydro-power industry had always blamed this Act for preventing the development regimes. Some of the issues like providing basic facilities like schools, dispensaries, and anganwadi centres, electricity and water pipelines to villages,’ issues of disputed settlement claims of tribals, linear strips declared as protected forests after tree planting along the canals, railway lines, state and national high ways and some defence related projects near international borders have been constantly raised by the States. I have the first hand experience of this as Inspector-General of Forests in the Ministry of Environment, Forests and Climate Change. In the year 2002 the government of India delegated the powers of diversion up to 2 ha to the States for meeting the public utility related projects like schools, check posts etc. Then in 2006 came the Forest Right Act enacted by the UPA government to carry forward the NDA government’s 5^th February 2004 notification in which a road map was created for settlement of disputed claims on forestland occupied by the tribals by converting it into an Act. The proponents of the Forest Right Acts have been the most vociferous critics of forest conservation Act 1980. However, paradoxically today the same people are vociferously opposing the Forest (Conservation) Amendment Act 2023. The Forest Right Act 2006 was enacted to correct the historical injustice to tribals, it is now that even after more than 17 years of its enactment the issue remains unsolved and now ‘political brinkmanship’ has taken centre stage in many states like in Madhya Pradesh where assembly elections are due as large number of encroachments are occurring on forests threatening the community livelihoods of the tribal people in many ways. It is also a fact that when the Forest Rights Act was enacted its aim was more on Community right but more and more individual rights are being claimed. I have been as a firm believer in tribal well being and would see mainstreaming them, had always been arguing with the supporters of this Act and writings in social media that a last date of the application should be fixed so that there is no opportunity for further encroachments on forest land. I have also been demanding that forest department in relation to management of community rights should treat tribals as part of forest ecosystem and treat their livelihood like carrying out silvicultural operations for trees.

Now let us analyse the scope of changes brought by this 2023 Amendments in FC Act. First, it takes out from its purview all those forests lands diverted for non forestry use on or before 12^th December 1996 after the Supreme Court order in the Godavaram case. It will help the States and user agencies to change the land use further in public interests without seeking approval of the government of India. Second, it has further taken out i) the private lands on which afforestation has been done; ii) forest lands situated alongside a rail line or public road maintained by the government  and providing access to a habitation, or to a rail and roadside amenity up to a maximum size of 0.10 hectares in each case; such forest lands situated within a distance of 100 kilometres along the international borders for construction of linear projects like roads etc relating to national security; it has further allowed up to 10 hectares for construction of security related infrastructure and in case of left wing extremist affected areas it is restricted to 5 hectares. For this to be implemented the Ministry will issue specific operational guidelines. However, many people are arguing that especially in the North-East entire State will come in the 100 km radius and they feel it will open a Pandora’s Box for use of forest land and threaten livelihood. They argue that in any case no Sate was opposing release for forests for defence related activities but there are instances this writer has seen in one such cases the Border roads was denied  by one Chief Minister on the ground of damage to a National Park for a long time. Third, which caused lot of ruffled feathers among the activists relates to amending the section 2 of the principal Act. It replaced words with regards to leasing out forest land to private people or body in section 2(iii) “not owned, managed or controlled by Government”. The words” subject to such terms and conditions, as the Central government may, by order, specify” has been replaced. Fourth, it has expanded the list of activities in sub section (ii) ancillary to conservation by including establishment of Zoos and Safaris, Eco-tourism activities etc. Fifth, it empowers the government to specify the terms and conditions as subject to which any reconnaissance survey; prospecting, investigation or exploration shall not be treated as non-forest purpose.

It is clear from above that there should be no issue on first two categories of changes as described above as there was a long standing demand to rationalise the applicability of the Act for better appreciation of regulatory regime on private lands and along the rail or roads except that 100 km area from the international borders is too large an area for the small states like in North East where tribal people fear loss of their livelihoods. Ministry while issuing the guidelines as per the new 3C section should restrict the area to less than 50 km and up to 2 hectares initially so that local livelihood is no affected. There should not be any problem with third, fourth and fifth points as it is just an explanation and expansion of existing provisions. However, the Ministry must keep a very strict watch as States like in Orissa have soon after Gazette notification on 4^th August just issued an order to Collectors on deemed forests contrary to the assurance of Minister Mr Bhupender Yadav while replying to debate in Parliament. After all the proof of pudding is in its eating and this Act is no exception.