Forest Conservation Amendment Bill 2023 (FCAB) reiterates India's commitment towards realising ‘Net Zero Emission’ by 2070

Law is the primary instrument for the implementation of policy. The Forest Conservation Act 1980 (FCA) amendment was enacted for regulating the diversion of forest land for non-forestry purposes. The skillfully drafted preamble of Forest Conservation Amendment Bill 2023 (FCAB)once again reiterates India's commitment towards realizing the national targets of Net Zero Emission by 2070; maintenance and enhancement of forest carbon stocks through ecologically balanced sustainable development; Nationally Determined Contribution target of creating carbon sink of additional 2.5 to 3 billion tons of CO2 equivalent by 2030; increase in the forest and tree cover to one-third of its land area with an enhanced growth trajectory; maintaining country’s important tradition of preserving forests and their bio-diversity; and enhancing forest-based economic, social and environmental benefits including livelihoods of forest-dependent communities. The preamble also indicates the need for provisions relating to the conservation, management and restoration of forests, maintenance of ecological security, carbon neutrality, etc. It does make a pious reading and a great impression.

Succinctly and surely, the preamble sums up the Government’s intentions and the purpose of FCAB. When one starts giving a closer look at the provisions expected to serve the preamble’s key contents, one notices that what they leave out is much more than what they cover. In this context, it also becomes imperative to look for the effect of FCA.FCA managed to reduce the diversion of forest in just a few decades from 1.43 lac ha to 15000 ha annually. At the same breadth, one may like to add that FCA fostered seething discontentment among a class of influential political and social circle of resourced human civilized class, who believed in the quick development of non-resilient eco-fragile infrastructures and who further believed in resource-hungry neoliberalism. The FCA, in its core spirit, notwithstanding some implementation issues increasing with time, attempted to serve public good and environmental sustainability, particularly in the face of climate change impacting all walks of life.

Examining from the above perspective, one finds that because FCAB is restricting the categories of forest land covered by the FCA and also simultaneously exempting, through an express provision, certain other forest lands from its coverage; huge stretches of forest lands of the country go out of the regulatory system prevalent for permitting non-forestry use of forest lands. For example, huge chunks of the proposed Reserve Forest areas (under Section 4 of the Indian Forest Act 1927) and many areas critical for the integrity of ecosystems and biodiversity including the life and livelihoods of local communities become vulnerable to land-use change. Examples of such lands left out are sacred groves, unclassed forests, zudpi jungle, paisari lands, oran lands, gairans or gochars, etc. and the related provisions clearly militate against the twin objectives of creating carbon sink and increasing forest and tree cover using the instrument of FCAB. With the growing population, expanding economy, and impacts of unsustainable practices and climate change; whether the remainder can fulfill the eco-services needs of the country is anybody’s guess.

While it is apparent that the inclusion of Clause 1A (1)(b) is, prima facie, an attempt to undo the order dated 12.12.1996 of the Supreme Court of India in T.N Godavarman vs Union of India that had brought control on mindless diversion of many ecologically important areas, the proposed relaxation for many areas including the largest chunk of 100 km strip all along the international boundary of the country is worth examining.

Out of a total of 37 river basins in the country, those appurtenants to the international boundary is two in the north, one in the northeast, ten on the east coast side, and seventeen on the west and northwest. Studies have found that vegetation cover is the most important parameter for their ecosystem resilience. Currently, with 60% forest cover in its basin, only the Brahmaputra among the above is found to be highly resilient.

A study of the response of river basin systems to water stress has revealed that only six basins of India are climate change resilient. The assessment of Gross Domestic Climate Risk conducted by the Cross Dependency Initiative (XDI) considering vulnerability from eight climate change events has found that most of our border states fall within the 100 high-risk areas of the world. Needless to say, the concerned areas are required to be restored, managed and conserved, rather than opened up for easy diversion.

Any further loss of vegetative cover will impact water availability, agricultural production, and their overall contribution to the economy that nurtures people’s lives. One must also realize that allowing diversion without following a robust process fails to address ground-level issues and leaves wounded susceptibilities so far as locals are concerned. Water and agricultural security for the populations in our border, as well as other areas mentioned in the exemption-related clause, being a matter of serious concern, the proposal to ease the diversion of forest lands deserves reconsideration.

A snapshot of the field situation in regard to compensatory afforestation in lieu of the diverted forest area is revealed by the CAG report no. 21 of 2013. It shows that a total of 1,14,877.26 ha. Forest land was diverted in the country during 2006 -12 whereas non-forest land received in exchange (Odisha did not provide data and Jharkhand’s data post-2002) was just 23,246.80 ha. The issue of site quality of the non-forest land offered for 'compensating the losses due to diversion' notwithstanding, it’s a fact that compensatory afforestation is often taken up on forest land itself due to a generously issued 'non-availability of non-forest land certificate' by the collectors. Quite recently also earmarking of non-forest land in Haryana and Madhya Pradesh in lieu of forest land diverted in Great Nicobar raises questions on the philosophy of ‘compensating’ ecological losses. In such a situation, the efficacy of the principle of ‘ease of doing business’ for achieving the mandated objectives of FCAB appears questionable.

The experience gained in the case of blanket exemption given to recognition of rights under the Forest Rights Act 2006 (FRA) provides some insights. In the absence of a clearance system under FCA, forest land virtually lost its status. With no penalty clause, section 3(2) of FRA is manipulated to fit in ineligible cases and FCA is skillfully circumvented. In the last 15 years, a total of 18.5 lakh hectares of forest land stands diverted for self-cultivation and habitation. They exist in 22 lakh mostly un-demarcated patches, ever ready to get multiplied and expanded. Recently Maharashtra recognized 33,154 such pockmarks in the 15th year of implementation.

The history of exemptions and bourgeoning applicant-specific guidelines must make us wiser. The handling of exceptions and provisions of discretionary powers sprinkled in the FCAB, in addition to the newly inserted Section 3C, needs a professionally oriented and much stronger forest bureaucracy since unwanted relaxations will be to the peril of integrity of our ecosystems.

We, as part of the comity of nations, have entered a point in time when the Doctrine of Non-Regression of Environmental Laws (that they must not be diluted in any manner) should reign supreme. Accordingly, provisions of FCAB be modified to align with its preamble and strengthen the FCA. An efficient institutional framework can improve its implementation. Various ministries, agencies, and people seeking clearances should, in accordance with Articles 48(A) and 51A (g) of the Constitution, support the forestry sector in maintaining the ecological security of the country. An approach focusing on the sustenance of cultural and traditional values in the background of India’s traditional reverence for forests will go a long way to support conservation and sustainability. The task is not too big considering the need for and importance of securing a better ecological future for our country.

(The writers are former IFS officers)