A Proposal To Deregulate Forest Governance

Although all the proposals in the consultation paper are problematic, the most problematic aspect is the manner and form in which the proposed amendments have been released by the Ministry to seek comments and objections. Couched as a policy document highlighting the problems faced in the governance of Indian forests along with purported solutions as seen fit by the Ministry, the 'consultation paper' does not contain any formulations of the proposed amendments. Absence of formulated proposed amendments is an abdication of legislative duty on the part of the Ministry. As lawyers we know that this detail is vital, as translation of such consultation points into formulated amendments may not only be different, but also dangerously so.

A Tool For Exemption

Similar to the Draft Environment Impact Assessment Notification, 2020 released by the Ministry for comments last year, the primary motto of this consultation paper appears to be to exempt large chunks of forests from the statutory mandate of obtaining prior forest clearance from the Central Government. The proposed exemptions range from exclusion of private forests, to forested-land by acquired the government ministries such as Ministry of Railways and Roadways, to security projects on forest land at international border areas, and a host of other similar exemptions for 'environment-friendly' technologies, and establishment of zoos, safaris and forest training infrastructure.^[1]

Attempts for such exemptions for overarching coverage of the FCA is nothing new. The Central Government has, on numerous occasions and through different methods tried seeking exemptions for a variety of such activities, only to have its efforts struck down by different courts.

For instance, an application was filed some years ago in T. N. Godavarman v. Union of India^[2] before the Supreme Court of India for exemption of military and defense roads in border areas from the mandate of FCA. The court was not inclined to allow such omnibus permission. Similarly, the High Court of Andhra Pradesh in Samatha v. Union of India struck down a circular issued by the Ministry granting exemption to 'linear projects' in forest areas on the basis of objections filed by the Ministry of Tribal Affairs.

Opening Of Forests For Private Individuals And Entities

Efforts by the Ministry to open forests to private corporate interests have been rebuffed in the court of public opinion. And the present consultation paper revives these efforts, albeit in a new form. FCA, as it stands now, allows a host of forest activities to operate in forest areas without prior clearance from the Central Government. These are considered by law not to be 'non-forest activities' and include activities ancillary to conservation, development and management of forest and wildlife; the establishment of check-posts, fire lines, wireless communications, construction of fencing, bridges and culverts, dams waterholes, trench marks, boundary marks, pipelines and other like purposes.^[4] However, Section 2(iii) mandates that any lease to a private person or entity, even for such 'forest purpose' requires a prior forest clearance from the Central Government. The consultation paper proposes the deletion of Section 2(iii) of FCA^[5] on the ground that this will make the process more robust. However, it's important to lift the veil of words that disguises its true intent. Deletion of this sub section will remove the mandate to obtain prior clearance before leasing of forest land to private individuals and entities.

This move flies in the face of the National Forest Policy 1988 which categorically prohibits entry of private players in forest governance. The Ministry has made continuous attempts to do away with the bar put in place by the 1988 policy. These attempts have been made at regular intervals over the past few years. For instance, the attempted introduction of Public Private Partnerships model in 2015 to the Indian forests, proposed amendments to the National Forest Policy in 2016 and 2018, and more recently proposed amendments to the Indian Forest Act in 2019. The present consultation paper is another step in the same direction, i.e. towards the privatization of forests, and can have dangerous implications.

Assumption Of Homogeneity Of Forest Land

The Ministry's consultation paper fails to acknowledge that there is a concentration of forest areas in the Fifth and Sixth Schedule Areas which are primarily inhabited by tribals, and have a special constitutional status by dint of being tribal homelands. Article 244(1) of the Constitution of India provides that the administration and control of the Scheduled Areas and Scheduled Tribes has to be done in accordance with Fifth and Sixth Schedules. It establishes that the governance and regulation of the land and resource rights of Scheduled Tribes in the Scheduled Areas should follow a unique structure in order to protect the interests of tribals with regard to land alienation, governance and other social factors. In furtherance of these obligations, many states have adopted statutes which prevent alienation of land owned by tribals to non-tribals. Numerous judicial precedents protect the special status of the forests in these areas. For example, diversion of forest lands to private entities in Scheduled Areas has been proscribed by the Supreme Court.

If a central statute such as FCA removes the mandate of prior forest approval from the Central Government by exempting the operation of FCA in a host of scenarios, the state legislations preventing alienation of tribal lands will become a dead letter. Rather than safeguarding the rights and entitlements of Adivasi communities, the consultation paper paves the way for accelerated exploitation of resources and entry of private capital in tribal homelands, contrary to the constitutional mandate.

Sidelining Of The Forest Rights Act, 2006

Exemption from obtaining prior approval of Central Government for use of forest-land for certain non-forest purposes will also exempt the concerned activities from obtaining Gram Sabha consent as per Rule 6(3)(e) of the Forest Conservation Rules, 2003. The Ministry has neither mentioned the mandate of the consent process nor the impact of such deregulation on the Adivasis and forest-dwelling communities in its consultation paper. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act) brought a paradigm shift in forest governance and forest rights recognition in Indian forests. The decision-making process of the Gram Sabha under FCA has been given utmost importance by the Supreme Court of India in Orissa Mining Corporation v. The Ministry of Environment and Forests^[7]. This decision has been widely applied in court orders, executive instructions and state-level laws. It has also become interwoven into the warp and weft of how Gram Sabhas of Adivasi and forest dwelling communities perceive their roles in local self-governance.

By invisibilising one of the most important components of modern forest governance – the Gram Sabha - while proposing to grant a host of exemptions from the operation of FCA and enable privatisation of forests; the consultation paper on the proposed amendments to FCA circulated by the Ministry is misplaced and out of touch with the 21^st century. It is inexplicable that the Ministry that bears a titular duty to mitigate climate change, and is preparing to represent India at COP 26 United Nations Climate Change Conference in Glasgow from 31^st October 2021, has proposed a veritable demolition of India's Forest 'Conservation' law in a parallel process.

The author is an environmental lawyer practising at Delhi. Views are personal.