Pernicious changes

With the aim to recognise India's global obligations and its domestic goal of attaining Net Zero emissions by 2070 through the preservation and augmentation of forest carbon reserves, additionally to meet India's Nationally Determined Contribution by establishing a carbon absorption capacity of approximately 2.5 to 3.0 billion tons of CO2 equivalent by 2030, and to expand India’s forest and tree coverage to encompass one-third of the nation's land area, the Parliament had brought amendment to the Forest (Conservation) Act, 1980, giving a new definition to “forest land” and renaming it as Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980. The situation that existed before the passing of the FCA was that the states were too liberal in granting permission to the use of forest land for the non-forest purposes, especially for cultivation. But, with the 42nd Constitutional Amendment, the Parliament has curbed the wholesome legislative power of the States in relation to the forests, and transferred the subject “forest” to the concurrent list, which has led to the culmination of the FCA requiring the states to have a prior sanction of the Central Government before diverting forests for non-forest activities.

The purpose of this article is to: firstly, understand the term “forest land”, secondly, find out how the amendment act goes against the preamble of the act itself, and thirdly, understand how the amendment act vitiates Supreme Court’s ruling in Niyamgiri Case, and takes away the protection granted to forests under Forest Rights Act, 2006.

Forest land

It is worthwhile to mention that the term forest, as per the FCA, meant that area which found its place in the revenue record of the government. However, the Supreme Court in T.N. Godavarman has whittled away the narrow and pedantic approach given to “forest land”, and rather added the wider connotation to it by bringing forest land within the purview based on the dictionary meaning, irrespective of ownership. Nonetheless, the 2023 amendment i.e., VSESA, offers a significantly more restricted definition of "forest land" by introducing Section 1A, which includes only two categories of land: land officially designated or announced as forest under the Indian Forest Act, 1927, or other relevant regulations, and land documented in government records on or after October 25, 1980. Consequently, the new provision contradicts the SC’s Godavarman ruling as it exempts those forest land converted for non-forest purpose before the Godavarman judgment, thereby by default declining any protection to the 28 per cent of the India’s Forest Land lying outside the Recorded Forest Areas (RFA).

Amendments with unclear objectives

The Act commences with a preamble advocating a pro-environment stance, but it includes a series of exemptions that dilute the current regulations concerning forest diversion. These exceptions apply to forest areas located adjacent to a government-maintained railway line or public road, especially for the development of nationally significant projects with implications for national security. Additionally, they pertain to the construction of security-related infrastructure, defense projects, paramilitary force camps, and projects related to public utilities. The Act also allows for the liberal allocation of forested land for non-forestry purposes, including the installation of wireless communication systems, the construction of fences, boundary markers, bridges, culverts, check dams, waterholes, trenches, and pipelines, as well as the establishment of zoos, safaris, and eco-tourism facilities, among other activities. Amongst all such exemptions, the exemptions for linear projects provide a carte-blanche not only to the military but to the government, as it can classify virtually anything as "strategic" or of "national significance." The issue has a greater ramification in the north-eastern states where exemption would cover almost the entire region. Therefore, states such as Nagaland and Tripura demanded to make the area of exemption to be flexible in terms of the land area of the states. Additionally, the amendment lacks clarity regarding its intentions concerning compensatory afforestation as a means to combat climate change or boost carbon storage while permitting the conversion of natural forest land for non-forestry purposes. It also fails to address the potential consequences such as biodiversity loss, ecological disruption, or harm to wildlife resulting from the clearance of forested areas.

VSESA bypasses Niyamgiri judgment

The amendment does not indicate its approach to ensuring the livelihoods of communities dependent on forests, without even acknowledging the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act), 2006 (“FRA”), designed to safeguard the rights of scheduled tribes and other forest-dependent communities by vesting rights over forest to such tribes and communities. The VSESA appears to take away the power of the forest dwelling communities to pass a resolution through the Gram Sabha to undertake diversion of any forest land for non-forest use, as provided by FRA. Section 6 of the FRA stipulates that the Gram Sabha's decision is transmitted to the Sub-divisional level committee, then to the District level committee, and oversight is carried out by a State Level Monitoring Committee. Moreover, in the 2013 Niyamgiri case, the Supreme Court upheld the community's entitlement to participate, leading to the cancellation of the Vedanta bauxite mining project, as one village after another declined consent for diversion. Consequently, it can be inferred that the 2006 Act establishes an equilibrium between safeguarding forest rights and preserving the rights of forest-dwelling communities, albeit through a detailed process that necessitates approval from multiple authorities.

Conclusion

Although matters of national significance and security are undeniably vital and non-negotiable, there are also other legitimate concerns that warrant attention. For instance, providing a blanket exemption for forest land within 100 km of the international border may severely impact the extensive forest cover. This is due to the lack of objective clarity regarding what constitutes matters involving national interests, which, in turn, tends to divert forest land to non-forest use under the guise of strategic and national importance. Thus, the removal of the "deemed forest," as determined by the Supreme Court in Godavarman, from the purview of the Amendment Act, without undertaking an exercise to determine the forested area, would undermine the objectives of the Act and may lead to ecological imbalances and a loss of habitat for various living beings.

The writer is Advocate and Assistant Professor (Law) at ITM University, Gwalior. Views expressed are personal