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Decoding 2023 Amendments In Forest Conservation Act 1980

Decoding 2023 Amendments In Forest Conservation Act 1980

Parliament has passed Forest (Conservation) Amendment Bill 2023, the President’s assent has been granted and the same is notified in the official gazette. Now this is the new law of the land vis a vis forest conservation and is called Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 (VSESA). The only legitimate reservation anyone can have about the change in the name is that it could be construed as pushing Hindi down the throat of non-Hindi speaking India which is a significant nearly 60 % of the population of this country. The implications of VSESA on the state of HP and on the states of IHR are going to be far more significant than the rest of the country and the same is being explained and discussed in this write-up.

Background

To begin with, it is important to know that the word forest was not defined in the erstwhile Forest Conservation Act 1980(FCA). Hon’ble Supreme Court of India in a matter called Godavarman Thirumulkpad v. Union of India & Ors.,(1997) 2 SCC 267, which became over the years due to its implications on forest governance in the country, made FCA applicable to all forests as understood according to the dictionary meaning. Godavarman matter changed the face of forest jurisprudence in this country but now shall be confined to the pages of history with these new amendments kicking in.

Prior to Godavarman, the provisions of the FCA were applied to the notified forest land only. After the Godavarman judgment, FCA was made applicable to revenue forest land or in lands that were recorded as forest in government records and to areas that looked like forest in their dictionary meaning.

The Hon’ble  Supreme Court wanted to protect the forests of this country knowing fully well that in the absence of a legal definition of forest and also in the face of non-completion of forest and land settlement all across the country in its entirety, there were/are several forests which could be outside the purview of law, not recorded as forests but needed protection.

What does VSESA Protect?

VSESA categorially mandates the land to which this Act shall apply. To my mind, this is lazy law-making as no effort has been made to define forest. If a forest could be defined in view of the ground realities, collective historical wisdom and also giving due deference to the Hon’ble SC in Godavarman matter it could have served a real purpose of doing samvardhan (enrichment, nourishment, causing to thrive, furthering, promoting) of forests.

Protection of this law is available only to land that is notified or declared as forest under the Indian Forest Act, 1927, or under any other law for the time being in force or recorded as forests in govt records on or after October 25, 1980, but only if such land has not been changed from forest to non-forest use and if it has been changed to non-forest use on or before December 12, 1996, then this Act shall not apply to such forests also. Forest being a concurrent subject, state governments, if they are interested in protecting the forests within their territorial jurisdiction that do not fall within the ambit of VSESA, can possibly notify these forests under state laws.

Noble ideals of the Preamble of VSESA are not reflected in the new mandate

There is a preamble added to the new law which states that the amendments have been brought in to be able to realize the importance of forests to achieve Net Zero Emission by 2070, to maintain or enhance the forest carbon stocks through ecologically balanced sustainable development, to create carbon sink of additional 2.5-3.0 billion tons of CO2 equivalent by 2030, to bring one third land area under forest and tree cover, to enhance forest-based economic, social and environmental benefits including improving livelihood for forest-dependent communities, to provide for provisions relating to conservation management and facilitating economic needs and carbon neutrality.

All these objectives are noble ideals only if the amendments brought in could enable us to achieve them.

Which Forests Have Denied Protection of VSESA?

Following is the list of categories of land that will not be covered under the provisions of this new Act and therefore will not have the protection of VSESA:

  1. Forest land is situated alongside a rail line or a public road maintained by the govt and provides access to habitation or to a rail and roadside amenity up to a maximum of 0.10 hectares in each case. Why would a blanket exemption be granted especially when it is a known fact that in many cases railway lines and roads pass through thick forest areas?
  2. Tree, tree plantations, or reafforestation are raised on lands that are neither notified forests nor recorded as forest land. If these categories are being exempted then the tree cover and plantation raised on lands other than those mentioned above cannot possibly be counted towards increasing the tree and forest cover of the country.
  3. Such forest land is situated within a distance of 100 km along international borders or Line of Control or Line of Actual Control whatever the case may be if used for construction of a strategic linear project of national important and concerning national security. This exemption not only brings out strategic linear projects of national importance outside of the purview of  VSESA but also projects related to national security. While national security undeniably cannot be compromised to achieve that at a huge, irreparable cost the ecological security of the country is not going to help the country in the long run.  

As per Chat GPT’s rough estimate, the maximum length of Himachal Pradesh from its easternmost point (the eastern border with Uttarakhand) to its westernmost point (the western border with Punjab) is around 370 kilometers. The maximum breadth from its northernmost point (bordering Jammu and Kashmir) to its southernmost point (bordering Haryana) is approximately 240 kilometers. This gives us a fair idea about how this 100 KM from international border provision will impact the forests of the state of HP. All mountain states in IHR have international borders and also bear forests. This provision will hit all of the northeastern states of IHR much harder as some of the states are very small in size resulting in almost all of their forests being denied whatever little protection VSESA now offers.

The Himalayan forests are very important being home to many perennial rivers thus source of water for both mountains and downstream communities for human consumption, agriculture, and industry and they also provide invaluable ecosystem services.  These forests capture essential atmospheric moisture mainly in the form of snow, to regulate river flow, and reduce erosion and sedimentation downstream. Good forest cover therefore in Himalayan states is central to maintaining ecological balance and environmental stability as it also prevents soil erosion and land degradation.

As per IFSR 2021, Total forest cover in the Northeastern region is  64.66% of its geographical area which is less than 67% as recommended by the National Forest Policy (1988) for the hills. The current assessment shows a decrease of forest cover to the extent of 1,020 sq. km (0.60%) in the region as compared to 2019 and it has been showing a decline in successive surveys over the years. The states from the Northeastern region of the country have the highest percentage of forest cover w.r.t. total geographical area of the state and also has a big proportion of very dense and medium dense forest as is evident from the table below:

State/UTThe forest as % of the total georgical areaVery dense (with 70% of canopy density)Medium dense forest (canopy density of 40-70%)
Mizoram84.53%0.74%27.11%
Arunachal Pradesh79.33%25.15%36.03%
Meghalaya76.00%2.50%40.84%
Manipur74.34%4.05%27.90%
Nagaland73.90%7.6726.84%
Assam36.09%3.85%,12.74%
Sikkim47.08%15.53%,21.86
Tripura76.34%,6.17%.49.70
HP27.73%,
Uttrakhand45.44 %,
J&K39.15%
Ladakh1.35%

Moreover, the Forest Survey of India(FSI) has undertaken a collaborative study with BITS Pilani (Goa Campus) to map climate hotspots in the forest areas of the country. The aim of the study was to have an enhanced understanding of the climate change hotspot areas in Indian forests which would assist in planning and strategizing preventive and adaptive measures against changing climate. One of the major outcomes of the study by analyzing all the scenarios in the studied periods i.e. 2030, 2050, and 2085 has been that Ladakh, Jammu-Kashmir, Himachal Pradesh, and Uttarakhand will witness the Highest Temperature IncreaseThe region of northeast and the western Himalayan region will also witness the highest variability in rainfall. IHR is home to climate hotspots in forest areas that need preventive and adaptive measures instead of taking them out of the purview of the protection of VSESA.

These exemptions can prove to be disastrous for the ecological security and integrity of the country. We need to balance the imperatives of the national security of the country with the imperatives of its ecological security.

  1. land measuring up to ten hectares which is proposed to be used for the construction of security-related infrastructure. Or land measuring up to five hectares in the left-wing extremism-affected areas or as may be notified by the central govt, which is proposed to be used for the construction of defense-related projects or a camp for paramilitary forces or public utility projects.

All these exemptions are made subject to such terms and conditions including conditions of planting of trees to compensate for felling of trees undertaken on the lands as the central govt may by guidelines specify.

Instead of blanket exemptions, all these projects could have been put on a fast-track mode for forest clearance within the existing system by ensuring that urgent sensitive security projects are processed in a time-bound manner.

Activities that do not need Clearance under VSESA inside Notified and Recorded forests 

The most unfortunate part of this new regime would be the activities that can be undertaken within the forests to which VSESA applies without having to take any forest clearance. The following activities are not considered non-forest activities anymore:

(i) Silvicultural operations including regeneration operations

(ii) Establishment of check-posts and infrastructure for the front-line forest staff

(iii) Establishment and maintenance of fire lines

(iv) Wireless communications

(v) Construction of fencing, boundary marks or pillars, bridges, and culverts, check dams, waterholes, trenches, and pipelines

(vi) Establishment of zoos and safaris referred to in the Wild Life (Protection) Act, 1972, owned by the Government or any authority, in forest areas other than protected areas

(vii) Eco-tourism facilities included in the Forest Working Plan Wildlife Management Plan Tiger Conservation Plan or Working Scheme of that area

(viii) Any other like purposes, which the Central Government may, by order, specify.”

The underlined clauses above are going to be detrimental to the protection and preservation of the forests. The amplitude of the last clause specifically is indeterminate and would be a major source of worry as it gives a free hand to the central government. The removal of checks and balances for using forests for non-forest purposes from more and more activities would sound the death knell of the forests in the country. Now any survey i.e. reconnaissance, prospecting, investigation, or exploration including seismic survey shall also not require any forest clearance though they will be subject to terms and conditions specified by the central government.

VSESA gives Overriding Powers to the Central Govt to Give Directions 

Section 3C has been added to the principle Act which gives the central govt overriding powers of issuing directions to basically anyone concerned with the administration of the conservation of forests in the country. This to my mind is the most damaging provision that makes the central government’s will supreme in the matters of forest protection and conservation and eats into the autonomy of the forest advisory committee as the same can be given any directions by the govt which could also be vis a vis discharge of their functions.

Conclusions

After going through the amendments clause by clause it can be safely said that VSESA despite still being the only important Central statute for the conservation of forests in the country and despite lofty ideals articulated in its preamble seems to fall awfully short on all aspects.

By changing the applicability criteria the protection is now accorded to only notified and recorded forests and not as was mandated by the Hon’ble Supreme Court in Godavarman matter.  Use of forest land for non-forest purposes is now more relaxed as many more activities have been added to the list that are not considered non-forestry and on top of that the Central Government has also kept a discretionary power to declare any activity as non-forestry by passing an order in this regard. Large-scale exemptions granted to projects related to defense and national security and to plantations and reafforestation not done in notified forests or recorded forests would also go a long way in making our forests more vulnerable and open to indiscriminate exploitation. The worst hit is going to be the forest-bearing states in the IHR.

The article originally appeared on Hill Post and was authored/co-authored by one of FELPRs team member.