India’s Forest (Conservation) Amendment Bill: Undermining Forest Dwellers’ Rights

by | Jun 13, 2023

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About Abhishek Rath

Abhishek Rath is an undergraduate student at National Law University Odisha, India. His areas of interest include the intersection of law and society, human rights and constitutional law and analytical jurisprudence.

On 30 March 2023, the Forest (Conservation) Amendment Bill, 2023 was introduced in the Lok Sabha, India’s lower house of Parliament, and later referred to a Joint Committee of Parliament for scrutiny and deliberation. The Amendment Bill seeks to bring several fundamental and far-reaching changes in the Forest (Conservation) Act, 1980 (FCA) that are likely to adversely affect the rights of forest dwelling communities.

Several indigenous populations have been inhabiting India’s forests for generations. Their ways of life are intertwined with the forest ecosystems and some of them depend almost exclusively on forest resources for subsistence. The Forest Rights Act, 2006 (FRA) recognises the traditional rights of Scheduled Tribes (ST) and Other Traditional Forest Dwellers (OTFD) over the forests they inhabit. The FRA incorporates a participatory forest conservation model, recognising forest dwellers as important stakeholders.

Before allowing any use of forest land for non-forest purposes, State Governments have to obtain permission from the Central Government, according to Section 2 of the FCA. To make the latter consistent with the FRA, a set of rules had made it mandatory – in the process of seeking clearances – to obtain consent from the Gram Sabhas (village assemblies) of villages falling within the land to be utilised. However, changes to the rules in 2022 dispensed with this requirement. The Amendment Bill further relaxes the protections by changing the very definition of forest land. In its Godavarman judgment, the Indian Supreme Court had stated that the word ‘forest’ had to be understood in terms of its dictionary meaning, which meant that the FCA had to apply, as well as to notified forests, to all lands recorded as forests by the government, irrespective of ownership. The Amendment Bill, however, limits the application of the FCA to notified forests and only to those lands which have been recorded as forests on or after 25 October 1980, thereby excluding a significant proportion of forests recorded earlier than the cut-off date. This alteration will enable developers seeking to exploit forest land falling outside of this narrow definition, to bypass the clearance process entirely, leaving forest dwellers in the lurch.

Further, the Amendment Bill specifies a list of land categories as exceptions to the definition of ‘forest’. These include forest land situated within a distance of 100 km along international borders and land meant to be used for construction of “security related infrastructure” or “defence related projects”. These vague terms have excessively wide purviews, and can easily be used as excuses by the government to clear forests and evict their inhabitants. Border-adjoining forested areas in the North Eastern states, which are home to numerous tribes, are rendered particularly vulnerable.

Another important change put forth by the Amendment Bill concerns the list of exceptions to activities covered under ‘non-forest purpose’ in the Explanation to Section 2 of the FCA. The addition of silvicultural (forest management) operations to the list is intended to promote reafforestation efforts in forest areas. The FCA originally mandated that compensatory afforestation, to be carried out by developers intending to divert forest land, had to be carried out on non-forest or degraded forest land of at least equal area. The Amendment Bill, however following in the footsteps of the 2022 rules, will now pave the way for such afforestation on forest land too. This raises fears of monocultural plantations replacing old-growth forest ecosystems, on whose produce forest dwelling communities have traditionally depended. India’s compensatory afforestation campaign was already controversial owing to FRA violations and procedural irregularities in multiple states. The new regime will further worsen the situation.

Other exemptions provided by the Amendment Bill include the establishment of zoos, safaris and eco-tourism facilities. Aside from the fallacy of considering such activities as being relevant to forest conservation, these provisions signify the government’s readiness to prioritise business interests over forest rights. Lastly, the Amendment Bill also grants an undue degree of discretion to the Central Government by empowering it to specify any “like purpose” as an exception. In Orissa Mining Corporation v. Ministry of Environment and Forest, the Supreme Court had acknowledged communitarian participation as an indispensable element of forest conservation. It had also observed that the right to life of forest dwelling communities depended on their right to forests. Through its disregard for the interests of forest dwelling communities, the Amendment Bill militates against these principles.

Want to learn more?

Read: Eviction of forest-dwellers in Jammu and Kashmir: Procedural haemorrhage and rights violation

Read: The Dilution of Environment Impact Assessment Norms in India

Listen: When Human Rights Are Not Enough: Defending the Rights of Nature (with Mari Margil)

Listen: Seeking Environmental Justice: Coal, Campaigns and Climate Change (with Nick Stump)

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