Move to amend forest law raises concerns

The Ministry of Environment, Forest & Climate Change (MoEFCC) has released a public consultation paper on 2^nd October 2021 inviting comments on the proposed amendments to the Forest Conservation Act, 1980 (FCA).  Vidhi Centre for Legal Policy has reviewed the consultation paper and submitted its comments to the MoEFCC on 27^th October 2021. 

FCA is not applicable to any land bearing vegetation

However, the consultation paper and proposed amendments fall short on a number of counts. Most importantly, the consultation paper is premised on an incorrect interpretation of T.N. Godavarman Thirumulpad v. Union of India. It has been settled by the Supreme Court, High Court and the National Green Tribunal that any plantation or forest-like land not notified or recorded as forests in government records will not attract provisions of Section 2 of the FCA, and yet, the consultation paper asserts that the scope of the applicability of FCA extends to all areas which conform to the ‘dictionary’ meaning of ‘forest’.

Some of the proposed exemptions digress from the National Forest Policy, 1988 and the constitutional mandate of the State to preserve and protect forest and wildlife. It is proposed by the MoEFCC to provide exemptions from prior government approval (under FCA) for lands acquired before 1980, when the FCA first came into existence. We believe that this will significantly dilute the Godavarman decision as it will exclude large amounts of land that may have otherwise been deemed or notified as forests.

In order to bring clarity to the applicability of Section 2 of the FCA in consonance with various judgments of the SC, an office memorandum/circular may be issued to state governments stating that the provisions of FCA will apply to only such areas which are: 1) Statutorily notified forests under the Indian Forest Act, 1927 or State Forest Acts; 2) Land recorded as forest in the government record; 3) Identified as forests by the expert committees constituted by States subsequent to the SC direction dated 12.12.1996 in the Godavarman case.

Exemption of lands acquired before 25.10.1980 from the purview of FCA must be avoided

The MoEFCC is considering exemption from prior government approval for the lands which were acquired before 1980, when the FCA first came into existence, noting that it has caused resentment in public sector bodies for interpretation of the scope of applicability of the Act over the right of way of railways, highways, etc. The consultation paper mentions that part of such acquired lands was left unused and planted with trees under various government schemes and some of them were notified as protected forests.

The purpose of the FCA is to check indiscriminate clearing of forests and not to prohibit any developmental activity. Exemptions from the requirement of FCA are not recommended to any recorded or notified forest area as those amount to a significant dilution of the original purpose of the Act.

In order to avoid conflicts or misuse of the FCA for plantations raised on non-forest lands in the future, States may be requested to publish a district-wise georeferenced map of all notified and recorded forests. It may be pertinent to note that the SC direction to state governments to identify forests was a one-time exercise, reiterating that private lands where vegetation and trees spontaneously generate are not forests.

Some additional concerns are summarized below:

The full submission can be accessed at the Vidhi Centre for Legal Policy here