Context:
This article is based on the news “Forest (Conservation) Amendment Act 2023: States, UTs must act as per definition in TN Godavarman judgement, says SC ” which was published in the Down To Earth. The Supreme Court, in an interim order, said that ‘’the states and Union territories (UT) must act according to the definition of forest as laid down in the landmark TN Godavarman Thirumalpad v. Union of India judgement issued in 1996.
States Must Follow Definition of Forest Laid Out in 1996 Judgement, Says Supreme Court
- PLI Challenging Amendments to Forest Conservation Act: The Supreme Court court was hearing a public interest litigation challenging the constitutionality of the Forest Conservation Act. The Act was amended by the Union government in 2023.
- Prior Permission of SC: The court also directed that its prior permission will be necessary for Setting up any Zoo or Safari in a forest.
- These are exempted from the definition of forests, according to Section 5 of FCAA 2023.
- Publication of Forest land Records: The Court also directed that a comprehensive land record as per Rule 16 of Van (Sanrakshan Evam Samvardhan) Rules, 2023 should be available on the official website.
- These include within its ambit forest-like areas to be identified by the expert committee, unclassed and community forest lands.
Genesis of Godavarman Judgement:
- On 7 April 1995, a Malayali landowner from the Nilambur Kovilakam clan filed a writ petition in the SC to prevent the felling of timber in a part of the Nilgiris.
- In N. Godavarman Thirumulkpad v Union of India & Others, the Supreme Court defined the word “forest”.
- Before Godarvarman, the definition of the forest was restricted to mean “reserved forests.”
Recognition of Zoo Mentioned in Section 38H of Wildlife Protection Act 1972 |
What Is a Forest?
- According to the 1996 Godavarman Judgement: “forest” would include:
- Any land recorded as “forest” in government records; and
- Any land that satisfied the dictionary definition of forest. (The Oxford Dictionary defines forest as “a large area covered with trees and undergrowth.”)
Amendment To the Forest Conservation Act 2023 (FCAA)
Key Amendments
- Introduction of a preamble to the Forest Conservation Act 2023, reflecting India’s commitment to preserving forests, and biodiversity, and addressing climate change challenges.
The forest conservation architecture in India:
- Idea of “reserved forest”: It was first introduced by the Indian Forests Act of 1878, which divided forests into three categories—Reserved (completely government-controlled), protected (partly government-controlled) and village (controlled by villages).
- The 1878 legislation was later updated in 1927: The 1927 Act continues to be the source of a state government’s power to notify, declare, or record forests as reserved or protected.
- In 1952, the Central Government adopted the National Forest Policy.
- For the first time, one-third(33%) of all land should be brought under forest cover.
- For the hilly and mountainous Regions (In light of special ecological considerations, to prevent soil erosion) : 60 percent of the total land area in these regions must be brought under forest cover.
- Subject of ‘forest’ from the State List to the Concurrent List in 1976.
- It also introduced the protection and safeguarding of forests and wildlife as a DPSP under Article 48A.
- Additionally, protection and improvement of forests was introduced as a Fundamental Duty under article 51A(g).
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- Amending the name of the Act to Van (Sanrakshan Evam Samvardhan) Adhiniyam (translated as Forest Conservation and Augmentation) from the existing Forest Conservation Act.
- Delineates two categories of land under the Act’s jurisdiction:
- (i) land declared/notified as a forest under the Indian Forest Act, 1927 or under any other law, and
- (ii) land not covered in the first category but notified as a forest on or after October 25, 1980, in a government record.
- Exemptions in Certain Kinds of Lands
- In Section 1A(2)(a), for instance, the following kind of land is exempted: “such forest land situated alongside a rail line or a public road maintained by the Government, which provides access to a habitation, or to a rail, and roadside amenity up to a maximum size of 0.10 hectare in each case.
- The Act also exempts all strategic linear projects of “national importance and concerning national security” within 100 km of international borders.
- Expansion of Permitted Activities: It facilitates silvicultural operations, wildlife safaris, and eco-tourism, as specified by the central government.
| Impact & Significance of Godavarman Case 1996:
On Forest Conservation Laws:
- It has prompted a more stringent interpretation and application of the Forest (Conservation) Act, 1980, and the Forest (Conservation) Rules, 1981, aimed at conserving forests and safeguarding wildlife across India.
Enhanced Judicial Involvement in Environmental Governance:
- Established the judiciary’s role as a vigilante in environmental governance & also linked to the developments in the National Green Tribunal.Issued numerous mandates and guidelines to oversee developmental undertakings in forest regions and safeguard the environment.
Protection and Preservation of Forest Lands:
- Extensive forest areas in India have received protection & Preserved India’s diverse biodiversity, with numerous projects to divert forest land for non-forest purposes being cancelled.
Recognition of Rights for Forest Dwellers and Tribal Communities:
- It has emphasised the necessity of acknowledging and safeguarding the rights of forest dwellers and tribal communities reliant on forests for their sustenance.
Establishment of various committees to ensure adherence to its directives:
- It helped in fostering sustainable development within forest conservation initiatives has been brought to the forefront.
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- Streamlining Approval Processes: Previously, state governments needed central government approval to assign forest land to non-government entities. The amendment extends this requirement to all entities, with approvals subject to central government terms and conditions.
- This aims to eliminate ambiguities and expedite decision-making on proposals involving non-forestry use of forest land.
Criticism of Amendment To the Forest Conservation Act 2023
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Changing the Scope of “Forest”
- The Act seeks to redefine ‘forest’ in India, restricting it to officially designated lands.
- This eliminates restrictions on commercial activity on non-designated forest land, impacting areas like the Aravalli and Niyamgiri ranges inhabited by vulnerable tribal groups.
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Exemptions for Linear Infrastructure
- Linear infrastructure projects near national borders may be exempt from forest clearance permissions.
- The lack of clear definitions for “strategic linear projects” raises concerns, particularly in Northeastern states where this exemption could have significant environmental implications.
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Consultation Shortcomings
- Criticism surrounds the lack of alterations recommended by the Joint Parliamentary Committee despite numerous objections from various stakeholders, including tribal groups and environmental activists.
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Jeopardizing Forest Conservation and Indigenous Community
- Despite the Forest Rights Act, indigenous communities’ consent for forest land diversion has dwindled. The proposed amendments prioritise carbon neutrality through fast-growing plantations, limiting the Forest Conservation Act’s scope.
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Centralized Control Concerns
- Centralization of power in the central government raises concerns, particularly regarding exemptions for strategic projects near international borders. States like Nagaland and Sikkim express worry over the potential impact on their territories.
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Human-Animal Conflict:
- The radio collared elephant killed a person when he entered human habitation in Wayanad district. Therefore, It endangers not only forests and wildlife, but also the well-being and livelihoods of forest-dwelling communities.
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By Section Wise Shortcomings :
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- Section 1A(2)(c)(ii): Forest land used for security-related infrastructure excluded from the Act’s purview
- Section 1A(3): Statutory reliance on compensatory afforestation which has a very poor track record in India
- Section 1A(2)(c)(iii): Unrestricted exemption for defence and public utility projects in Left Wing Extremism-affected areas
- Section 2(2): Arbitrarily permitting activities such as survey and exploration in forest.
- Lack of clear definitions for crucial terms.
Way Forward
- Specified Definition of Forest: After assessing the estimates of land under forest a specified definition of forest should be made on the line of kyoto protocol definition which is currently being used for ISFR report.
- Consultative Approach: By taking mutual consent with all stockholders after analyzing all pros & cons of the project
- Preservation with Indigenous Rights: A comprehensive demarcation of boundaries & transition area should be made by recognizing rights of indigenous communities based on Forest Rights Acts 2006 & Forest Conservation Act
- Environment & Social Impact Assessment: Element of Environment & social cost of Project should be in line with forest conservation.
Conclusion
The amendments to the forest conservation Act pushed the ground for diverting more forest land for non-forest activities. It endangers not only forests and wildlife, but also the well-being and livelihoods of forest-dwelling communities. Therefore Current ruling of the Supreme Court on the definition of Forest & Permission for Zoo & Safari Creation is a welcome step.
February 20, 2024
