Sunday, January 11, 2015

04 Forest conservation clearances in India-I. Features of the Forest (Conservation) Act,1980

Forest conservation clearances in India-I. Features of the FCA, 1980

The Forest (Conservation) Act was passed in 1980 with the stated objective “to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto”. Since then a huge body of orders and proceedings has accumulated, issued by the Ministry of Environment & Forests (MoEF), as well as an almost parallel undertaking by the Central Empowered Committee (CEC) and its originator, the Supreme Court (SC) (Dutta and Yadav, 2011), and now the National Green Tribunal (NGT). Throughout the period, there has been more than average interest in the working of these institutions, and in the rationale and the implications of decisions handed down by them in a myriad of cases, and criticism from both the environmentalists, who want more control, and the development protagonists, who find the Act a huge stumbling block.

During the last five year plan, the pace of development has been pushed up to meet the aspirations of the nation, and the frustration of the industrial and political leadership with the environmental controls has correspondingly risen to almost intolerable levels. Lurid stories of corruption and bureaucratic ineptitude have been bandied about, the ministers responsible have been portrayed as ‘green terrorists’ and worse, and efforts made on either side to take the decisions out of the hands of the MoEF, either by instituting an independent Authority or by giving the final say to a high-level committee at Cabinet level.

This article seeks to throw some light on the underlying issues, and clarify the processes used by the ministry and the reasons for the perceived weaknesses and deficiencies. The article will hopefully be of some interest to development practitioners and public policy analysts, as well as project proponents and state governments.

The role and features of the FCA (1980)

The bare version of the Forest (Conservation) Act, 1980 is fairly simple. In a remarkably short ambit of four main sections, it lays down the conditions and considerations for “the dereservation of forests or use of forest land for non-forest purpose” (Section 2). The central clause is that “the prior approval of the Central government” is mandatory before any “State Government or other authority” makes any order for dereserving a reserved forest, or permitting use of “any forest land” for “any non-forest purpose”, or assigning by way of lease or otherwise” any forest land to a private person or entity, or clearing any forest land of naturally grown trees “for the purpose of using it for afforestation”. This is followed by an “Explanation”, which lays down what “non-forest purpose” would encompass: strikingly, many activities routinely undertaken in the past as ostensibly in the interests of forest restoration will now come under this “non-forest purpose” category, such as “breaking up or clearing” forest land for the purpose of “(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants”, or for “(b) any purpose other than reafforestation”.

It may not be necessary to expand further on the provisions and processes of the Forest Conservation Act, as details are available in the various learned publications such as Dutta & Yadav (op. cit.), the media (e.g. Down To Earth magazine), the published documents of the MoEF (such as the Handbook, 2004), and of course the website of the ministry. The important point about the FCA is that it does not outright prohibit the use of forest for non-forest purposes, but only seeks to regulate it and make it more difficult by placing the decisions under the control of the central government. User ministries and industries therefore tend to view it primarily as an enabling legislation, and not a prohibitory one. They fully expect that the FCA will be used in favour of developmental agencies to place at their disposal the requested forest lands, in support of important infrastructure projects and national development goals. When the land and forests are the property of the state, and the government of the day fully represents the collective will of the people, they do not understand why an individual ministry or a small committee of officials and non-officials is vested with such over-riding powers as to say ‘no’ to the forest diversion proposals put up with the whole-hearted support and endorsement of the states and the ministries concerned.

On the other hand, the Supreme Court in the ‘Godavarman’ judgement, echoing the perception and expectations of the environmentalists and forest conservationists, has emphasized the objective expressed in the preamble of the Act: that the FCA 1980 was enacted “with a view to check further deforestation which ultimately results in ecological imbalance” (Supreme Court order dated 12.12.1996 in WP No. 202/1995 with WP No. 171/96). This immediately places a totally different set of responsibilities and considerations  on the FAC and the MoEF, which the court has elaborated in subsequent paragraphs in the order dated 12.12.1996 itself, as well as in a subsequent, long, series of orders under the same umbrella case. A major elaboration of the role of the FCA (1980) was made in the Supreme Court order of 6.07.2011 in the ‘Lafarge’ case, wherein the Supreme Court ruled that

“the National Forest Policy, 1988 which lays down far-reaching principles must necessarily govern grant of permission under Section 2 of the Forest (Conservation) Act, 1980, as the same provides the road map to ecological protection and improvement under the Environmental (Protection) Act, 1986. The principles/ guidelines mentioned in the National Forest Policy, 1988  should be read as part of the provisions of the Environmental (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980.” (Supreme Court, order dated 6.07.2011 in WP No.202/1995).

The order itself gives a hint on how the national forest policy guidelines would work themselves out in the operation of the FCA (1980):

“The basic objectives of the National Forest Policy, 1988 include positive and pro-active steps to be taken. These include maintenance of environmental stability through preservation, restoration of ecological balance that has been adversely disturbed by serious depletion of forest, conservation of natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, checking soil erosion and denudation in catchment areas, checking the extension of sand dunes, increasing the forest/tree cover in the country and encouraging efficient utilization of forest produce and maximizing substitution of wood.” (Supreme Court, order dated 6.07.2011 in WP No.202/1995)

The Forest (Conservation) Act is obviously a double-edged knife, that can serve for both conservation and deforestation, and the executive officers dealing with the proposals under this Act need some guidance on which consideration is to be predominant and under what circumstances. This guidance is sought to be provided by a set of Rules and Guidelines and Clarifications (contained in the Handbook, op. cit.). Some of the considerations are indicated by the details required to be provided in the application form: details of the forest such as location and area (obviously), but also its density, species-wise and diameter-wise number of trees on the land,  vulnerability to erosion, distance from the boundary of the forest, whether any rare/ endangered/ unique species of flora or fauna is found, whether any protected monuments etc. are located therein, whether the forest area asked for is the barest minimum, details of compensatory afforestation (CA) areas proposed, site inspection report of the DCF, and division totals so far of areas diverted and CA done.  The DCF signs off with his or her “specific recommendation …for acceptance or otherwise of the proposal with reasons”, and the whole lot is sent up through the various levels of the state government to the centre. At the MoEF, the Forest Advisory Committee (FAC) may, while tendering its advice, also suggest any conditions or restrictions on use of the forest land, in order to minimize the adverse environmental impact. The central government, in turn, “shall, after considering the advice of the Committee tendered under Rule 7 and after such further enquiry as it may consider necessary, grant approval to the proposal with or without conditions or reject the same within sixty days of its receipt” (FC Rules, Sec. 8, see Handbook, p.5).
The process in the MoEF itself can takes months and sometimes years, and justifiably so, since the proposals involve various significant issues like sensitive habitats and potential displacement of hundreds or thousands of people, and may require site visits by the committee or by co-opted experts, field surveys and observations, and public consultations at different stages.

In the next post, we will see what the Supreme Court has said about refraining from creating situations of fait accompli in forest clearance cases.

Dutta, Ritwick and Bhupender Yadav. 2011. Supreme Court on Forest Conservation. Third Edition. Universal Law Publishing Co. New Delhi.

Government of India. 2004. Handbook of Forest (Conservation) Act, 1980 (with Amendments made in 1988), Forest (Conservation) Rules, 2003 (with Amendments made in 2004), Guidelines & Clarifications (Up to June, 2004). Ministry of Environment & Forests, New Delhi

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