Bhumi Adhikar Andolan is an alliance of peoples’ movements and farmers’ outfits across India. This blog is a letter dated 8th November 2021 by the alliance to the Ministry of Environment, Forests and Climate Change (MOEFCC) giving comments on the Proposed Amendment to Forest (Conservation) Act, 1980.
Shri Sandeep Sharma, IFS
Assistant Inspector General of Forests,
Ministry of Environment, Forests and Climate Change (MOEFCC),
Indira Paryavaran Bhawan, Aliganj, Jor Bagh Road,
New Delhi – 110003
Subject: Comments on Public Consultation Paper on Propose Amendment to Forest (Conservation) Act, 1980
With reference to the Public Consultation Paper dated 2nd October, 2021 inviting comments/ suggestions from the public at large on the proposed Amendment to the Forest (Conservation) Act, 1980, Bhumi Adhikar Andolan would like to submit to you the following section by section comments and suggestions:
1) Changes in the provisions of the Forest (Conservation) Act 1980 intends to limit the application of the Scheduled Tribes and Other Traditinal Forest Dwellers Act 2006 which is also known as Forest Rights Act (FRA) and supercede the enjoyed powers of Gram Sabha as primary authority to conserve & protect the biodiversity, wildlife, forests, adjoining catchment areas, water sources and other ecologically sensitive areas; stop destructive practices affecting these resources and decide whether any part of the forest should be diverted or used for any purposes.
2) The proposed changes violate The Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA); Forest Rights Act, 2006 (FRA); and constitutional provisions for scheduled tribes and other forest dwellers.
3) The Government’s claim to check further deforestation fall-down with the proposed changes that intend to limit the application of both Forest Rights Act (FRA), 2006 and Forest (Conservation) Act, 1980 (FCA) by taking out large forest areas out of the purview of FCA to ensure diversion of forests and make it cheaper and easier for public and private sector, intending to advance the agenda for ‘ease of businesses.
4) The proposed changes completely violate the Government of India (Allocation of Business) Rules, 1961 which pursuant to the enactment of Forest Rights Act, 2006 requires that any changes in laws and policies relating to forests must only be undertaken with due consent of and in collaboration with the Ministry of Tribal Affairs (MoTA).
5) Looking at the compensatory afforestation purely from a carbon accounting perspective, forest researchers have repeatedly brought research documents asserting that the new plantation cannot compensate for the loss of carbon stocks and other ecosystem services provided by old-growth forests in any realistic time-frame. The proposed changes while attempting to redefine forests to promote private plantations intend to ignore all these findings that may lead to massive deforestation and environmental degradation.
6) The process followed in bringing the new proposed changes violate the pre-legislative consultation by not following the timeframe required for consultation and by releasing the proposal only in English with 14 items intended for amendment, which are vague, unclear and self-contradictory, without spelling out the actual proposed amendment.
7) The proposals dilute the rights of the States to notify forests thereby further centralizing authority in the centre.
8) The provisions have been brought without any pre-legislative consultation with the state governments and autonomous agencies such as National Biodiversity Authority, as is required by the Constitution of India and various enactments.
POINT NUMBER 1 PROVISION
This is to ‘define the scope of application of the Act in an objective manner’ citing the ambiguity by the widening of the definition of ‘forest’ under the Supreme Court Judgement dated 12.12.1996 in the writ petition (Civil) No. 202/1995 in the matter of T. N. Godavarman Thirumulpad versus Union of India and others. The definition of forest with Supreme Court judgement brings forest lands (whether notified or not) under the ambit of FCA resulting into resentment and resistance particularly from private individuals and organisations as such lands are restricted from non-forestry activities.
a) The provision completely ignores the Forest Rights Act, 2006 (FRA) that already defined ‘forest land’ under section 2(d) as land of any description falling within any forest area and includes unclassified forests, undemarcated forests, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National Parks. While recognizing and vesting the rights of Scheduled Tribes (STs) and Other Forest Dwellers (OTFDs) on all these forest categories, FRA already bestows upon the powers to Gram Sabhas as authority to determine their rights, govern and manage the forests as Community Forest Resources (CFRs) and protect, conserve the biodiversity and wildlife. Moreover, the sub-section 4(7) under the FRA also confers exemption from all the encumbrances and procedural requirements, including clearance under the Forest (Conservation) Act, 1980, requirement of paying the ‘net present value’ and ‘compensatory afforestation’ for diversion of forest land, except those specified in FRA.
b) The proposed changes undermine FRA provisions while intending to ‘define the objective scope of application of FCA’ in a very ambiguous and arbitrary manner. By drastically restricting the scope of FCA under the guise of freeing forest land and certain activities from the application of FCA and therefore the purview of FRA and Gram Sabha, the proposed changes not only take away the regulatory powers of the Gram Sabha under FRA but also liberalise the use of forest lands for other non-forestry activities free from the forest clearances and GRAM Sabha oversight under FRA with regard to protection and conservation of ecology.
c) The provision also completely ignores the purview of Gram Sabha under the Provisions of the Panchayat (Extension to Scheduled Areas) Act 1996 with regard to land and natural resources.
d) In case of resentment and resistance from private individuals and organisations, the need is to look upon their issues in case of (i) who are these individuals and organisations and whether they approached the courts for protection (ii) how much land they hold without vegetation and in case of such situation a status-finding on application of ceiling laws on such land.
POINT NUMBER 2 PROVISION
This is to exempt lands acquired by agencies such as Railway, NHAI, PWD etc. prior to 25.10.1980 which remained unused and had grown trees under various government schemes and therefore comes under the purview of FCA now, in order to free such lands from compensatory levies and use the land for non-forestry purposes as project expansion or for other purposes, without having to comply to take approval under FCA.
a) Under the vast definition of public purposes for economic development in state and central laws, land acquisitions by government agencies have often led to displacement with loss of land, livelihoods and severe socio-economic impacts on the poor and marginalized communities. Various reports and research suggest that over lakhs of hectares of such acquired land remain unused by the land holding agencies for years. Recognising the need of prudence use of land and historical injustices on the poor and marginalized; section 101 under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (LARR) enacted the possibility of the return of unused lands unutilized over a period of five years from the date of taking over the possession, to the original owner or owners or their legal heirs and; the forest rights recognized and vested under the section 4(8), FRA include the right of land to forest dwelling Scheduled Tribes and other traditional forest dwellers who can establish that they were displaced from their dwelling and cultivation without land compensation due to State development interventions, and where the land has not been used for the purpose for which it was acquired within five years of the said acquisition.
b) The proposed changes violate the provisions under FRA, 2006 and LARR, 2013 and negate the rights of poor and marginalized meant to undo the historical injustices meted out to the them for generations.
POINT NUMBER 3 PROVISION
This refers to unattended lands under the category of deemed forest that fall under the provisions of FCA and the need to find lands outside the government forests to keep the target of achieving one-third area of the country under forest and tree cover; meet the target of creating carbon sink of additional 2.5 to 3.0 billion tons of CO2 equivalent by 2030 and; extensive plantations and afforestation to reduce the flow from foreign exchange for import of wood and wood derivatives to the tune of approximately Rs 45 thousand crores. To ensure this, the proposed changes exempt all such plantations in private/non forest lands from the purview of FCA.
a) Huge tracts of commercial plantation projects and monocultures have destroyed local biodiversity, source of non-timber forest produce (NTFPs) and forest foods used by the tribals. The Central Government and the MOEFCC have been directing the states to carry out extensive compensatory afforestation (CA) projects (mostly monoculture and commercial species) in all types of land (forest land in revenue records, common lands, cultivable lands, private lands and non-forest lands) cultivated and used by tribal and other forest communities and also inside standing community forests, leading to violations of rights and conflicts. CA activities which were originally intended to be taken up on lands not recorded as forests in lieu of the diverted forests routinely come up on forest commons and village pastures/common lands. These include lands of various categories like village forest, village commons, zamindari forests and government/ Panchayat lands, all of which support a wide range of rights of access and use, recorded or unrecorded, legal or customary, for collecting fuel wood, grazing animals and so on. Under the FRA, such rights were supposed to be duly recorded, and entitlements given to the forest dwelling people. There are reports of massive corruption and irregularities in administration of CA funds by the forest department, with serious charges of ghost plantations, replacement of natural forests with monocultures being reported from across the states. Not only the forest rights campaigners and tribal groups, but the MoTA too has raised concerns about violation of tribal rights due to CAMPA.
b) Raising CA plantations on Commons and common lands can only undermine the FRA and ultimately help perpetuate the historical injustice that the FRA promises to redress.
c) Moreover, Forest governance researchers have also argued that a monoculture plantation can never compensate for the complex biodiversity of a forest. There are ample evidences that suggest that compensating forest cover by raising non-native and artificial plantations elsewhere do not translate to the compensation of the forest benefits lost and are likely to be hazardous to the existing ecosystem.
d) The Central Government has also been promoting private sector companies for large scale plantation projects. This will lead to destruction of forests, biodiversity, ecosystem and promote land grabbing furthering violation of rights of the communities. Exempting these from the purview of FCA allows government agencies and private sector to establish massive commercial and monoculture plantations making use of the government incentives/funding to harvest them at will later and change the land use freely to non-forestry without Gram Sabha consent.
POINT NUMBER 4 PROVISION
This points at different land records of forests and the contrasting entries of the same land in revenue and forest records. The proposed changes provision to exempt such lands recorded as forests after 12.12.1996 from the purview of FCA to encourage forestry activities (including agroforestry and other tree planting systems).
Under the section 3(f), FRA provides the individual and community rights in or over disputed (forest) lands under any nomenclature in any State where claims are disputed as forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers. This provision under FRA encompasses an estimated 40 million hectares of forest land recorded in the village revenue records of 1,77,000 villages in India that include nistar forest used by communities, communities protected forests etc. The proposed changes to exempt these lands in revenue records marked as forests by the forest department after 1996 from the purview of FCA would lead to change in land use in violation of FRA by denying the authority of Gram Sabhas and legal rights of STs and OTFDs. This would lead to rife disputes and conflicts among the various state agencies, Gram Sabhas and forest dwellers across the country.
POINT NUMBERS 5, 7, 9, 11 AND 14 PROVISIONS
These propose exemptions from the purview of FCA for use of forest land in case of (i) strip plantations, amenities/habitations developed alongside roads and railway lines, (ii) development of strategic and security infrastructural projects of national importance along the international border areas, (iii) new technologies such as extended reach drilling (ERD) for exploration or extraction of oil and natural gas deep beneath the forest land, (iv) activities ancillary to conservation of forests and wildlife such as establishment of zoos, safaris, forest training infrastructure etc. (v) survey and investigation activities in forest land.
a) The proposed exemptions amount to liberalization of the present structure to permit easier diversion of forest land for non-forestry purposes without heed to any regulation and will end up privatizing forests and forest resources in complete violation of FRA and PESA. The proposed exemptions are also in violation of Supreme Court Judgements. MoEFCC has earlier exempted compliance with FRA in forest diversions in the case of linear projects, mineral prospecting, forest areas without tribal population, creation of land banks, temporary use of forest, mineral prospecting and while granting of ‘in principle’ Stage 1 clearance. While the earlier exemptions from FRA were in effect the violation of FCA, the proposed exemptions would be in violation of FRA. This exhibits the intentions of the ministry towards compliances of FCA and FRA. The proposed exemptions also contradict MoTA that has written to state governments that the FRA applies to all forest land diversions without any exemptions and that the Gram Sabha consent is mandatory.
b) The proposal to enable access to forests for extraction of oil and gas are clearly to enable access to forests for commercial purposes. This will lead to extraction of ground water and severe damages to ecology and biodiversity. Similarly, the zoos, safaris, forest training infrastructure are all commercial activities and cannot be considered as ancillary activities of forest conservation. All such activities are for generation of revenue, while leading to increase in commercial activities for private gains on forest lands, thereby destructing forests.
c) Another question arises is related to unused land acquired by the state agencies for railways, roads. Who were these lands acquired from? What would happen to the rights of tribal communities who have established rights on unused lands and where trees were raised, therefore declared as protected forests? The proposed exemptions contradict the Ministry stance on adequate afforestation.
POINT NUMBER 6 PROVISION
This proposes introducing an enabling provision to keep certain pristine forests showcasing rich ecological values intact for a specific period.
a) The provision fails to define the pristine forest and also is unclear of the term specific time period. Neither does it specify on what shall happen after that specific time period.
b) The Forest Policy 2018 has mentioned ‘production forests’ or ‘plantation forests’ – a fourth category besides the usual reserve forests, protected forests, unclassified or village forests as per the Indian Forest Act 1927. Creation of the ‘pristine forests’ is no way different from the protected areas, wildlife sanctuaries, tiger reserves etc. under the Wildlife (Protection Act) 1972 – also brought in under the purview of FCA for being too ‘pristine’. In case of FRA rights falling in these protected areas, the power to protect, conserve and manage forests, wildlife and biodiversity is vested in the Gram Sabha. By bringing another category as pristine forests, the provision intends to continue colonial rights regulating and prohibiting regime in protected and forests areas in violation to FRA. Moreover, violations of provisions and laws such as FRA, FCA, creation of go and no-go areas, PESA etc. and introduction of various provisions for diversion of forest land for commercial non-forestry purposes leading to destruction of ecology also clarify the intentions, thus inclusion of another category of forests in the name of conservation and protection of natural resources seem a conservation cloak meant to prohibit rights of the communities.
POINT NUMBER 8 PROVISION
This proposes to delete the sub-section 2(iii) of FCA and invoke sub-section 2(ii) for any kind of lease assignment having an intention of using for non-forestry purpose.
The provision intends denial of transformation in forest governance due to FRA considering only NPV (net present value) of forests without addressing the issues of forest rights and forest conservation. It is noticed that the note proposes to exempt provisions of FCA in all cases pertaining to any ‘inconvenience’ for project proponents using forest land for non-forest purposes. There have already been huge irregularities and violation of laws such as environmental clearance, compliance provisions under FCA for FRA in forest diversions for project approved under both sub-sections 2(ii) and 2(iii) of FCA. In most of the cases, the completion of due process of FRA implementation is not considered nor is the consent of Gram Sabha not taken after completing the FRA implementation. The violations continue in the cases of extension of leases or the forest lease operations. This also includes mining sector being opened up for takeover by domestic and foreign companies. The provision also ignores the legal binding for incorporation of FRA compliance into section 2 of FCA as the earlier overrides in law.
POINT NUMBER 10 PROVISION
This proposes to allow lands of private individuals, that come within the state specific Private Forests Act or fall within the purview of dictionary meaning of the forest as per the Supreme Court order dated 12.12.1996, for construction of structures for bonafide purposes including forest protection measures and residential unit up to an area of 250 sq mtr as one time relaxation.
The provision supersedes the governance jurisdiction and legal authority of the Gram Sabha to all forest lands including such private lands that fall within the under the purview of FRA. Along with the FCA, the state laws too have not been amended to comply with FRA. The regulatory authority under these laws continue to disregard Gram Sabha in violation of FRA. Approval of Gram Sabha in all such cases of change in land use must be mandatory to ensure that the proposed diversion of land does not threaten the conservation and protection of forests, wildlife, biodiversity and ecosystem.
POINT NUMBER 12 PROVISION
This bars double imposition of compensatory levies calling it irrational.
The provision intends to facilitate takeover of forest-land by making it cheaper and easier for ease of business. It is, although, established that the compensatory levies do not rationally contribute to make good the loss of ecosystem services. The proposed change brings the core objective of these amendments to ease processes and procedures for commercial projects.
POINT NUMBER 13 PROVISION
This proposes cognizable and non bailable simple imprisonment and penalties in addition to penalties and punishment provided under FCA.
Contradicting the benefits provided under the FRA, FCA is already been used to file cases against the forest dwellers. Thousands of tribals have suffered arrests under the Act. The proposal to enhance the penalties and punishment need examination in the light of experiences of forest dwellers. The proposed amendment to FCA need compliance with the provisions of FRA while recognizing the authority of Gram Sabha as the statutory authority to initiate action under the sections 7 and 8 of FRA. There is also a need to consider the provisions under SC and ST (Prevention of Atrocities) Act 1989 in such cases of violations. Compliance of relevant laws such as FRA and SC and ST (Prevention of Atrocities) Act is a must to address the injustices made against the tribal communities and protect their interests.
Reports suggest that India has already lost nearly 38.5 thousand hectares of tropical forest between 2019-2020 making up nearly 14 percent loss of its tree cover leading to severe repercussions to ecology and environment that cannot be reversed. The introduction of proposed amendments is an act of rewriting the political geography wherein residual democratic content from the existing institutions are being hollowed out. The proposed provisions for the interests of commercial would lead to destruction of ecology, biodiversity and environment.
FRA, on the other hand, has a potential to secure the forest rights of at least 200 million tribals and other traditional forest dwellers over 40 million ha covering 177,000 villages. It is already reported that FRA and PESA have helped to facilitate support for forest communities at various levels by overcoming constraints and crisis situations during times of wide scale distress of pandemic. The strong resilience of communities in such distress situation of Covid-19 exemplify their ownership and deep sense of belongingness to the forests. The forests are complex ecosystem binding together the resources, nature, biodiversity and communities residing in for generations. Breaking this symbiotic ecosystem for the sake of commercial interests would only intensify the dispossession, alienation of communities, thereby adversely impacting the forests.
In view of the aforementioned comments to the proposed provisions, Bhumi Adhikar Andolan strongly objects to the amendments to Forest (Conservation) Act, 1980 vide ‘Consultation Paper on Proposed Amendments in the Forest (Conservation) Act, 1980’ (F. No. FC – 11/61/2021-FC dated 2.10.2021) and demands immediate withdrawal of the amendments by the Ministry of Environment, Forests and Climate Change (MoEFCC).
Bhumi Adhikar Andolan also demands incorporation of the provisions of laws particularly the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 1980 and concede the primary authority of Gram Sabha to conserve, protect and divert the forests.
We hope you will take these issues into consideration.
For further details contact: Vijoo Krishnan: 09818864006, Sanjeev Kumar: 09958797409, Shweta Tripathi: 09911528696
Members of Bhumi Adikar Alliance are as follows: National Alliance for People’s Movements (NAPM), All India Union of Forest Working People (AIUFWP), All India Kisan Sabha (Ajay Bhawan), All India Kisan Sabha (36, Canning Lane), All India Kisan Khet Mazdoor Sangathan, Lok Sangharsh Morcha, Yuva Kranti, Jan Sangharsh Samanvaya Samiti, Chhattisgarh Bachao Andolan, Kisan Sangharsh Samiti, Sanyukt Kisan Sangharsh Samiti, INSAF, Delhi Solidarity Group, Kisan Manch, Bhartiya Kisan Union, Adivasi Kranti Sangathan Odisha, Jan Abhivyakti Chhattisgarh, Adivasi Chetna Sangathan Odisha, Satark Nagrik Sangathan Delhi, Kisan Sangharsh Samiti Madhya Pradesh, Vistaphit Mukti Vahini Jharkhand, Kendriya Jan Sangharsh Samiti, Jharkhand, MASS Andhra Pradesh, Shramjeevi Sangathan Maharashtra, Hum Kisan Sangathan Rajasthan, Lokadhikar, Uttar Pradesh, Gaon Ganrajya Sangathan, Chhattisgarh, Adharshila Shikshan Kendra, Madhya Pradesh, Navjeevan, Andhra Pradesh, Mazdoor Kisan Sangathan, Bihar, Khetihar Khan Mazdoor Sangathan, Rajasthan, Vivasayigal Thozhilalargal Munnetra Sangam (VTMS)Tamil Nadu, Shoshit Kamagar Sangathan Maharashtra, Lok Chetna Sangathan Odisha, Adim Adivasi Mukti Manch Odisha, Renuka Kisau Bandh Sangharsh Samiti Himachal Pradesh, Dalit Adivasi Manch Chhattisgarh, Maati Sangathan Uttarakhand, Delhi Young Artist Forum New Delhi, Bahishkrit Hitkari Sangathan Bihar, Zindabad Sangathan Odisha, Sarvahara Jan Andolan Maharashtra, Kashtkari Jan Andolan Maharashtra, Patthar Khadan Mazdoor Sangathan Madhya Pradesh, Akhil Bhartiya Kisan Sabha, Akhil Bhartiya Vanjeevi Shramik Union, Antarrashtriya Upbhogta Kalyan Samiti, Bhartiya Kisan Morcha, Sundar Banjana Manch, Swastik Bharat Foundation, Vikas Morcha Ambala, Yuva Bolega Manch, Students Movement Against Destruction, Samajik Karyakarta Sangthan, Rural Upliftment Society of India, Punjab Consortium of Indian Farmer Association, Prakhand Swaraj Vikas Sangh, Tamil Nadu Village Panchayat President Federation, Mahila Mazdoor Kisan Manch, Kisan Sangharsh Morcha, Kisan Bachao Andolan, Kanhar Bandh Virodhi Sangharsh Samiti, Jharkhand Nagrik Prayas, Hindu Jagaran Manch, Gorakhpur Parmanu Virodhi Morcha, Naugarh Kshetra Mazdoor Mahila Kisan Sangharsh Samiti, Shree Ekvira Zameen Bachao Andolan, OBC United Punts, Patha Dalit Adhikar Manch, Bhartiya Gaon Krantikari Dal Haryana, Jan Sangharsh Samanvaya Samiti, Mahila Sangharsh Dal Kutni, Svaraj Sangh Bihar, Vishva Dalit Parishad, Bhrashtachar Daman Sangthan Delhi, Gareeb Sangthan Sama UP, Lok Seva Samajik Pratisthan, Akhil Bhartiya Dalit Ekta Manch, Ajmer Marwada Kisan Sabha, Yuva Bhartiya Janta Morcha, Delhi Grameen Morcha, Lok Priya Samaj Party, All India Christion Minority, Rashtriya Kisan Mazdoor Sangthan, Zenith Madhya Pradesh, Bundelkhand Kisan Mazdoor Shakti Sangathan, Mines, Minerals and Peoples, Van Panchayat Sangharsh Morcha Uttarakhand, Awadh People’s Forum UP, J&K RTI Movement, DISHA, Jaunpur, Kisan Sabha Himachal, India Indigenous Peoples, All India Agricultural Workers Union