Missing the Forest for the Trees

How does the government define India’s forests? Which forests are inviolate and under what conditions can regulations protecting them can be waved? What is the Government’s forest policy as it pursues the goal of having 33 per cent of its land under forest cover? No definitive answer to these questions is available as the Forest (Conservation) Amendment Act 2023 came into effect on December 1 modifying the original legislation of 1980.

LEGAL MUDDLE 

However, the Supreme Court, which has admitted a petition challenging the constitutionality of the new legislation, thinks these are important issues. It has refrained from staying its operationalisation, only after the Union government’s assurance that no “precipitative action” will be taken until guidelines are framed for an exemption from the definition of the forest under the new law. The thrust of the legal challenge is that the new law undermines India’s decades-old forest governance regime built around the implementation of the 1980 Act and the wider interpretation of the word “forest” adopted by the Supreme Court in a landmark decision in 1996 (T.N. Godavarman v Union of India). 

The rub is that confusion between the legal and official definitions is not the only issue that makes policymaking for India’s forests problematic. As per the Forest Survey of India (FSI), India’s forest cover is above 70 million hectares or about 21.7 per cent of the country’s landscape, registering a marginal increase during 2019-2023. This bald statement hides the diversity of forest types, histories, and social settings in which forests exist. Different sections of society have been treated as valuable for different reasons.

FORESTRY HISTORY AND CONTEXT 

In modern India, the British introduced the concept of “reserved forest” through the Indian Forests Act of 1878. The Indian Forest Act of 1927 is still the source of a state government’s power to notify, declare, or record forests as reserved or protected.  After Independence, the 1952 National Forest Policy (NFP) set the target of bringing one-third of all land under forest cover. For ecological considerations, the recommended magic figure was 60 per cent in mountainous districts. 

In 1976, the subject ‘forest’ was shifted from the State List to the Concurrent List of the Constitution. The protection of forests and wildlife was included in the Directive Principle of State Policy and was additionally made a Fundamental Duty.

EVOLVING POLICY LANDSCAPE  

These policy prescriptions led to the 1980 Act, which made prior approval of the Centre necessary for the de-reservation of forests and diversion of forest land for non-forest use. The Act also provided for compensatory reforestation and afforestation. India’s forests are currently governed by the National Forest Policy of 1988. In 2018, the Modi government unveiled the draft of a new policy, which was revised in 2019. Since then, the final version of the policy is yet to see the light of the day.

The delay in the adoption of the new policy is unfortunate as it would have provided a road map for governance of the forest sector for the next 20-25 years. In its absence, legislation on forest regulation is being done on an ad-hoc basis. One of the constant criticisms of the present government is the speed with which it is giving clearances to projects requiring forest land diversion. The amended law on forest conservation is a case in point.

It makes it easier for authorities to divert reserved forest areas for commercial and public infrastructure purposes. A list of activities for permitted “non-forest purposes” has been arbitrarily expanded to include safaris, zoos, and eco-tourism facilities.  That ecological considerations have been subordinated is underlined that the 2023 legislation enables the diversion of forest land for linear projects tied to “national security” and “defence” within a 100-kilometre radius along border areas. This exclusion zone encompasses some of India’s most biodiverse and fragile ecosystems.

GOVERNANCE ARCHITECTURE AND CHALLENGES

How the Supreme Court will decide the Constitutional challenge to the latest law in terms of evolving environmental jurisprudence remains to be seen. But the architecture of forest governance involves many variables. Forests are complex socio-ecological entities as they provide multiple benefits to multiple stakeholders at different scales, from local to global. Since these different benefits flow to different beneficiaries all of them cannot be maximised. Forest governance therefore involves taking decisions about where to prioritize which benefits, for whom, to what extent, and through what process.

In the absence of a long-term National Forest Policy, legislation on the subject called for wider consultation among lawmakers from many perspectives. Sadly, this seemed to be missing when the Forest (Conservation) Amendment Bill 2023 was brought in the Indian Parliament. It was cleared by the Lok Sabha on July 26, the Rajya Sabha on August 2, and received Presidential Assent on August 4.