Under Article 48A of the Constitution, the State has a fundamental duty “to protect and improve the environment and to safeguard the forests and wildlife of the country”.

Furthermore, the ‘Doctrine of Public Trust’, read with Article 21 (Right to Life) of the Constitution, imposes an obligation on the State to hold in public trust, the natural environment including forest and wildlife and to not surrender it to meet private aspirations. 

While all ministries and departments, both at the Centre and the states, are theoretically wedded to the aforementioned constitutional duties of the State, it is the Ministry of Environment, Forest and Climate Change at the Centre, and the department of Forests in the states, which act as the face of the State to fulfill the requirements of both the Article 48A and the Doctrine of Public Trust. 

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Kinds of Lands

On the grounds of tenure there are broadly three kinds of lands in the country: forest, revenue, and the private lands.

‘Private’ lands are owned by individuals and can be used as per the owner’s wish subject to a few land use regulations. Private lands can be acquired by the state for a public purpose after following a due process and payment of required compensation to the owner.

‘Revenue’ lands are those which are recorded as such in revenue records of the revenue department. Majority of lands in the country are revenue lands. Most of the processes of urbanisation, and economic activities take place on revenue lands. 

Thus, revenue lands can be and are made available from time to time to different stakeholders / claimants like various departments of the state, industries, public and semi public utilities, markets, roads, railways, etc.

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‘Forest’ lands are those which are required to be kept inviolate and protected for the environmental and ecological security of the country. These lands are in the administrative control of the forest departments and managed by them under the constitutional mandate. 

National Forest Policy 1988

The National Forest Policy enunciated in 1988 with the principal aim ‘to ensure environmental stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms, human, animal and plant’ mandates, amongst other things, that forests must cover at least one third of the total land area of the country. 

According to the State of Forest Report 2019, just 24.5 per cent of the country’s land is covered by forests and tree cover. 

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In 1972, the Wildlife (Protection) Act was promulgated for the creation of protected areas for wildlife conservation.

Forest Conservation Act, 1980

But, by the 1970s large tracts of forest lands were being diverted for non-forestry uses by different state governments to the detriment of the nation’s environmental and ecological security. 

There was an urgent and dire need to stop large scale deforestation in the country and an ordinance was promulgated on October 25,1980 to try and do so. This ordinance was later replaced by the Forest Conservation Act (FCA), 1980 with a mandate ‘to provide for the conservation of forests and for matters connected therewith ……’ 

The FCA is perhaps the smallest piece of legislation in the country with such a big impact. Just the one line direction under section 2 declaring that ‘no state government or other authority shall either de-reserve or divert any forest land for non forest purposes without the express prior approval of the Central Government,’ has effectively reined in the runaway pace of deforestation in the country.   

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However, the purpose of FCA was not to put a ban on use of forest land for non-forest purposes. It was to usher in a legal process by which such diversions of forestland for other purposes, could be done after due consideration of the merits of the proposal. 

The Act provided for the creation of an expert Forest Advisory Committee (FAC) at the central level to assess the merit of proposals for diversion of forest land for non forestry use and act on it.      

The FCA itself did not define a ‘forest’ and it was left to the Supreme Court in the Godavarman case in 1996 to direct the various state governments to define it after having  held that the word ‘forest’ must be understood according to its dictionary meaning.  

Amendments proposed in the FCA 

Recently, the environment ministry released a ‘consultation paper’ for the amendment of the Forest (Conservation) Act, 1980. The deadline for submitting comments and suggestions on the proposed amendments is till November 1, 2021.. 

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The ‘key’ issues published in the ‘consultation paper’ include: 

1. Should the provisions of FCA continue to apply to private lands which have come under the definition of ‘forest’ consequent to the Supreme Court’s directions in the Godavarman case?
2. Should the lands acquired, but not utilised prior to the promulgation of FCA in 1980 by developmental agencies like the Railways, Roadways, PWD, NHAI, etc., and where trees have come up or been planted under government schemes, be exempted from FCA for non forestry use?   
3. There is a need to grow trees outside of designated government forests to meet the national forest policy target of one third of lands under forest and tree cover. This is also needed to meet the Nationally Determined Contributions of India to create a carbon sink of additional 2.5 to 3.0 billion tons of carbon dioxide equivalent by the year 2030. India also requires to reduce its imports of wood and wood derivatives which is currently to the tune of around Rs 45 thousand Crores. Apprehensions about the applicability of FCA to such plantations are proving to be a deterrent.   
4. Should time bound creation of infrastructural projects on international border areas of strategic and security importance be exempt from prior approval from the central government and made permissible by the respective state governments?     
5. Should non impacting survey and investigation activities prior to application for permission for non forestry use be exempt from prior approval from the central government? 
6.  Should a ‘prohibitory’ clause be added to the FCA to designate some forest areas of outstanding ecological value as ‘No Go’ areas for a specific time period?    
7. Should the punishment for violations under the FCA be enhanced?

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Diluting central government’s role

While the above points appear reasonable and worthy of implementation, on deeper consideration it suggests that many of the proposals are regressive in nature whereby the authority of the central government could be diluted or done away with. 

A few proposals deal with the grant of ‘exemptions’ from the application of FCA. Yet others are welcome additions like the enhancement of punishments or creation of ‘No Go’ forest areas. 

Prima facie it also appears that many dilutions in the FCA are being proposed since the regulatory authority, namely the environment ministry, is unable to arrive at a merit- based decision on a proposal in a timely manner, probably  due to institutional deficiencies existing within the extant forest advisory committee system. 

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Developmental agencies feel there are delays in decision making, while civil society observers feel that there is an absence of due diligence and merit-based assessments.  

Examining the institutional deficiencies within the forest advisory committee system and removing them or even overhauling the system is advisable. This could be done by creating a standing forest advisory committee which meets every day; is independent in its functioning and is well provided in terms of personnel and wherewithal to arrive at merit-based decisions quickly. It could also take up border areas and defence related proposals on a priority basis.     

Forester’s dilemma    

Notwithstanding FCA led legal diversion of forest lands, these continue to be eyed by vested interests. So, when forest departments say no to either illegal diversion of forest lands or extraction of forest products from areas in their charge, then people must understand that the department does so as part of its constitutional mandate as well as in pursuance of the requirements of the National Forest Policy and not because they are conservative or over possessive of such lands or its produce. 

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But frequent dubbing of forest department officials as ‘anti-development’ by vested interests, sometimes even by the political functionaries or officials of other government departments is most unfortunate. It also instills, most unjustifiably, a ‘guilt’ complex and a sense of confusion within the forest bureaucracy. This must be halted. 

Let us not forget that climate change demands that all old growth forest tracts in the country (confined mostly along hilly tracts) must be protected and preserved for carbon sequestration and as essential catchments for ensuring the nation’s water security. 

Manoj Misra is a former member of the Indian Forest Service (IFS) and currently convener of Yamuna Jiye Abhiyaan (Campaign for Living Yamuna).