Comments on the Consultation Paper on the Proposed Amendments to the Forest (Conservation) Act,1980

Submitted By Dr. Arpitha Kodiveri to the Ministry of Environment, Forests and Climate Change

Date: October 28, 2021

  1. Enabling Deforestation through Deregulation  

On October 2nd,2021 the Ministry of Environment, Forest, and Climate Change issued a consultation paper highlighting the directions in which the Forest Conservation Act,1980 will be amended. The Forest Conservation Act, 1980 is a key forest law that regulates decisions to deforest or alienate forest land for a non-forest purpose very often for a large development project. The tone and tenor of these proposed amendments are in the direction of deregulation- deregulating by reducing the scope for scrutiny of anti-environmental decisions. As the climate crisis looms large, we need to locate these proposed amendments in understanding how they will limit the ability of environmental law to protect us from climate harm. The developments in attribution science have alerted us to how the recent spate of natural disasters is attributable to human-induced climate change. Despite these developments, laws, and policies globally fail to curtail destructive development projects that make us more vulnerable to the impacts of climate change. A legislative impact assessment by independent climate scientists is required to understand how these amendments will shape our collective climate future.

The proposed amendments acknowledge the importance of forests as potential carbon sinks, yet they fail to strengthen the law to curtail deforestation. The FCA which centralized decision-making in 2016 through an amendment to its rules decentralized it to include the requirement of gram sabha consent. The present set of amendments which seeks to create exceptions to the applicability of the law- does away with this progressive legal requirement too.

Many amendments to India’s environmental laws are made with the assumption that significant processes like the forest clearance process add to the compliance burden of industries. In an era where every decision on how forests are removed can have a generational impact and impact the future of species on this planet- perhaps the compliance burden should be rigorous and thoughtful. In our efforts to ease regulations for business we are doing away with important sites in our enviro-legal framework that offer the ministry an opportunity to investigate and scrutinize decisions that result in deforestation. The approach should move away from deregulation but rather revisit environmental laws and discuss how they can better respond to the reality of the climate crisis. We need a legislative impact assessment to understand how these proposed amendments will impact our climate.

Comments on the process of public consultation

Forests and their future are an important matter of concern for citizens. In particular forest-dwelling communities who live and depend on these ecosystems. The consultation paper was initially published in English and was later translated into eleven other languages after demands were made by citizens from around the country. Further, comments can only be received over email- how does one provide comments then if one does not have access to the internet. There is a need to standardize the process of public participation in environmental lawmaking. The following are a set of suggested guidelines that can engender equitable participation across India.

  1. Mandatory translation of proposed amendments in as many languages as possible so the document is accessible to citizens across India.
  2. Provide a minimum of three months to receive comments on the proposed draft and be open to receiving comments in different languages and through snail mail.
  3. To provide details of the proposed amendments as opposed to a mere set of issues so citizens are aware of which provisions are being changed and how.
  4. Holding public hearings with citizens who will be most impacted by the law like forest-dwelling citizens.
  5. Conducting legislative impact assessments particularly by climate scientists to better understand the impact of these changes and make the same available to citizens to gauge the impact that it will have.
  6. Reviewing the comments received and addressing the concerns of citizens through detailed responses by the Ministry.
  7. Revisiting the proposed amendments considering the comments received and changing them in light of the concerns raised.

Detailed comments on the issues proposed

Issue 1  This seeks to limit the definition of forests and thus reducing the scope and applicability of the FCA. While the definition of forests has been an issue of contention- there is a need to define it in ways that enhance the legal shield and scrutiny and not reduce it.
Issue 2This will create confusion on the ground and increase deforestation. If all pre-1980 acquisitions are allowed without forest clearance, how does one assess the impact it will have on the rights of forest-dwellers and biodiversity loss? How will the amendments ensure that there is no room for misuse of this exemption? It is pertinent to note that these exemptions will be applied in a legal context where the Forest Rights Act,2006 (FRA) is applicable. How will these exemptions ensure compliance with the FRA?
Issue 3To incentivize private plantations, this issue fails to address how deforestation of these plantations will be regulated? If plantations do not qualify as forests, then how do we make sure that they remain carbon sinks? Further, it is important to have scientific criteria of what gets planted and where based on the specificities of the local ecosystem.
Issue 4This issue speaks to the confusion of the legal categorization of land. In its attempt to clarify the legal categorization it serves a similar function as the earlier issues of reducing the definition of forests. Curtailing the definition of forests to promote plantations brings back the question of how this will be regulated and monitored to prevent deforestation.
Issue 5Another exemption for which detailed scientific studies are needed to understand the impact it will have by reducing the application of the act and the need for forest clearance.
Issue 6An interesting approach to protecting certain patches of forests but there is a need to clarify how these forest areas will be identified and how forest rights of communities will be safeguarded as well as their voices included in the selection of these areas.
Issue 7This is a problematic amendment as it exposes pristine forest areas across Arunachal Pradesh, Kashmir, Bengal, and Gujarat to deforestation. This exemption again limits the ability of this law to scrutinize decisions of deforestation, especially in these fragile ecosystems. Such deforestation can also have a transboundary impact which has to be accounted for. Further, this amendment will dilute the forest rights act as the consent of the gram sabhas in these forested stretches will not be required.
Issue 9Like issue 7 this seeks to create an exception to the application of the law. In doing so it assumes that there is no adverse impact on the ecosystem from Extended Reach Drilling (ERD). There is a need to conduct a scientific assessment of ERD on the aquifers and the ecosystem at large before such an exception to the law is allowed.
Issue 11Another exception that assumes zoos, safaris, and the construction of infrastructure will not harm the ecosystem. Some studies show that safaris impact the wildlife adversely as well as infrastructure constructed in fragile ecosystems can gravely impact the forest. The creation of safari routes also increase access to those patches of dense forest which can be used by poachers too.There is a need to scrutinize the decisions taken by the forest department and the wildlife bureaucracy on the establishment of zoos, safari routes, and infrastructure.
Issue 14This issue too requires scientific assessment and clarification on what kinds of survey and investigation activities are being included. Survey for minerals and other resources does involve extraction and damage to the ecosystem and should not be an exception to the application of the Act.
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