From India's largest newsroom, I'm Arun George and this is the
Times of India podcast. Mani sabapati more than a
prastavid karthak is bilko patiya.
After a brief debate, the Forest Conservation Amendment Bill was
passed by the Rajya Sabha on the 2nd of August.
The Opposition had walked out of the debate on the law in the
Upper House of Parliament to protest against the situation in
Manipur. In its preamble, the Bill talks
of maintaining or enhancing forests, improving the
livelihoods of those dependent on forests and conservation of
forests. But not everyone's buying these
claims. I think we need to understand
that. This amendment does not
strengthen the Forest Conservation Act, it weakens the
Forest Conservation Act. And the only reason that the
government has not done away with the act completely is
because it wants to retain that sort of thing leaf of well,
there is still a Forest Conservation Act on the books
and we are still concerned about conservation.
As you notice in the amendment that was made, there's a
beautiful preamble about how important forests are now, even
for this, that and the climate change and so on and so forth.
The preamble didn't exist in the 1980 Act.
You've added a beautiful preamble, and everything that
you have done is actually going against that preamble.
That's Doctor Sharad Chandra Leli, who we spoke with to
better understand the issues with the new law.
In today's episode, he explains the issues with the new law and
why it doesn't really stick to its promise of protecting
India's forests. Sharad Leli is a senior fellow
and convener of the Center for Environment and Development at
the Bengaluru based Ashoka Trust for Research in ecology and the
environment. He explains that the original
Forest Conservation Act was passed in 1980 because it was
felt that states were being a little too generous in that
diversion of forest land for other purposes.
So the Forest Conservation Act was passed in 1980 and this was
seen as a response to the movements in the 1970s, drawing
attention to environmental degradation in general and
deforestation in the Himalayas in particular.
Including the Chipco movement and Indira Gandhi's sense was
that well this was basically the reason why we were losing a lot
of forest is because the states were being very casual about
diverting forests to non forest. Especially in those days there
was a lot of diversion of forests land to agricultural
lands. States had not really
successfully implemented land reform.
And there was therefore a lot of land, hunger, landlessness in
these in states where they then found it very convenient to hand
over forests to people to cultivate.
So the 1980 Forest Conservation Act is basically an attempt by
the central government to say the states are too close to the
problem, they don't have good judgment, they are politically
much more captured by local interests, and the central
government is a little distant from this politics.
And we'll have a more balanced view of whether or not a
particular diversion should take place.
So how did the Forest Conservation Law aim to protect
forests? Any diversion of forest land
above a certain size will require the permission of the
central government. They introduced the idea of
compensatory afforestation, saying that if permission is
given, you will have to do a certain amount of compensatory
afforestation to compensate the loss of forests.
In a way, they're hoping that, well, if you have to divert 100
acres at least we'll get equivalent 100 acres of
plantation afforestation somewhere else Done.
In that sense, we are still conserving the total forest
cover in the country. Now, what was meant to happen?
Was that the central government should have stopped the
allocation of forest land for different purposes.
But Sharad Leli says that didn't really happen, especially after
the economic liberalization of 1991 when the stopping of
projects due to environmental concerns began to be viewed as a
hindrance to India's economic. Growth over time, especially
after 1991 liberalization of the economy.
The pressures on claiming forest land for development, whether it
is highways, dams, mining, airports and so on, increased
dramatically And the tendency after 1991 was to, regardless of
which government was in power, was to say, well, these are
developmental needs and they have to be met somehow, whereas
the claims of landless people were seen as not really genuine
or not really contributing to development.
And so one clear trend has been that very little land has been
allowed to be diverted for agriculture or even pre 1980
conversions of the physically forest Land that was converted
agriculture before 1980 were also not allowed to be
regularized. The trend with respect to
development projects was that initially there was a certain
amount of regulation or a certain amount of denying forest
clearance for some projects and so on.
Over time, that has dwindled and the developmental pressures have
increased. And the government's overall
approach has been so much more pro development post
liberalization that any attempt by the forest advisory
committees to hold up clearance is seen as coming in the way of
development. In this mix.
Came what is known as the Godhavarman judgment of the
Supreme Court in 1996. The Godhavarman judgment in 1996
really did amend the law in practice was targeting the
problem that the Forest Conservation Act says any forest
that is diverted for non forestry purposes must go
through this process laid down by the Act.
The judgment came in response to a petition that was seeking to
protect forest land in the Nilgiris from illegal timber.
Question is. What is forest?
All laws operate through legal record, especially land related
laws of forest related laws. So anything that was notified as
a reserve forest or a protected forest by the government was
considered as the forest that is relevant to the implementation
of the Forest Conservation Act. What the court observed or was
brought to its notice was that there were last tracks of land
partly in the Northeast, partly in some pockets in central
India, certainly in pockets in the Western Guards.
Which are actually forested, but have not been legally notified
in the category of reserve forest or protected forest.
And this is because of a whole bunch of historical quirks.
It's not necessarily intentional or they've got a name which
doesn't look like forest, it's not under the Indian Forest Act,
it's notified under some other act and so on.
So all these lands which were physically covered with forest
were government lands, were escaping the ambit of the Forest
Conservation Act and these were being diverted happily by the
state governments. As if there was no forest on
them. So that was the focus of the
Godavarman judgment, saying any land that is covered by forests
should be brought under the procedures of the Forest
Conservation Act. When it comes to divergent, of
course, the courts approach ends up being also very blunt,
because the court did not distinguish, for example,
between privately owned land which might be covered with
either a plantation or with a natural forest, but it has been
is regularly harvested for timber.
The court took a negative view of these this timber harvest in
general till the states in the northeast fought back and said
that no, you have to allow timber harvest to continue and
the states. So over time the Godavarman
judgments complete stoppage on harvesting was relaxed.
But this confusion about whether the act, in terms of diversion,
applies to private lands, private agricultural lands,
private forest, That ambiguity remained.
Sharad, Lili says. This ended with states
categorizing these forest lands as deemed forests, and they
would be protected under the Forest Conservation Act.
So just to clarify, you had a law which protected forests and
then a judgment that protected forest lands that hadn't already
been categorized as forest by states.
While debating the new bill, Environment Minister Bhutendra
Yadav said the ambiguity arising from this Supreme Court judgment
is among the things the new amendment seeks to remove.
But does the new law really do that?
The amendment does not address this problem at all.
What the amendment is doing is in a sense undoing the go the
government judgment. It just goes back to saying any
land notified as forest, either in the forest departments record
or in the revenue departments record is to be covered by the
act, nothing else. Which means in particular in the
Northeast there are large types of land which are community
owned lands which will lose this protection.
There are state owned lands but not notified as forest.
Those will lose that protection. What does it mean to lose
protection? It means diversions of those
lands for non forestry purposes, whether it is highways, Rd.
mining, train, railway lines, dams, whatever will no longer
have to go through the permission of the Central
Ministry. That is the main implication of
the amendment. There's been criticism that the
new law now gives too much power to the central government.
Would you say that's the case? I wouldn't say that because.
It's not as if the central government can divert land
without the state government putting up a proposal.
The ownership of the land is still with the state
governments. Let us say there's a proposal to
do a create a highway or whatever else.
That proposal has to go to the state government, and the state
government has to endorse that proposal before it comes to the
Forest Advisory Committee. Now, exempting certain lands
simply means that the diversion can happen without it coming to
the central government. So in that sense, the central
government has given up control, not increase its control.
One major criticism of the new law is the fact that it allows
for any infrastructure development within 100
kilometers of the borders if it's deemed necessary for
national security, Sharad Leli says.
This in fact gives some departments the freedom to take
up any project without fear of having to make changes due to
environmental concerns. The assumption is that if the
army proposes a road, the state government is never going to say
no. And now it doesn't need to come
to the central environmental ministry.
So in a sense the central Defense Department is now sort
of lost any fear of the central environmental ministry doing its
due diligence and perhaps either holding up the project or
suggesting a different routine or saying that you know this
particular forest is to pristine, so you should not
really cut through it at all. All these possibilities are now
ruled out. So the central environmental
ministries powers have been cut. Correspondingly, the Central
Defense Department's powers, you know, go out by by default that
they don't have anymore regulation on top of them.
We also told that the national security things can be
questioned. We are sort of trailing an
adversary like, say, China, because we don't have the same
willingness to do things that say a China is.
Why would you argue that even a defense project needs that
examination by an environmental ministry?
In any democracy, the principle is one of checks and balances.
In any good governance systems, there are principles of checks
and balances. The idea is that I may in all
good faith that as a Ministry of Defense or the Ministry of
Irrigation or the Ministry of Power propose a project thing.
The country absolutely needs this coal mine, needs this dam,
needs this highway, needs this security infrastructure.
But you have to have the views of other stakeholders tabled and
their views considered in a balanced manner.
So the FCA process was allowing the Ministry of Environment to
incorporate its views. And frankly, there is almost no
example in front of us where some national security projects,
some incredibly important national security project was
enormously delayed because of the Ministry of Environment
putting its put down and saying no.
So this is just a bogey. This whole story about delays,
the whole story about denial, there is no evidence of such
denial. There may be evidence of delays
because obviously if you have a process, you have to complete
the process that will take time. Ill give you the example of
mining projects that required more than 100 hectares of forest
diversion. From 2009 onwards, and we were
looking at to what extent FRA was complied with.
Between 2009 and 2018 there were 128 mining projects that
required more than 100 hectares of forest diversion and we asked
the question first of all, how many were denied forest
clearance and they were like 7 which were denied.
Forest clearance. In a few cases the project was
withdrawn for some other reason and a few cases they were denied
on some other technicality. In no cases were they really
denied because the forest was too important to lose.
In no cases were they denied because the local community did
not give its consent, because there was number process through
which local consent was really sought in spite of the Niyamgiri
judgment. So we are looking at a forest
clearance process which is as it is heavily compromised.
Now you're basically just saying that we, we don't even want this
very weak process anymore. The Ministry of Defense will
decide what is important and nobody else will, will ask any
questions, even to the external saying, well, can you route the
highway differently, don't go through this ecosensitive area,
maybe take a different route, Nothing.
There are going to be absolutely no other opinions sought.
I think that's a problem if you're saying that the center is
giving more power to the states to decide how to go ahead, isn't
it? Like, I know this is a slogan
that's now been ditched by even the World Bank, but wouldn't it
fit within that ambit of ease of doing business in some senses?
Oh, absolutely, absolutely. I mean the overall intent of of
the central government over the last 10 years has been ease of
doing business. When in 2014, Prakash Raodekar
became the Minister of Environment, he openly said that
ease of doing business was the main goal.
And when they celebrated one year of the regime in 2015, you,
the Ministry of Environments website, was basically
celebrating how they had speeded up environmental clearances and
forest clearances when Anil the Way took over as Minister of
Environment. After that, he held a meeting of
all the chairs of the environmental clearance
committees, the various committees that deal with
various kinds of projects, and he told them very categorically.
And I was there in the meetings, since I was a member of one of
the environmental clearance committees at that point that
read my lips. My government's motto is ease of
doing business. So it was very open.
It was not at all implicit. It was very open that the
government's foremost focus was ease of doing business, and
anything that came in the way was seen as a hindrance.
And environmental reasons for either reducing the size of a
project, changing the shape of the project or occasionally
maybe thinking about saying no to the project were to be
absolutely not tolerated. And do you have an assessment of
what the potential? Cost could be of this.
No, it's very difficult to assess the cost because you
don't know what we have in mind, right, in terms of whether it is
national security, infrastructure in general,
highways, linear projects, dams and so on.
But we are seeing the track record.
For example, in the Northeast, the amount of dam building that
has happened and that is going on and the amount of land that
has been diverted without even applying the FCA process
properly, certainly without local consent, all those and
communities already have rights over there, those lands, but
they have been completely bypassed.
So we can see that happening. The negative environmental
impacts, human impacts, flooding impacts of these kinds of
constructions, dam constructions in the Northeast are well
documented. Now what we have in mind in
terms of the expanded developmental and security
activity, one can only guess what those impacts will be.
We're in conversation with Doctor Sharad Leli about the new
amendment passed by Parliament to the Forest Conservation Act.
As we discussed earlier, one major aspect is the clearance of
forests for projects linked to national security, which can now
take any form. Another major issue is what is
being classified as a forest. There has been criticism of what
India considers forests, given that even plantations make the
cut. Sharad Lili says the big issue
for him is the lack of transparency in the data.
The Forest Server of India's methodology of mapping forests
or estimating forest cover is flawed in the sense that.
They define it as simply 3 cover, any piece of land which
is larger than .1 hectares and having more than 10% tree canopy
cover, which could be an Arika plantation, it could be a
coconut plantation, it could be a rubber plantation.
All gets classified as forest cover and that is I think a
flawed definition and therefore they overestimate forest because
they start including all these plantations which are most of
the time on private lands. But the other way of also
looking at it is that. We shouldn't get hung up about
again a binary definition of forest and non forest because
forest comes in different shapes and sizes and these different
forms of forest have different, you know, implications for
benefits. For example, the forest
department has historically cut down natural forest and created
tea plantations or monocultural Sal areas.
So you have a whole range of vegetation types which have
different levels of benefits when it comes to biodiversity or
local livelihoods, carbon and so on.
And so it's better to actually, for what forests should be
doing, is giving us much more detail in terms of different
types of forest cover or tree vegetation cover that exists on
the landscape. What are the percentages, what
are the area where do they occur?
Putting their maps into the public domain on top of Google
Earth so people can also cross check and maybe point out errors
and not get into this binary of forest non forest.
Because that is actually not a very productive way of thinking
about the problem. The forest as a source of
resources, as something that we need because as a nation that
has to cater to so many people we need those resources.
What is your argument for preserving forests in the way
they exist, rather than disturbing them?
So I think we cannot take a binary perspective of
undisturbed forest versus no forest.
There's a whole gradient because forests provide benefits to
different kinds of stakeholders. From the local forest dweller,
maybe Adivasi who depends on the forest for firewood, for
grazing, for medicinal plants or non forest products and so on to
let's say farmers downstream who depend upon the catchment being
closed by forest in order to regulate these stream hydrology.
Of course, we now talk about the importance of forests from a
biodiversity perspective, which is important for the nation as a
whole or even for the world. And now we talk about forests
being carbon repositories of carbon and therefore important
in the context of climate change.
So forests have multiple benefits.
If local communities have to use forests, they will change the
nature of forests. Forests in India have never been
pristine. Local communities have always
used them and modified them. But there is a sharp difference
between a modified forest and a completely deforested piece of
land in terms of the environmental benefits that come
from either a pristine or a modified forest versus the
impacts that are completely barren or mine piece of land
will have in terms of soil erosion, of course, the loss of
biodiversity, loss of all the benefits for local communities,
the loss of the carbon sequestered and so on.
Obviously one has to strike a balance between developmental
needs and environmental needs. Perhaps 5000 years ago a much
larger fraction of the the Indian peninsula was covered
with forests as compared to today.
So we have overtime reduced forest cover.
The question now is we have reduced it already to 24% of the
of the country. The real forest cover might be
more like 1718%. Do we want to lose even those
parts, especially the forests that are on slopes?
In the geologically sensitive Himalayas, harboring the what
little biodacity that remains, or what little wildlife that
remains, and still continuing to be important for local
communities for their livelihoods, do we want to
sacrifice what this what remains of this forest for the sake of
projects whose developmental benefits need to be very
carefully evaluated? Sharad Lili says the issue isn't
really about whether development should happen or not.
The issue is what cost the development of progress comes
at. So nobody denies that for
instance a dam may have some mitigation benefits or a mine
may have some benefits in terms of coal thermal power
generation. Question is who benefits from
that and who pays the cost and how much is that benefit that's
actually trickling down and I think coal thermal power is a
really good example where the. Benefit goes to the
industrialized economy, It goes to the urban centers who draw a
huge amount of electricity for their air conditioning by the
local Adivasi is not even getting six hours of electricity
for a bulb that might be lighting their house, let alone
anything else, right? So the benefits are distributed
extremely lopsidedly. And as we privatize mining, for
instance, the profits from mining are much more going to
the private sector, not even going into the national coffers.
One need to question that the definition and the nature of
development that is being promoted blindly and forests are
seen as an obstacle to that development.
You've been critical of this scheme of a forestation, which
is that you cut a forest and you plant one, say elsewhere to make
up for it. Could you explain how successful
such plans have been and why do you believe it's it's not as
effective as we like to think it is?
The idea of compensatory if a forestation was the feeling
that, well, if we lost forests here at least we have gained it
elsewhere. It is flawed because after all
if you lose a natural forest planting or usually a single
species stand of eucalyptus or something or some fast growing
species is not a replacement for the natural forest you lost.
It's not the same level of biodiversity, it's not giving
the same level of soil conservation or the local
benefits and so on. If you're decided that this
particular project needs to go ahead, then the compensatory
forestation is just a little bit of a salve to make you feel a
little better that you haven't lost everything.
The problem also comes in implementation.
How do you implement compensatory forestation?
For a long time, the compensatory plantation were not
being carried out. The court also looked at these
issues at a later point in the 2000s.
They found that the, you know, the money was collected for
compensatory afforestation, but the actual planting didn't
happen. There are additional problems
that the planting happens on community lands, completely
ignoring what communities are using those lands for.
Maybe those are grazing lands, and in the process the forest
department would notify that as forest and bring it under its
control. So the forest department would
increase its estate through the method of compensatory
afforestation and communities would lose access to.
Common lands that they were using for grazing and other
activities, and of course they were not consulted on diversion.
They were not consulted on taking away their lands for
compensatory afforestation either.
So this is a problem in terms of the method through which both
diversion takes place and compensatory afforestation takes
place. Sharad Leli says that a big
issue now is the amendment to the rules in 2022, which says
you can plant trees in a completely different place to
compensate for forest land that you may be clearing.
You have liberalized through the amendment last year to the
forest conservation rules that in fact you can do compensatory
afforestation anywhere in the country where anybody can go and
create a plantation. And then say this is now
available for some company to offset or to show as their
compensate afforestation project for the land that they are
demanding from the forestry state.
So the latest example was the Nicobar Island case, where the
government is going to destroy. Really unique tropical
nickelberry's forest and say that the compensatory first is
going to happen in Haryana and there is no comparison between
these ecosystems, right. Whereas earlier there was at
least a requirement that you do the compensatory forest station
in the same district, Now even that possibility is kind of gone
when you have anything can compensate for anything
anywhere. In addition to all the issues of
monitoring whether it actually gets done, #1 and #2, the social
issue of whether local communities land are being taken
away in the name of compensate aforestation, are they being
asked whether they're willing to let it go?
None of that is happening. So that's like the largest set
of issues around compensatory aforestation.
One more thing you did flag is the aspect of Zoos and Safaris.
In forests, I wanted to understand why you would object
to that Because for most urban dwellers, that is the idea of
the jungle or a forest. Because we don't quite even
understand when we are looking at a forest and when we are not.
Why would you argue that it's a flaw to allow them in all
forests? So let's separate zoos and
safaris a little bit. Zoos are a very Western.
Construct, which is now being very heavily questioned in the
West. By the way, should you have zoos
at all? So the idea was that, well, you
know, urban dwellers have no idea about the beauties of
wildlife that is out there, whether it is zebras or giraffes
and rhinos and tigers and so on, and they cannot otherwise see
them anyway. So bring them and put them in
cages and make them visible to city dwellers to see.
The animals suffer a lot because of that, but keeping that aside
for a moment. You can see that the idea of a
zoo is to make wildlife visible to those who do not have access
to wildlife otherwise. So it's one thing to talk about
setting up a zoo in the middle of the city of Delhi or whatever
it is, Guwahati or somewhere where that the urban dweller can
actually see some wildlife. Why would you want to set up a
zoo inside forest land? If that forest contains
wildlife? You go and try to see the
wildlife. Get onto a Cantor or get into a
Jeep and drive the game road and try to see the wildlife.
If the forest doesn't contain wildlife, then what?
You're asking city dwellers to come all the way to the forest
and then see some curated wildlife which doesn't exist in
the natural forest. So it's kind of a false
pretence. And that same argument extends
to safari, where you people put people in well protected
vehicles and then take them into an area.
It's a very large caged enclosure, a very large
enclosure. The animals are able to move
around much more than they would do in a zoo.
But you're bringing animals from somewhere and keeping them in
that enclosure. They're typically not local
because if they were already tigers in that forest, you would
say, well, set up a safari to go into the forest switching,
basically go on the game roads, which is already happening.
You don't need to do any further deforestation for that.
A major justification for this act is to ensure that those
living near or in forests also receive the benefits of economic
development. In this context, the Neem Giri
case is an important one. The Niyamgiri case of Odisha was
one of those cases that defined how forest dweller should decide
the fate of the forest and the lands that they rely on.
The Niyamgiri hill range was to be the site of a Vedanta
refinery for bauxite, the compound from which the metal
aluminium can be extracted. The project was opposed by the
110 villages in the area, where 2 tribes believe that the hill
is the residence of the God. After the project was blocked by
the environment ministry since the forest residents did not
clear it, the Supreme Court stepped in to say that it could
only be cleared by the villages living around the proposed
project. The villagers voted against the
project and the court later rejected a proposal to have a
fresh vote there. At the time of the protest
against the project, the agitation was compared to the
Hollywood film Avatar, where a race of blue aliens seeks to
protect their world from greedy humans.
But such a case may not play out again.
Sharad Lily explains how the rules have been steadily amended
to ensure that local communities cannot easily block such
projects in the future. One aspect that you mentioned a
lot throughout is the forest dwellers and people who live
near forest. There are multiple issues that
have been flagged Overtime. I have they got anything out of
this new version of the law given it's been an issue now for
over 30-40 years so. If one looks at the.
Latest Forest Conservation Amendment Act 2023.
It's not directly affecting forest dwellers rights and so on
directly. Earlier the Forest Conservation
Act required that when you divert land, if communities have
rights on those lands, then communities permission is
required now because you have exempted a certain fraction,
possibly 20% of the land from coming under the purview of the
forest conservation. Act during diversion process,
then, correspondingly, communities may not get asked at
all. You know when the diversion
happens. Although technically, even if
there was number Forest Conservation Act, once a
community's rights are recognized on a piece of forest,
somebody wants to divert that forest for whatever it might be.
Obviously they should ask their community's permission, because
the community is, in a sense, the de facto proprietor of that
land unit, the technically the. Ownership rests with the state.
But the chances of that happening was strengthened if
there was a FCA process in place which enshrined the FRA into the
FCA. And this happened because of the
Mgiri judgment and the earlier order passed by Jairam Ramesh in
2009 which said that since we now have a Forest Rights Act
when communities get right on their forests, then if that
forest has to be diverted, they need to be consulted.
Overtime they diluted that 2017, they diluted it a little bit and
in 2022 last year. They in sense completely, almost
completely eliminated by taking those sections out of the rules
and just having one line saying the process of FRA etcetera will
be done in parallel by the state government.
So you will give permission here for diversion and then you are
saying that the state government will do the FRA process in
parallel. It makes absolutely no sense.
So the loss of the rights of the Community to assert that they
control the forest and therefore their consent is required.
That option I was lost last year itself, and this act further
reduces that possibility by eliminating some lands from even
coming under the ambit of any such process.
But you're saying that essentially something like a
neem giri cannot happen again? Absolutely, Yeah.
I should say that we must read this amended act in tandem with
the amended rules of 2022 and see how they are all part of the
same process of dilution the 2022 rules focused heavily on.
In a sense getting rid of the community consent or creating
space to bypass it a de facto plus they focus on this issue of
accreditation. Any plantation anywhere can
become a compensatory plantation and so on.
That was the main 2 focuses of the amended rules.
And on top of that now you have an amended act which says that a
Godavaram judgment needs to be quote UN quote fixed.
It created too much ambiguity and then it goes on to do
something which doesn't address the ambiguity anyway, it just
gets rid of. The protection of the FCA to
these de facto government owned forests that have, for whatever
reason, been recorded in some other name.
In the end, Sharad Leli says the new amendment is just the latest
push against safeguards that have already been weakened over
the years. Given all of this is being done
in the name of national security and development, he says we need
to consider the cost it's coming at.
This amendment for the weakens what was already weakened in the
amendments to the rules last year.
It just makes it defect sort of de jure what was already
happening de facto, which was that the forest clearance
process hardly ever held up a project or hardly ever rejected
a project. At best they might hold it up,
ask for some changes here and there.
So the clearance process was weak anyway and it's been
dramatically weakened now. I think that's a larger question
of what does it mean? When our government is pushing
the idea of national security and this very vague and fuzzy
idea of development at the cost of environment so brutally, it's
something we all need to ponder about.
Today's episode was produced by Jayaraj Singh and Anuja Singh.
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