- India has recently adopted amendments to its forest laws that have sparked an outcry from activists and NGOs that say the changes severely weaken protections for biodiversity, forests and the people who depend on them.
- However, journalist-turned-activist Soumitra Ghosh says the new rule changes merely codify what had been happening for years: a gradual dilution of the regulatory powers for protecting India’s forest and environment laws, beginning with a system called “compensatory afforestation,” which he says commodified India’s forests.
- Ghosh talked with Mongabay about the history of India’s forest laws, as well as his hopes that despite the “draconian” new amendments, forests will still be protected since their primary authority still lies with the communities that live within and depend upon them.
New amendments to India’s existing green laws in the last couple of years have sparked a fierce backlash from activists, social groups and NGOs across the country. Many have argued that the regulatory powers to protect India’s large forest cover and the people dependent on it were severely weakened in just a few strokes.
Among others, the amendments have handed the Indian government more power to approve diversion of forests for “non-forest purposes” without seeking consent from forest-dwelling communities. Non-forest purposes are defined as clearing forest land for any purpose other than “reafforestation.” In addition, other proposed changes, if implemented, would abolish imprisonment for offenders.
In light of these developments, Mongabay interviewed researcher and activist Soumitra Ghosh, who lends unique insights and perspectives on the amendments — which are not always shared among his peers. He says the changes don’t pose new threats to the environment; rather, they codify practices that have long existed.
To understand Ghosh’s viewpoints, it’s critical to understand the history and background of these evolving laws.
Most recently, the Forest Conservation (Amendment) Bill 2023, which amends the 1980 Forest Conservation Act (FCA), was approved by the Indian Parliament and came into effect Dec. 1 with new rules. While the bill was passed seamlessly with almost zero challenges from the opposition in both houses of the Parliament, it stirred massive controversy among forest and environmental activists and other concerned groups and persons raising serious questions about the amendment.
The amended act is just a page lengthier than its parent, the four-page FCA, even with a preamble and a statement of reasons. But the context is what’s telling. Critics argue that the new rules (known as the Van [Sanrakshan Evam Samvardhan] Rules 2023), along with an earlier amendment to the Biological Diversity Act (BDA), 2002, pose a significant threat to India’s biodiversity. Some estimate the changes to the FCA could potentially open up to 25% or more of the country’s forests for urbanization and industrial projects.
The new FCA eliminates the protection of “deemed forest,” provided by a 1996 Supreme Court ruling that determined any land that conforms to the dictionary meaning of forest must be treated as a forest irrespective of its ownership. In addition to potentially opening lands to development, the amended act also exempts “linear projects” — those involving linear diversion of forest land for purposes such as roads, pipelines, railways, transmission lines, slurry pipelines, conveyor belts, etc.
Activists say tribal and forest-dwelling communities, who depend on forest resources, have been put under threat the most. The amended FCA poses a direct challenge to the 2006 Forest Rights Act (FRA), which recognizes tribal rights to forest resources, activists and experts say.
As written, the FRA “recognizes the rights of the forest dwelling tribal communities and other traditional forest dwellers to forest resources, on which these communities were dependent for a variety of needs, including livelihood, habitation and other socio-cultural needs.” The FRA has required anyone diverting forest land for non-forest purposes to acquire formal consent from local communities that inhabit the forest.
The FCA’s new regulations have done away with that requirement of mandatory consent of forest-dwelling communities when seeking government approval for forest land diversion. Earlier, it was necessary to show “proof of having initiated FRA clearance process” while seeking the first of two required rounds of approval for forest land diversion. India’s central government now has the power to grant the approval and has left it on state governments to check compliance with FRA provisions.
The central government also now has the authority to accord final approval without waiting for the consent of local forest inhabitants. Once the government has given the final approval, the obligation to ensure adherence to FRA regulations now rests with the state governments.
Furthermore, in June and July 2022, the Indian government had proposed amendments, which, if implemented, will dilute penal provisions, including the abolition of imprisonment of offenders, in the country’s parent environmental law, the 1986 Environment Protection Act, and also in the 1981 Air Pollution Act and the 1974 Water Pollution Act.
In addition, in April 2023, the government proposed, through a set of notifications, to exempt certain projects from mandatory environmental impact assessments before beginning work. These projects include expansion of airport terminals, “strategic” highway projects, and mining projects where production capacity can be increased by up to 50% of the existing threshold limit without increasing the original lease area.
Soumitra Ghosh, journalist-turned-activist
Ghosh, a North Bengal-based journalist-turned-activist, has been working on these issues, and he has a different take from many of his peers on the current situation. He spoke at length with Mongabay about the newly amended FCA, and in his mind, these amendments existed on the ground, in practice, for a long time before they were brought into force.
Ghosh said it’s a misconception that India’s biodiversity was very secure before these recent amendments came about, as the Indian government had been gradually weakening the country’s green laws for years through various methods. The latest amendments have formalized and completed this gradual dilution of the regulatory powers for protecting India’s forest and environment laws, according to Ghosh, who took to environmental activism by opening up an NGO in the 1990s. The NGO didn’t run long due to shortage of funds, but Ghosh has remained steadfast in his work as an activist.
He said the weakening of India’s green laws began with the introduction of compensatory afforestation (CA). Under this system, when forest land is diverted for non-forest use, the company undertaking the project must pay the state forest department the necessary funds to carry out afforestation. Ghosh, who has been involved with the World Social Forum and traveled to Brazil and South Africa to study how environmental and forest rights movements take place around the world, said the CA system, for the first time, commodified India’s forests.
A strong believer of people-led social movements, the sexagenarian called the recent amendments another effort by the government to take away the rights of tribal and forest-dwelling communities over their forest lands. Ghosh was brought up in a small town in the foothills of the Kangchenjunga mountain range of the Himalayas. Both his parents were political activists and nature lovers. “Politics and nature ran parallel in my case,” said the activist, who initially had plans to make films about forests and forest-dwelling communities.
He added that his earlier life experiences of visiting forests and meeting people living there led him to believe that if forest-dwellers could exercise the rights given to them under the FRA, no authority would be able to take away their land.
In the early 2000s, Ghosh was a prominent face in the nationwide movement for the FRA, which was eventually introduced by the Indian government in 2006 with the aim “to undo the historical injustice occurred to the forest-dwelling communities.” Now Ghosh, who had declined the government’s initial invitation to join a technical committee to draft the act, was quick to note that the current BJP leadership in the central government is challenging the act’s entire provisions.
The following excerpts from Soumitra Ghosh’s conversation with Mongabay have been edited for length and clarity:
Mongabay: Why don’t you sound concerned about the recent changes to India’s environmental and forest laws while many activists and concerned people have called these changes a serious attack on the country’s “hard-fought environmental jurisprudence”?
Soumitra Ghosh: It’s not that I am not concerned, but I don’t think the recent amendments can pose any new threats that we don’t know about if tribal people and forest-dwellers come together and collectively build a movement to protect their forests.
Mongabay: What about the direct loss of India’s green cover due to the changes? For example, the new FCA doesn’t consider what was earlier called “deemed forest” as forest. The amendment has also exempted linear projects. The new provisions will certainly put India’s rich biodiversity under great threat, don’t you think?
Soumitra Ghosh: It wouldn’t be right to assume that India’s biodiversity was safe till these amendments came in the last one or two years. To get a sense of why I say that the process to dilute the green laws began a long time back, you will have to first understand how the system of compensatory afforestation (CA) works in India and what it did to our forest lands. According to the Forest Conservation Act, CA is required when forest land is used for non-forest purposes. Ideally, it [replanting] should be done on non-forest land near protected or reserved forests. If such land isn’t available in the same district or state, the company must fund CA on double the diverted area. For some government and minor projects, CA can be done on degraded forest land twice the forest area being diverted.
Mongabay: How did it begin the process of diluting the regulations meant to protect and conserve India’s biodiversity?
Soumitra Ghosh: Despite the good intentions of the FCA, the provision of CA, in its current form, has officially commodified forest. The insistence of the Supreme Court from the mid-‘90s that CA could not adequately replace the biodiversity content and environmental services of natural forests and, therefore, they must be valued and paid for, led to the introduction of net present value (NPV). But in reality, this allowed companies to purchase forest lands by paying the NPV.
Every incident of forest diversion meant payment to the government of the state where the diversion was taking place. The more the diversion, the more money state governments earned. But the Supreme Court intervened again and established a “Compensatory Afforestation Fund (CAF),” where [money received toward] the NPV, like all other CA funds, were to be deposited. A regulatory body called the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) was tasked with managing CAF.
The reason I said all this is to give you a picture how the FCA was made unessential by introducing the provision of NPV. If the government thought that protecting biodiversity was important and brought the original act to conserve forest, why give anyone the option to buy it? The FCA was riddled with holes after all caveats were removed. The new amendments have merely made it official.
Mongabay: But you mentioned that paying the NPV is not the only step that a user agency has to undertake while diverting forest land for non-forest purposes. In addition to providing land or money for compensatory afforestation, the user agency pays the NPV and a centralized fund ensures that it is used for “natural assisted regeneration, forest management and protection, infrastructure development, wildlife protection and management, supply of wood and other forest produce saving devices and other allied activities.” So, doesn’t this system guarantee that development projects take place while the size of India’s forest cover is not reduced?
Soumitra Ghosh: Yes, the intention might have been good, but where is the land to do compensatory afforestation? And who is paying the price? India is losing its traditional forest cover continuously to industrial and other non-forest usage, but sufficient compensatory afforestation has not taken place due to unavailability of enough land. To put in use the thousands of crores [10 million in the Indian numbering system] of funds deposited in CAF, compensatory plantations are either raised in other faraway states or land is being grabbed by forcefully evicting tribal and forest-dwelling communities.
There are two major problems with that. First, scientific studies have shown that the rich biodiversity of a forest cannot be replicated by a monoculture plantation. Young saplings planted elsewhere cannot ever be the solution to the destruction of traditional forests that grew for more than centuries.
Before I go to the second problem, you have to remember CA has to be legally done on non-forest land near protected or reserved forest or on degraded forest land. But India’s vague forest definition often leads to tribal communities being displaced for CA from “non-forest” land, disrupting their traditional lives and livelihoods.
However, despite the Supreme Court’s declaration in the landmark 1996 Godavarman judgment to consider deemed forest as forest, not many things changed on the ground, and the government fails to do compensatory afforestation that can sufficiently compensate for the loss of biodiversity caused by the destruction of forest. The amended act will significantly increase incidents of land-grabbing outside of notified/recorded forests. Interestingly, lands that qualify for compensatory afforestation now include village lands as well from where communities have “voluntarily” relocated themselves.
Mongabay: Why didn’t things change on the ground despite clear orders by the Supreme Court of India? I can understand that now with new amendments it would be difficult to protect communities living in deemed forests. But before the amendments, what conspired on the ground for the Godavarman judgment to not be implemented? Also, by 2008 the FRA not only recognized the rights of forest-dwelling communities over forest lands but also made their consent mandatory in cases of diversion of that land for non-forest purposes.
Soumitra Ghosh: Before FRA, the first incident that really caught everyone’s attention about how forest-dwelling communities were forcefully removed from their land was Vedanta’s bauxite mining project in Odisha’s Niyamgiri. Despite the Central Empowered Committee’s (CEC) scathing 2005 report to the Supreme Court that the MoEFCC [Ministry of Environment, Forest and Climate Change, formerly known as the Ministry of Environment and Forests] had wrongfully given clearance for the project in violation of the FCA and the 1986 environment protection act, the apex court initially refused to revoke the forest clearance provided to the company.
Meanwhile, the environmental clearance was also given. But locals in Niyamgiri refused to back up and mounted a strong transnational social movement. As pressure grew, the MoEFCC’s review of the mining project revealed violation of several regulations. That led to the cancellation of both forest and environmental clearance of the project in 2010 and 2011, respectively.
In 2013, the Supreme Court rejected the Odisha government’s appeal to reverse the [government’s] decision. The court also gave the landmark judgment that the local tribal communities would have the decisive say in allowing Vedanta’s mining project, upholding the FRA. All the local gram sabhas [rural village assemblies, made up of all adult residents as mandated by the FRA] refused to give their consent and the project was scrapped.
In the meantime, an MoEF circular in 2009 stated that no diversion of forest land would be allowed without the consent of gram sabha. But in February 2013, MoEF declared that the gram sabha’s consent wouldn’t be required for diversion of forest for linear projects. However, after initial agreement, the Ministry of Tribal Affairs, the nodal authority of FRA, said otherwise; that the gram sabha’s consent would be mandatory for linear projects as well. Rules of the FRA remain the same, as the act has not been amended. As a result, gram sabhas still have the authority to decide if the forest land would be diverted or not.
Mongabay: But now the new amendments have also exempted linear projects. For other projects as well, forest clearance could be acquired even before the gram sabhas give their consent. So the protection provided to tribal and other forest-dwelling people living in the forest and even in what was earlier “deemed forest” has been removed, right?
Soumitra Ghosh: No, because FRA and FCA are two different acts. MoEFCC, the regulatory body of FCA, cannot dictate where FRA is applied and where it won’t be because FRA is under the ambit of the Ministry of Tribal Affairs.
This process of diluting the provisions of FRA to make way for diversion of forest land for industrial purposes is also not new. Before bringing in this amendment, MoEFCC time and again tried to bypass the gram sabha through departmental circulars. Even before the new FCA rules became effective on Dec. 1, the MoEFCC stated in 2019 that the gram sabha’s consent was not required for [the initial] Stage I ‘in-principle’ forest clearance. Then the forest conservation rules in 2022 had also eliminated the need for mandatory consent of the gram sabhas while seeking approval for forest clearance. Forest administrators and bureaucrats always follow the latest departmental orders, and as a result, the gram sabha had practically been made irrelevant even before the amendments.
In the 2023 rules, it is mentioned that actual handover of forest lands, that is the Stage II final approval, will be subject to fulfilment of and compliance with statutes, including FRA. In practice, this won’t mean anything. Through the amended FCA, the entire provisions of FRA have been challenged.
But again, I am saying that MoEFCC cannot decide what the role and limit of the gram sabha will be. That is also the reason why I am hopeful that despite these draconian amendments, India’s forests can be protected because their primary authority still lies with forest-dwelling communities.
Despite MoEFCC’s multiple attempts to imbibe FRA with FCA or to bypass FRA-mandated gram sabha through departmental notifications in the last decades, you can see that projects where forest-dwelling communities were able to exercise their rights under the FRA, the governments and project-making companies had to backtrack.
Banner image: An Indigenous woman walks with her son inside the Ajodhya Hill and Forest Reserve in West Bengal, India. Image by Niladry Sarkar.
Can India’s Forest Rights Act deliver? Odisha state is trying to find out
Credits
