FCA amendment: No forest for the weary

A freshly passed amendment to the Forest Conservation Act has created a stir among ecologists, parliamentarians and stakeholders. With several contentious provisions, the amendment reveals an afforestation push where rights and justice take a backseat to commercial interests.

This week, amidst a raucous monsoon session, the Indian Parliament saw the passage of several consequential pieces of legislation in quick succession. Among them was the contentious amendment to the Forest Conservation Act (FCA), which was voted into law this week—passing Lok Sabha on July 26 and Rajya Sabha on 2 August. Speaking in favour of the amendment in the Rajya Sabha, environment minister Bhupendra Yadav said that the amendment would bring development to tribals and forest-dwelling communities as he referred to new exemptions from forest clearances for public utilities.

There is, however, more to this development than meets the eye. What is the significance of this amendment with regards to the country’s international commitment to create an additional carbon stock of 2.5-3 billion tonnes by 2030? How does it affect India’s carbon stock management as it charts out a path to net-zero emissions by 2070? Who will be the winners; and who are the losers?

Journey to legislation

The amendments first surfaced in late 2021 in the form of a consultation paper floated by the environment ministry. Following this, the Bill was introduced in Parliament in March 2023 during the Budget Session. After failing to pass it in the first attempt, the Bill was tabled again in the ongoing Monsoon Session and the Forest Conservation (Amendment) Bill, 2023 passed both houses of Parliament through voice votes. Following challenges to the Bill in the Budget Session, a 31-member Joint Parliamentary Committee (JPC) was formed to look into it, presided over by BJP Lok Sabha member Rajendra Agrawal. On July 20, the JPC submitted its report to the Parliament, clearing the proposed Bill without any change and accepting the environmental ministry’s explanation for amending the 1980 Act. 

According to the report, the JPC received 1,309 memoranda along with comments from multiple state governments, departments and ministries and four notes of dissent from opposition MPs. Congress MPs Pradyut Bordoloi and Phulodevi Netam, Trinamool Congress’ Jawahar Sircar and DMK’s R Girirajan gave their written dissent on issues like lands to be covered under the law, potential threat to bio-sensitive areas and rights of forest dwellers.

The Members of Parliament also received a letter signed by more than 100 former civil servants, members of the Constitutional Conduct Group (CCG), outlining their concerns regarding the Bill’s content and the procedures being used to pass it. The letter noted the fact that the Bill was referred to a Select Committee rather than the Parliamentary Committee on science, technology, environment, and forests. “Procedurally, the Bill should have been referred to the Parliamentary Committee on science, technology, environment and forests, instead of being referred to a Select Committee, all the members of which, except one, belong to the ruling party, making the examination partisan and unsatisfactory,” reads the letter.

This claim was echoed by opposition MP and Chairperson of the Parliamentary Committee on Science and Technology, Environment, Forests and Climate Change, Jairam Ramesh. “By referring the Bill to a joint committee, the government is deliberately by-passing the Standing Committee, which would have subjected the legislation to detailed examination with the full participation of all stakeholders”, he wrote. 

Why the furore

There are several amendments proposed to the FCA that have created a stir among ecologists, Parliamentarians and stakeholders. 

To begin with, the act’s new name—‘Van (Sanrakshan Evam Samvardhan) Adhiniyam’, struck a discordant note with some. One of the objections to this new name is that it is “non-inclusive” and excludes people from the south and north-east of the country. The word “samvardhan” also raised eyebrows as it refers to development rather than conservation, which is the objective of the Act. 

The discontent over the name, however, pales in comparison to the reaction to more substantive changes introduced in the amendment. Prime among these is the limit it places on the Act’s applicability. According to the amendment, only lands recorded by the government as forests as on or after 25^th October 1980 will be required to abide by the FCA. This runs contrary to a 1996 Supreme Court judgement in the Godavarman Thirumulpad v.Union of India case that stated the FCA is applicable to land covered under the dictionary meaning of forests or those unofficially considered to be forests with no reference to any cut-off date. 

The Forest Survey of India’s latest report states that 5,16,630 sqkm of the forests are within Recorded Forest Areas, while 1,97,159 sqkm lie outside Recorded Forest Areas. Under the new amendment, the latter (which make up 27.62% of India’s forests) will lose all protection.

Exemptions galore

The new amendment proposes the removal of forest clearances for security-related infrastructure projects that lie within 100 km of international borders. Ecologists have pointed out, in their letter to the environment ministry against the amendment, that these areas are some of the most ecologically sensitive in the country. Some of them are deserts in Ladakh, and forests in Uttarakhand and Himachal Pradesh. These form natural barriers, especially against increasingly uncertain weather patterns. In their letter, ecologists urged the government not to give up ecological security for the sake of military security. 

Northeastern border states Sikkim, Mizoram, Tripura, and Nagaland, and others like Himachal Pradesh registered their opposition to this exemption in JPC report tabled before the Parliament.

In non-border areas, land up to 10 hectares (and 5hectares in areas affected by left-wing extremism) can be used by the central government for not just defence-related projects but also public utility projects.

According to Supreme Court advocate and founder of the Indian Civil Liberties Union (ICLU), Anas Tanwir, the amendment allows Centre full authority to permit the usage of forest land however it feels fit while also keeping reconnaissance, prospecting, investigation, or exploration activities outside the purview of the FCA. This, Tanwir says, is a naked violation of National Forest Policy, 1988 (NFP) which lays the foundational principles for commercial exploitation in forest areas.

Perhaps even more egregious to conservationists is that the amendment exempts agro-forestry plantations, zoos, safari parks, ecotourism, and certain kinds of mining from environmental clearances. Environmentalists have argued that equating zoos or safaris with forests is dangerous because while the former does promote conservation and education, it cannot replace the latter. The Supreme Court, through a judgement delivered earlier this year that stayed all construction within core areas of national parks, seems to concur with this assessment. Plantations and ecotourism, they argue, can also lead to large-scale construction that may destroy natural habitats and ecosystems. 

The exemptions in the Bill are given on the condition that the lost or diverted forest land will be compensated for with the planting of trees elsewhere in the country. But experts have pointed out tree planting cannot be a substitute for forests. They highlight the need for a clear distinction between “forestland” and “green cover”.

Importantly, the amendment seemingly goes against the provisions in the NFP, which states that permissions granted to activities ancillary to conservation practices can be misused and must have sufficient reasoning to prove its necessity in implementing forest management and wildlife conservation. Provisions in the new FCA appear to contravene this condition.

Cutting out the custodian

Things get murkier when we approach the domain of rights guaranteed to adivasi and forest-dwelling communities under established legislation, and how they are affected by the fresh amendment. Take the Forest Rights Act (FRA), 2006, for instance. The FRA grants affected gram sabhas and forest-dwelling communities the rights to protect wildlife and biodiversity. For any project to get a forest clearance nod, consent from the Gram Sabha is a must. But ecologists fear that the clearance exemptions under the FCA amendment will significantly erode these rights completely.

“The most worrying aspect of the FCA is the de facto elimination of participatory process, which leaves almost complete power with the state. The Compensatory Afforestation Act (CAMPA) brought the first big change to this process by reducing the role of the gram sabhas to a consultative one rather than an approving authority. This goes several steps forward by practically removing gram sabhas from the process altogether,” explains Arpitha Kodiveri, researcher of environmental law and incoming Assistant Professor of Political Science, Vassar College.

The main text of the FCA is silent on other laws and constitutional guarantees for the protection of the rights of adivasi communities and other traditional forest dwellers. Only the newly inserted preamble mentions “enhancing forest-based economic, social and environmental benefits, including improvement of livelihood of forest-based communities”. It does not mention any term aimed at conserving, protecting, maintaining, or managing forests, but rather creates new avenues to bypass processes and systems laid down in earlier legislations aimed at conservation. By minimising the voice and stake of forest-dwelling communities and affected tribal populations, the revenue from compensatory afforestation will also not reach those who stand to lose their lands, resources and livelihoods to non-forestry activities.

“This is the time for the government to reaffirm its commitment to protecting the country’s immense biodiversity. Doing so will require strengthening forest protection laws and the rights of indigenous peoples to own and manage their lands. This Amendment will only seek to hasten the decline of India’s natural forests,” states a strongly-worded letter written by more than 400 ecologists to the environment minister Bhupendra Yadav before it was tabled in the Parliament. The minister, during the discussion, responded by implying that the FRA will remain unchanged and its implementation will happen independently.

“While the FCA falls under the domain of the environment ministry, the FRA and its implementation is the responsibility of the Ministry of Tribal Affairs (MoTA),” explains Tushar Dash, an independent researcher on forest rights from Odisha. “It is difficult to imagine that the FCA amendment will not have any effect on the implementation of the FRA, and we’ll have to see how the MoTA addresses these implications. So far it has been silent,” he adds.

The minimisation of affected communities in decision-making and the weakening of participatory process in forest management also runs contrary to evidence-based conservation. Recent research has shown that increasing the formal political representation of Scheduled Tribes (ST) led to an increase in tree canopy density and reduced the rate of deforestation. Researchers found that the Panchayat Extension to Scheduled Areas Act (PESA) and other rules that recognise Scheduled Areas where STs live are instrumental in increasing forest conservation. According to the study, with PESA, the tribal communities could pursue better economic interests and translate them into better forest conservation. Representation empowered them to stall deforestation spearheaded by industry and collect and sell non-timber forest products, thereby improving the overall health of forests. 

The question of carbon

All this brings us to the question of carbon. The amendment has been passed into law at an interesting juncture. India, committed to increase forest cover and add carbon sink equivalent to 2.5-3 bn tonnes by 2030, is running out of time to meet this target.

“Since the formulation of the carbon sink target, which itself is based on questionable science, we have seen a shift in decarbonisation strategy from actual emission-heavy sectors to land, land-use and forestry. This in essence, is becoming a kind of green-washing exercise in the name of climate action,” says Dash.

Nevertheless, the government has made no secret of its hopes that the FCA amendment will facilitate afforestation and the creation of additional carbon sinks by freeing up the economic value of forests. Meanwhile, the commodification of carbon is well and truly underway; and the FCA cannot be seen as separate from this process. 

“Environmental law is conventionally framed in a ‘precautionary approach’ which is built around conservation and protections. The new FCA amendment moves it further towards a ‘compensatory approach’ which in essence facilitates deforestation. If carbon markets are supposed to support the creation and maintenance of carbon sinks, it should be based on more precautions and protections,” remarks Kodiveri.

Nevertheless, pieces are actively being put in place for the generation and trade of carbon offsets through the Carbon Credit Trading Scheme. While the CCTS will cater to meeting regulatory norms for commercial enterprises, the Green Credit scheme is being developed to meet voluntary targets of businesses and individuals for environment-friendliness.

“The incentive mechanisms (like carbon- and green credit schemes) for carbon capture and decarbonisation are deeply flawed and are being proposed in violation of FRA. The vital element of tenure rights is entirely absent in the governance structure and regulatory framework of these,” remarks Dash.

These development of these schemes raise interesting questions when seen in the context of the FCA. While the amendment opens avenues for the participation of commercial interests in creation and monetization of carbon sinks, it minimises the stake of adivasi and forest-dwelling communities in such projects and severely dilutes any claim for compensation from the proceedings derived from the sale of offsets.

“Participation of affected communities has been eliminated under the new FCA. The state, which is an active player in the carbon market, now holds centralised power over the management of the carbon stock in forests. What does this mean now in the context of a carbon market?” asks Kodiveri.

That indeed is the question. If the central government is serious in its assertion that amendments to the FCA will bring development to the most deprived sections of Indian society, it must frame an inclusionary process which recognizes the stake held by communities in maintaining forest commons (and the carbon stock it holds). The matter is not only of economic interest, but also one of ensuring justice in the decades-long process of decarbonisation. Failure to do so will lead only to further deprivation and disenfranchisement under the guise of development.

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Shreeshan V

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