For long, we have marvelled at the lush wet forests of the Western Ghats or been awed by the majestic conifers in the Himalayas. But for more than 40 years, forest officials in India have been grappling with one question: What is a “forest” in actual terms?
In 1980, the Indira Gandhi government passed the Forest (Conservation) Act, which prohibited the use of ‘forest land’ for ‘non-forest’ purposes without permits.
Another question arose: What is ‘non-forest’? The answer came in 1996 when the Supreme Court declared that the word ‘forest’ in FCA should be understood as per its ‘dictionary meaning’. Debating the legal meanings of a forest appears trivial, but it has far-reaching consequences for our country.
An important note before going further. Saying that a forest is protected under FCA does not imply that it cannot be logged at all. Even the most passionate nature lover will agree that is impractical. Rather, what the FCA ensures is that individuals and business groups cannot simply walk into a forest and start cutting down trees on a whim. Instead, they have to obtain a licence, just the way building permits are required in urban areas. The process is complex, even tedious, but it is an integral part of the legal systems of most countries. The FCA process in India is far from perfect, but it is currently the only protection our forests have.
On 4 August 2023, President Droupadi Murmu gave her assent for the Forest (Conservation) Amendment Act 2023, which will change the core tenets of the legislation. The new amendment severely restricts the scope of the FCA to cover only forests that are either officially ‘notified’ or are recorded in government documents after 1980 (but not converted to non-forest use before 1996). This seems perfectly reasonable until we take some practical points into account.
Also read: India experimented with tree plantation for 200 yrs. Foresters must learn from past mistakes
Do we really know our forests?
Historically, the British believed that forests had the sole purpose of providing wood for industrial production. So, not only did they destroy large parts of our dense native forests and convert them to teak and sal plantations, but they also did not classify areas without high timber value as forests. For example, shrub forests, like those in Kachchh, were commonly classified as ‘waste land’. Even after this attitude officially changed, issues like technological challenges and legal disputes led to serious limitations on the accuracy of forest documentation. Also, a forest may have been officially ‘converted’ to non-forest use on paper before 1996, but project delays or court orders may have ensured that the actual forest still stands. This means that even if you see a ‘forest’, there may be no government record of it at all as a ‘forest’. As per the 1996 SC judgment of using ‘dictionary meaning’, this forest would still be under the protection of the FCA.
With the new amendment, that protection is taken away. We don’t know how much of India’s real forests are officially documented. And now, we may never get to know it all — with the amendment, all of these forests can be chopped down without any permit.
The amendment creates further exemptions. Forests near railway lines and roads up to 0.1 ha are no longer covered. This seems minor. But, if you have travelled in South India, you will know that India’s extensive rail and road network cuts through the beautiful dense forests of the Western and Eastern Ghats. The exemption means that a forest in the Ghats, which is the size of 60 football fields, can simply be cut down without any assessment or permit.
Even more alarmingly, forests within 100 km of international borders are exempt. Consider that all of North and Northeast India is bordered by five different countries. This exemption essentially means that there is no permit required to cut down any of the Himalayan forests, from Ladakh to Bihar to Arunachal Pradesh (and forests of most of the Northeast states) if it is for a ‘strategic purpose. ‘Strategic purpose’ is not defined or explained in the Act.
Going back to British era
The other part of the equation is ‘non-forest’. The amendment exempts any work that ‘relates to’ or ‘is ancillary to’ conservation (which isn’t defined or explained), citing ecotourism as an example. Research from around the world has shown the heavy negative environmental impacts of tourism, even if it has an ‘eco’ tag. The extent of the impact may be invisible to us as tourists but is felt by the local people and the ecosystem.
The impact will be even more drastic in the rich forests that attracts tourists. Of course, it is possible to manage them. But since ecotourism is now exempt from the FCA, we can’t even assess its impact on forest ecosystems, let alone mitigate it.
Stella James is an environmental law and justice, and climate policy expert. Views are personal.
(Edited by Humra Laeeq)