Forest Conservation (Amendment) Act, 2023

Introduction

The recently introduced Forest Conservation (Amendment) Act, 2023[1], by Union Minister for Environment, Forest and Climate Change Shri Bhupender Yadav, is an essential central statute for the conservation of forests in India. It received presidential assent on August 04, 2023.  The Forest Act, 1927, was changed to the ‘Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980’ to reflect the newness of the provisions with which it was introduced. This legislation seeks to modify the Forest (Conservation) Act of 1980 by extending its application to specific categories of land. These include property that has been officially designated as a forest under the Indian Forest Act of 1927 and territory that has been recorded as such in government documents after the enactment of the 1980 Act. The Act must not be deemed relevant to land that underwent conversion to non-forest use prior to December 12, 1996.[2].

Highlights and key provisions of this Act:

The enactment of the Forest (Conservation) Act of 1980 aimed to mitigate the occurrence of extensive deforestation. The central government's consent is necessary for any diversion of forest land for uses other than those related to forestry.

The Amendment Act 2023 amends the criteria for the inclusion and exclusion of forest land within the scope of the Act. Furthermore, it broadens the range of forest activities authorized on forested areas.

1.     The Amendment Act 2023 outlines two specific classifications of land:

(i)             land that has received official designation as a forest according to the Indian Forest Act of 1927 or other applicable laws, and

(ii)            land that does not fall within the aforementioned category but has been officially recorded as a forest by the government on or after October 25, 1980.

Furthermore, it is essential to acknowledge that the Amendment Act 2023 does not extend its applicability to any region that underwent a transition from forest to non-forest exploitation prior to December 12, 1996, as permitted by any state or union territory authority. The Amendment Act 2023 aim to enhance the efficiency of implementing the 1980 Act concerning registered forest lands, private forest lands, plantations, and other relevant areas.[3].

2.     The Amendment Act 2023 includes provisions that grant exemptions to specific categories of property. For instance, forested land adjacent to a railway line or a publicly maintained road that facilitates access to a dwelling, railway, or roadside services is exempted from the regulations outlined in the Amendment Act 2023. These exclusions pertain to land parcels with a maximum size of 0.10 hectares.  The wooded regions that will be granted exemption are as delineated below:

(i)             The acquisition of land situated within a 100 km radius of international borders, the Line of Control, or the Line of Actual Control, is authorized for the purpose of developing a linear project of national significance that is strategically important for national security.

(ii)            Land with an area of up to 10 hectares is designated for constructing security-related infrastructure.

(iii)           Land intended for constructing defence-related projects, camps for paramilitary forces, or public utility projects up to 5 hectares are allocated in areas affected by Left-Wing Extremism (‘LWE’).

(iv)           The Amendment Act 2023 includes several exemptions to promote afforestation and planting activities beyond forested areas. [4].

3.     The Amendment Act 2023 expands the provision that mandates state governments to get prior consent from the central government before transferring forest property to any non-governmental body to encompass all enterprises, irrespective of their ownership or control by the government.  Additionally, previous permission (as taken from the central government) must be contingent upon the terms and circumstances established by the central government.

4.     The Amendment Act 2023 delineates specific activities that will be exempted from non-forest uses, exempting forest land from limits on its utilization for non-forest purposes.  The activities encompass tasks associated with preserving, administering, and enhancing forest and wildlife resources, such as establishing checkpoints, firebreaks, barriers, and wireless communication systems. The Amendment Act 2023 expands the existing list of activities to include additional categories, namely:

(i)             government-owned zoos and safaris operating in forest areas outside of protected areas, as defined by the Wild Life (Protection) Act of 1972,

(ii)            ecotourism facilities,

(iii)           silvicultural operations aimed at promoting forest growth, and

(iv)           any other purposes as determined by the central government.  Moreover, it is within the purview of the central government to establish specific criteria and requirements that would prevent surveys, such as exploratory activities or seismic surveys, from being categorized as activities unrelated to forest goals[5].

Concerns related to the Amendment Act 2023:

1.     The first is that the exemptions related to the forest situated within 100 km from international borders, Line of Control, or Line of Actual Control have elicited apprehension over the possible deforestation of environmentally delicate regions such as the Himalayan, trans-Himalayan, and northeastern part of our country. It will definitely have a significant impact on the rights of indigenous populations residing close to India's borders.

-       The absence of adequate evaluation and mitigation measures for these clearances may pose a risk to biodiversity and perhaps result in severe weather phenomena.

-       These states are biodiversity hotspots[6].

2.      The Amendment Act 2023 seeks to modify the Forest Act, 1980 by extending its coverage to include designated forest areas while excluding specific forest properties from its purview. The Amendment Act 2023 further provides exemptions for forest land converted to non-forest use on or before December 12, 1996, as authorized by any state or union territory authority.  The aforementioned exemptions may contravene a ruling by the Hon’ble Supreme Court in T N Godavarman vs Union of India (1996) [“Godavarman case”], wherein it was established that the 1980 Act should apply to all forests, regardless of ownership or classification.  This includes all woods defined by the dictionary and all areas officially designated as forests in government records, regardless of ownership.

3.     The Amendment Act 2023 contradicts the aforementioned ruling in that it is the requirement to cease all ongoing non-forest operations in forests if they have obtained authorization solely from the state government rather than the union government.

4.     The Amendment Act 2023 includes a provision that exempts zoos from the requirement of obtaining prior consent as stipulated in the 1980 Act. The Supreme Court in 2023 has disapproved of zoos within tiger reserves or national parks and the Hon’ble Court also observed that primary objective of establishing tiger reserves and national parks is to facilitate the flourishing of animals within their natural habitats instead of restricting them to artificial environments[8].

5.     The subject matter of the Amendment Act 2023 is limited to places that have been officially designated as forests on or after October 1980. The consequence of this exclusion is the omission of substantial portions of forested areas and regions of high biodiversity from the scope of the Act, permitting their prospective sale, diversion, clearance, and exploitation for purposes unrelated to forestry[9].

Challenges:

The Supreme Court is now faced with a challenge to the constitutional legality of the Forest (Conservation) Amendment Act 2023. Various environmentalists and societal groups have appealed to the court to declare the Amendment Act 2023 as “null and void”. As per the writ petition filed by environmentalists and societal groups, the case is based on established principles of environmental jurisprudence.

There are allegations that both the Joint Parliamentary Committee (JPC) established to provide a report on the Amendment and the Union Government failed to address any of these noteworthy concerns in the JPC’s Report; furthermore, during the subsequent deliberations on the Bill in the Rajya Sabha on August 2, 2023.

The petitioners have asserted that the widespread allocation of forest land for various purposes, as enabled by the new Act, will, according to experts, result in uncontrolled deforestation. They argue that this action violates the constitutional right granted to Indian citizens under Article 21, which guarantees the right to reside in an environment free from pollution. According to the petition, implementing the new Act is believed to infringe against additional rights as stipulated in Articles 14, 48A, 51C, and 51A(G) of the constitution[10].

Conclusion 

Conducting a comprehensive and rigorous assessment of the proposed amendments and their possible impacts on forests, biodiversity, and local communities is paramount. The review should comprehensively include ecological, social, and environmental dimensions, combining viewpoints from many stakeholders, including experts, non-governmental organizations (NGOs), indigenous communities, and governmental bodies at the state level.