Last month, the Ministry of Environment, Forests and Climate Change (MoEFCC) issued a letter and consultation paper that documented proposed changes to the Forest Conservation Act, 1980 (FCA).

“During the intervening period of 40 years, there has been considerable change in the ecological, social and environmental regimes in the country. Efforts have been made during the intervening period to keep the provisions of the Act in tandem with the dynamic changes in the ecological and economic needs of our country by introducing appropriate legislations in the form of rules and guidelines. Yet, to effectively fit into the present circumstances, particularly for accelerated integration of conservation and development, it has become necessary to further amend the Act,” says the letter from the Assistant Inspector General of Forests, Sandeep Sharma, to the state governments and Union Territory administrations. The states and UTs had 15 days to share their comments and suggestions with the MoEFCC.

The purpose of this piece is to discuss two notable omissions in this paper: climate change, and the rights of indigenous communities.

In March this year, pursuant to a push from the Prime Minister’s Office, presumably in a bid to improve the ease of doing business in India, the MoEFCC had proposed new rules for forest clearance that would affect tribal rights under the Forest Rights Act, 2006 (FRA). The FRA, or the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, recognizes the symbiotic relationship between Schedule Tribes (STs), and the rights of forest dwelling tribal communities and other traditional forest dwellers to forest resources that they rely on for their livelihood, habitation, and other socio-cultural needs. It requires that prior informed consent must be obtained from gram sabhas before forest land is diverted for non-forest use.

One of the core objectives of the law was to undo historical injustices done to these communities and to strengthen the conservation regime by involving forest dwellers and the traditional knowledge they possess, in the protection mechanism. The recommended changes to the FRA were meant to ease the process of forest clearance by delinking the FRA and the FCA and limiting the powers of local governing bodies, i.e., gram sabhas, to make decisions regarding development projects.

The Ministry of Tribal Affairs had strongly opposed these revised guidelines, and they have since been stalled. The government has in the past used the Compensatory Afforestation Act, 2016 and repeatedly amended FCA Rules to bypass consent requirements for the diversion of tribal land, and to clear agricultural land for the creation of plantations under the garb of compensatory afforestation, resulting in the loss of biodiversity and the displacement of at-risk communities.

Environmental protection versus ease of doing business

The amendments to the FCA appear to have been proposed along the same lines. The new law would exempt government agencies from the requirement of obtaining prior clearance from the Centre in projects involving “national security” and other supposedly time sensitive projects.

Furthermore, it proposes to exempt land acquired before 1980, before the FCA came into effect, for bodies such as the Railway Ministry, from the approval process. Amusingly, the paper states, “There is a strong resentment in the Ministry of Railways, Ministry of Road, Transport & Highways, etc., for interpretation of the scope of applicability of the Act over the right of way (RoW) of railways, highways, etc.”

In most cases, these RoWs are claimed to have been formally acquired by these developmental organisations long before 1980, with a specific purpose to construct / establish rail lines and roads. Part of the land was used for the purpose it was acquired for before 1980 and the remaining part of the acquired land was left as such for future constructions/expansions. Trees or forest existing on the leftover acquired land were, thus, left as such (prior to 1980) and barren plots were planted with trees under different government schemes. In order to ensure protection to such plantations over the acquired land, in quite a few cases, these were notified as protected forests.

With the enactment of the Act and further clarification on its scope of applicability by the Supreme Court, all such land requires prior approval from the Government of India for non-forestry use. Thus, a landholding agency (such as Railways, National Highways Authority of India, Public Works Department, and so on) is required to take approval under the Act as well as pay stipulated compensatory levies such as Net Present Value (NPV), and Compensatory Afforestation (CA), among others, for use of such land, which was originally acquired for non-forest purposes. The paper, therefore, proposes to exempt such lands acquired before October 25, 1980 from the purview of the Act.

Granted, the FCA is outdated in many ways, and needs to be amended. But by focusing heavily on changing the definition of ‘forests’, the proposed amendment is suspect in its attempt to undo the far-reaching implications of the orders passed by the Supreme Court in the still ongoing Godavarman case.

In this case, the Court expanded the meaning of forest to include not only those areas designated as forests in government records, but also those falling within the dictionary meaning of forest. The objective of such a definition was to prevent the arbitrary conversion of forest land for non-forest activities as defined under Section 2 of the FCA. If this definition is not applied, states would be able to convert certain forest lands without obtaining approval from the Centre, and grant it to private persons for non-forest use.

A history of wilful negligence

Furthermore, the government hopes, through the proposed amendments, to facilitate the use of Extended Reach Drilling (ERD) that the Ministry claims is “quite environment friendly and as such should be kept outside the purview of the Act”. The ERD enables exploration or extraction of oil & natural gas deep beneath the forest land but making drilling holes from outside the forest areas and without impacting the soil or aquifer that supports the forest in the forest land.

While ERD might have its advantages, it is accepted by engineers that it is also riskier and more complicated than traditional drilling, given that it is relatively new and gas kicks happen more frequently and are tougher to detect. Additionally, as a result of the distance and angles that are involved, extra pressure is exerted on pipes and well casings as a result of the more powerful machinery that is used.

The MoEFCC has previously tried to permit the use of ERDs without environmental clearance requirements, at the Dibru-Saikhowa National Park, only a few months after the Baghjan gas leak was brought under control. In fact, the well at which the leak occurred, Baghjan Oil Field’s Well No. 5, was designated as one of the bases to which the ERD was to extend. These permissions were stayed by a division bench of the Gauhati High Court in December 2020, for Oil India Ltd.’s failure to conduct a biodiversity impact assessment study.

Why the MoEFCC would grant environmental clearances without regard for the eco-sensitive region or the interests of the locals, is inexplicable.

The inseparable consequences on tribal rights

It is evident that stakeholder consultations have not taken place in the framing of these recommendations. The colonial treatment of forests as merely troves of resources meant for extraction, has been sufficiently documented to have entailed the dispossession of Adivasis. The proposed changes to the FCA are of particular concern as they ignore and attempt to bypass tribal rights, and such encroachments on rights will necessarily result in friction with Adivasi communities, leading to further violence and State excesses.

Hidme Markam, a 28-year-old human rights and environmental activist from Permapara in Southern Chhattisgarh, has led a number of agitations in Bastar against such State repression. She was arrested on March 9, 2021, in a case relating to an armed attack on police in 2016, and awaits arrest in at least four other cases, including under the Unlawful Activities (Prevention) Act. She has been charged for a number of offences, including murder, attempt to murder, and possession of arms or explosives, among others.

Hidme is not alone in being a victim to selective prosecution. In Chhattisgarh, where Adivasi rights are violated with impunity, the number of Adivasis booked under false charges is shockingly high. The state set up a committee, chaired by former Supreme Court judge, Justice A.K. Patnaik, specifically to identify false cases and recommend the release of such persons. The committee recommended the withdrawal of 627 cases, of which 594 were withdrawn from courts this year.

Ignoring stakeholders

Environmental rights are not separate from tribal rights, and a conversation on one cannot be had without the other. Increasingly, the State has not only been excluding effective stakeholder participation in its law-making processes, but it has also been using State machinery to suppress any dissent against its unconstitutional practices by arresting and intimidating environmental and tribal rights activists.

In the last year alone, the persecutions of Disha Ravi, Fr. Stan Swamy, and Hidme Markam, have been pointers to this trend.

The proposed changes have raised the question whether the MoEFCC will eventually become an extension of the Ministry of Commerce and Industry. Be it its efforts to amend the Environmental Impact Assessment Rules in 2020 or its recent proposals to amend the FRA and the FCA, it is clear that the ministry’s allegiance is primarily to businesses and that there is a troubling coziness between the regulators and the polluting industries.

The disparity between India’s commitments on climate change and the implications of the proposed amendments

Climate change induced catastrophes disproportionately impact vulnerable groups. In India, this means that tribal communities are not only disadvantaged by the immediate consequences of these environmental policy changes, but also their long term implications on the climate.

Last week, ahead of the United Nations’ (UN) global climate talks, the union environment secretary R.P. Gupta, announced that net zero is not the solution to the climate crisis. “It is how much carbon you are going to put in the atmosphere before reaching net zero that is more important,” he reportedly said.

Net zero is the balance between the amount of greenhouse gases released into the air and the amount removed from the atmosphere. While it does not undo the damage already done, net zero is a step in the right direction to mitigate the extent of the consequences of climate change.

Interestingly, in contrast, at the 2021 UN Climate Change Conference in Glasgow, Prime Minister Narendra Modi said this week that India will achieve net zero by 2070. Given India’s short-term goal to expand and peak coal production, this promise is not only ambitious, but also folly.

Coal is responsible for more emissions than any other fossil fuel. Every year, the Indian coal fleet emits 1.1 gigatonnes of carbon dioxide (GtCO2), accounting for 2.5 percent of global greenhouse gas emissions, and this value will only go up if we expand production. A rapid transition away from coal is integral to sufficiently reduce carbon emissions and achieve net-zero within viable and realistic timelines. Easing extraction processes by amending the forest laws will have the opposite effect.

The 2021 Intergovernmental Panel on Climate Change Report has already stated that global temperature rise will likely exceed 1.5 ° C by the mid-2030s, at which time, tipping point events will become highly likely, and extreme weather conditions will be commonplace. The report also predicts a doubling of CO2 in the air by 2060.

In our race to the bottom to utilise every last bit of coal and mineable resource that we can before it becomes unviable, we fall victim to the Green Paradox, and function under the misplaced assumption that we have the luxury of time.

As Swedish environmental activist Greta Thunberg said at the World Economic Forum in 2019, “our house is on fire.” It’s high time the government woke up and smelled the fumes.

Short-sighted amendments to dilute and circumvent laws like the FCA and FRA, or the EIA rules to ease business and speed up extraction projects, do nothing but make it easy for us to exploit resources, pollute the atmosphere faster, and delay net zero, all the while excluding those most vulnerable from the decision-making process for activities that put them at even greater risk.

(Gauri Anand is an environmental lawyer and part of the research and editorial team at The Leaflet. Courtesy: The Leaflet.)