❈ ❈

Part 1: A Hollow Assurance: How Modi Govt Turned its Back on Forest Conservation

In July 2017, then Union minister for environment, forests and climate change Dr. Harsh Vardhan assured Parliament a new forest policy was being drafted and would be ready soon, 29 years after the last. The policy aims to yoke together all three central forest laws, which are currently working at cross-purposes because of changes in rules and regulations that tend to undermine forest conservation in favour of industries.

To date, the Modi government has yet to deliver on the promise of a forest policy. Records reviewed by The Reporters’ Collective reveal the Parliamentary Committee on Assurances – an accountability watchdog – reprimanded the ministry for repeatedly trying to backtrack on the assurance made in Parliament after twice having had to roll back forest policy drafts. The policy drafts, which were put up for scrutiny in 2016 and 2018, had come under fire for ignoring the rights of tribal people and forest dwellers and facilitating corporate entry into forests.

While the Centre abandoned its responsibility to create a policy for governing the nation’s forest resource, it instead made several dilutions to green laws through tweaks to rules and executive orders, making it easier for project developers to extract from forests. Executive orders do not require prior Parliamentary approval.

The government finally amended the Forest (Conservation) Act, 1980 in August 2023 to bring the changes it had tried to bring in through the 2016 and 2018 drafts.

“The National Forest Policy is important because it lays down the overall vision of the state on how forests should be governed and the legal mechanisms that need to be established to ensure participatory forest management and the recognition of rights of communities. The 1988 policy shifted the focus from colonial extraction and revenue-oriented policy to forest dwellers’ rights and their participation in forest management,” said Tushar Dash, an independent researcher working on community forest rights.

“The 2018 draft policy nullified the progress of the 1988 policy when it came to tribal rights and people’s participation. But the Centre still moved forward and brought the changes it wanted through executive orders and through amendments to the Forest Conservation Act. These go back to an extraction-oriented framework that favours private businesses,” he said.

Two U-Turns in Three Years

In 2016, the Union Ministry for Environment made public a draft of the new forest policy. However, the government later disowned the draft after it received strong criticism for disregarding the rights of tribals and forest dwellers, which had already been legalised in 2006 by the Forest Rights Act. Additionally, the draft was criticised for making corporates’ entry into forests easier.

Amid the cloud of uncertainty and policy vacuum, Lallu Singh, a parliamentarian from the ruling Bharatiya Janata Party, asked the ministry in 2017 if they had decided to have a new forest policy and when it was planning to do so. Without giving any time frame, then environment minister Vardhan informed Parliament that his ministry had tasked the Indian Institute of Forest Management in Bhopal to prepare a draft of the National Forest Policy. The institute had submitted it but the ministry was yet to finalise it. The Centre assured Parliament that it was in the process of finalising the new forest policy.

Unlike elsewhere, ministers are held to their words given on the floor of the House. An assurance given to Parliament has to be implemented within three months, according to the Manual of Parliamentary Procedures in the Government of India. If the ministry or government department is unable to complete its job in time, it has to seek an extension. In cases where the government fails to implement its assurance, it has to request the Committee on Government Assurances to drop it.

This 15-member committee scrutinises ministerial promises, assurances and undertakings in Parliament and reports to Lok Sabha on their implementation within the stipulated time.

The Union government drew up another draft national forest policy in 2018. This too, repeated the transgressions of the previous one and prioritised the interests of the private sector over the rights of tribal and other forest-dependent communities. The government later went quiet on this draft policy as well.

Faced with setbacks twice, the government tried to wriggle out of the commitment. In 2019, the government asked the Parliamentary committee it not be held to its assurance to have a new National Forest Policy. The committee did not agree.

The Modi government set out, for the third time, to see through a forest policy. In May 2020, the Union Environment Ministry prepared a cabinet note, a formal document outlining the policy proposal for which it is seeking approval, on a new forest policy and submitted it to the cabinet secretary, the senior most bureaucrat of the Union government reporting to the Prime Minister. But the Cabinet Secretariat, for reasons unknown, returned the note in September 2021, asking the environment ministry to revise it. The environment ministry did not bother to revise.

Instead, it again asked the committee on assurances in 2021 that it be relieved of its commitment. The committee, once again, rejected the ministry’s request and “emphasised the need to safeguard ecological balance and livelihood (sic) security of people and future generations based on preservation, expansion and sustainable management of forests and recommended that the assurance be brought to its logical end”.

The Committee, in its report tabled in the Lok Sabha in December 2022, reprimanded the Centre for not fulfilling its assurance to bring in a forest policy even after a lapse of five years. It said that after directing the ministry to “pursue the matter vigorously”, it “could have made concerted and coordinated efforts at least from 2020 onwards to expedite implementation of this Assurance, which has not taken place unfortunately”.

Pending Assurances, a watered-down regime

The ministry of environment has against its name a long list of assurances that it broke or dragged on inordinately. The Committee on Government Assurances (2022-23) noted that there were 49 such assurances from the ministry that were pending implementation. Of these, 40 assurances were made in the current Lok Sabha, six in the 16th Lok Sabha elected in 2014 and the remaining three were given to the House elected after the 2009 elections.

Since the delay ranged from three to 11 years for 9 assurances given by the 15th and 16th Lok Sabha, the committee had sought clarity on how the ministry planned to fulfil the promises it made.

While the ministry said that it prioritised its assurances, it informed the committee that there was no fixed timeframe and frequency of meetings to review pending assurances. They also said that they had been “trying to conduct regular reviews since last one or two months”.

The Committee looked at 21 of the 49 pending assurances. These were on forest policy, amendments to environment and biodiversity laws, river zone regulation, coastal management, regulation on hunting, and conservation of Western Ghats among others. Though the government implemented 14 of the 21 pending assurances, the promise of a new national forest policy continued to be on the back burner.

But the government hadn’t exactly given up. They over the years began deconstructing the contentious elements of the policy draft and patching them on to the fabric of existing laws – without a policy in place to be held accountable to. As part of the manoeuvre, by August 2023, the government brought in wholesale changes to a key forest law. The amended Forest Conservation law aligns with disputed provisions in the 2016 and 2018 draft National Forest Policy.

The Centre’s communiques show that it relies in principle on the 2018 draft policy even though it wasn’t officially finalised. A Press Information Bureau press release from July 2023 reads: “Ministry has formulated draft National Forest Policy after wide consultations with various stakeholders, including inter-ministerial consultations, and placed in public domain in 2018. The draft Policy recommends to integrate climate change mitigation and adaptation measures in forest management including resilience to climate change by forest-dependent communities”.

❈ ❈

Part 2: Modi Gov’t Unlocks Forests for Business, a Pursuit That Began in 2015

The Modi government persisted in finding ways to open up forests for commercial plantations, beginning shortly after taking office and ultimately achieving it through recent amendments to the Forest (Conservation) Act that damages the rights of tribal people, reveals a trail of official documents.

Documents studied by The Collective show the Union government’s dogged efforts in opening up forests began to take shape as early as 2015, gained prominence during the making of a Green Credit Scheme and continued to evolve through subsequent iterations of the National Forest Policy drafts in 2016 and 2018 that focused on allowing private participation in plantations on forest land to increase the productivity of forests.

Despite having to shelve the forest policy drafts twice, after coming under fire from environmentalists for its pro-business language and objections from the tribal ministry for infringing on the rights of tribespeople and forest dwellers, the government kept tweaking regulations to deliver for businesses. Finally, the government achieved in opening up the forest land for private parties through the recent amendments to the Forest (Conservation) Act of 1980.

The 2023 amendments leave ample room for the government to allow private businesses to enter India’s forestlands with ease and convert them into profit centers rather than biodiversity zones.

The Genesis

The efforts began in 2015.

India’s environmental laws aren’t primarily a code for crime and punishment but rather are meant to provide options for restitution. One such option prescribed by the forest conservation law is compensatory afforestation, which involves planting trees elsewhere to compensate for forest cut down. But it hasn’t been a success mainly because of the difficulty in finding land for afforestation, and neglect of saplings.

In 2015, the environment ministry began discussing ways to make it work. One way they thought it could work was by roping in private planters. They prepared a scheme that incentivises private entities to go for plantations on degraded forest land and non-forest land, and then allowing these private plantations to be adjusted against compensatory afforestation.

This meant that instead of planting trees on a new patch, an already existing private plantation would be considered as an afforested patch. The private entities that have raised this plantation would be incentivised through the Green Credit Scheme as well as by allowing them to use the plantations commercially. The scheme, which is yet to take off, planned to incentivise individuals to earn credits by undertaking tree planting and trading these credits on a market platform with private developers obligated to fund afforestation to compensate for cutting down forests.

In January 2015, the environment ministry constituted a committee under the Director General of Forests & Special Secretary (DGF&SS) to work on the Green Credit scheme. The goal was to involve industry in raising plantations on degraded forests as well as non-forest lands.

In September same year, the forest division of the ministry held consultations to issue “Guidelines on Private Sector Participation for Afforestation on Degraded Forest Land”.

It said degraded forests with forest cover not more than 10% would be made available to industries requiring timber and other forest produce for their use. This would start with pilot projects with private participation on forest lands. Of these lands given to private plantation companies, only 10-15% of the area would be earmarked for local communities and their collection of non-timber forest produce (NTFP), even if they had previously been legally collecting NTFP from a larger area.

The Union Ministry of Tribal Affairs came down heavily on the environment ministry. It said the guidelines for private participation “directly violate the statutory right of forest dwellers to protect, conserve and manage community forest resources” under the Forest Rights Act, 2006. The forest-dwelling communities have right of ownership, collection and disposal of minor forest produce, and the environment ministry’s guidelines restricted it.

The tribal affairs ministry said that before moving further, the rights of tribal communities should be settled and private participation should be allowed only after the gram sabha gives its consent to “involve private sector in managing their forests”.

As we wrote in the first part of this series, the environment ministry also drafted a forest policy in 2016, which it had to take down after coming under fire for favouring private players at the expense of tribal and forest-dependent communities.

The Union government subsequently assured Parliament that it would have a new forest policy. In 2018, another one was drafted and put in public domain. But it too carried the genes of its predecessor, focussing on allowing private partnerships in forestry activities like timber plantation while blurring out conservation and communities that depend on forests. It argued that the demand for timber was rising, leading to an increase in imports.

This is true. India’s imports of timber have been rising. But, according to a report of International Tropical Timber Organisation with data till 2019, India’s average annual wood productivity between 2009 and 2019 was around 46 million cubic metres. Of this, around 44 million cubic metres or 95% came from trees outside forests or timber plantations.

To cure what the government thought was a problem, the 2018 draft forest policy said there was a need to “stimulate growth in the forest-based industry sector” and “forest corporations and industry units need to step up growing of industrial plantations for meeting the demand of raw material”. It said the productivity of forests had to be increased to encourage the use of timber so that “dependency on other high carbon footprint wood substitutes is reduced”.

This draft too, which prioritised timber industry, threatened to undermine the rights of people under the Forest Rights Act (FRA).

“The 2018 forest policy draft was strongly opposed not only by civil society groups but also the tribal affairs ministry for ignoring tribal rights and favouring private interests in the name of increasing forest productivity,” said Tushar Dash, an independent researcher who works on forest governance and community forest rights.

Responding to the draft, the tribal ministry said that “the public private partnership models for afforestation and agroforestry detailed in the policy open up areas over which tribals and forest dwellers have legal rights under FRA”.

Even this draft national forest policy did not go anywhere. But the government brought into force the industry-friendly changes it struggled to enact since 2015 by tweaking rules and issuing executive orders that didn’t face Parliament scrutiny.

In July 2019, the environment ministry approved guidelines to allow commercial plantations on degraded forests through a tripartite agreement between the local forest department, an NGO of repute and the private entity.

In July last year, the rules under the Forest Conservation Act of 1980, too, were changed to allow the government to hand over forest land to private developers before taking the consent of tribal and forest-dwelling communities, which is mandatory under the Forest Rights Act of 2006.

Finally, the Forest (Conservation) Act was amended in 2023 to provide a robust legal framework for the entry of commercial planters.

The amended forest conservation law

Both the 2016 and 2018 national forest policy drafts tried to make it easier for private players to enter forests for timber cultivation and other commercial purposes. To roll out the red carpet for private players, the environment ministry ran a chainsaw through the laws to protect forests and the legal rights of forest-dependent people over their traditional forests.

The extant 1988 forest policy stated that forest-based industry should raise, on its own, “the raw material needed for meeting its own requirements” and support — with inputs, like credit, technical advice and transportation services — those who can grow the raw material for them.

This was laid out in the forest conservation law as well. The forest law required that if any forest land was leased out to a private individual or a company, they had to first get clearance from the Union government to use the forest. This approval came with strict conditions to minimise harm to the forest, pay compensation (called Net Present Value) for the trees that would be cut down, and also plant new trees in an equal area of land.

But the amended Forest (Conservation) Act now allows forest land to be leased to private players at the environment ministry’s discretion. Under the new law, the ministry can pass orders as per its wish to decide how forests will be leased to corporations.

Ministries pass “orders” to execute the law and the rules under it. But the amended forest law doesn’t provide any guidance on how these orders would set “terms and conditions” for leasing forests to private entities.

These orders wouldn’t need Parliament’s approval. While laws are approved by the Parliament before being implemented, rules under the law are placed before it to ensure they are in sync with the law. But executive orders, that the environment ministry now has allowed itself to pass, will not require parliamentary consent, either before or after they are executed.

“The amended law leaves no space for parliamentary oversight. The Central government can specify guidelines, directives, orders and executive instructions for how forest land will be leased to private entities, what activities will be forest-purposes that don’t require prior approval under Section 2 of the Forest Conservation Law and even issue directions to any government body or organisation or entity for the implementation of the Act,” said Shomona Khanna, a lawyer of the Supreme Court of India who works extensively on the rights of indigenous peoples and tribal and forest dwelling communities.

The amended Act will register timber and other plantations in forests, leased to private entities, as forestry activities, and potentially grant them sweeping exemptions under the conservation law.

“If a forest land is being used for a forest purpose, it can be given on lease to a private company simply by following a ‘direction’ from the Central government and we don’t know what those directions are going to be. There is no guidance in the amended Act for how this delegation of legislative power is to be exercised, which can result in all manner of arbitrariness,” Khanna said.

“This can be called excessive delegation of legislative power. The amended Act has included silviculture or plantations as forestry activities. The Centre can now pass an order that leasing forest land to private entities for forestry activities doesn’t require prior approval. It can exempt private entities from seeking Centre’s approval in certain cases which it will decide in the future,” said Ritwick Dutta, environmental lawyer and co-founder of Legal Initiative for Forests and Environment.

And the cherry on top: For the private sector, the plantations they raise will be eligible to earn Green Credits that can be traded for profit.

We sought comments from the Ministry of Environment, Forests and Climate Change on these amendments and how they give vast discretionary powers to the executive. We are yet to hear from them.

Other changes brought into force through the amended forest law were also part of 2018 draft forest policy that was binned.

In the section on wildlife management — another activity that did not require Centre’s approval to use forests — the 2018 draft inserted “ecotourism models” and zoological gardens. With the new alterations, zoos, safaris and ecotourism facilities have also been left out of the purview of the forest conservation law.

❈ ❈

Part 3: Forests Deleted

In April 1995, T.N. Godavarman, the Malayali scion of an erstwhile princely lineage, filed a public interest litigation in the Supreme Court seeking action against the indiscriminate felling of trees in the Nilgiris forestland that was once his family’s fiefdom. The court expanded the case’s scope and brought the entire forest governance regime in the country under its glare.

In 1996, the apex court gave an order that was at once landmark, ambitious, controversial and influential — it re-emphasised what lands would be protected as forests under the forest conservation law. Under it, whether the government recognised a forest patch as one or not on its records, if it was a forest, it would be protected regardless of who owned the forest patch. This became necessary because government records of forests have always been fuzzy, contradictory and incomplete.

The court asked that state-level expert committees identify and demarcate forest patches that had so far remained outside government records so that they were brought under the ambit of the law and protected. Twenty-seven years on, many states continued to drag their feet, and the Union government never put out consolidated information on these forests.

The Reporters’ Collective has accessed unpublished internal documents of the Union environment ministry, which, though dated, show that even by 2014 — eighteen years after the apex court order — most states, including Haryana, Bihar, Gujarat and Maharashtra, hadn’t even begun to properly identify and protect such forests.

The Modi government’s recent amendment to the Forest Conservation Act, limiting the law’s protection to officially designated forest areas, has now exposed large swathes of potentially qualifying forestland in these states to commercial interests.

In the case of Haryana, large parts of Aravalli range forests bordering Delhi, which are yet to be notified as a forest, lose their legal protection under the amended Forest Conservation Act, leaving the land vulnerable to being snapped up by real estate developers.

For private players, this is not the only piece of good news coming their way. The changes in the forest law exempt private plantations from conservation laws. Earlier, private plantations fitting the dictionary definition of a forest would invite the provisions of the Forest Conservation Law. Now they won’t.

Lost in the woods

In a meeting held by the Union environment ministry in 2014, 18 years after the Supreme Court order, over 25 states and Union Territories (UT) updated the ministry on the work done to identify forests.

While 12 had decided what constituted a forest, be it privately- or publicly-owned, 15 states and 5 UTs, including Bihar, Haryana and Gujarat, had not.

This is the last consolidated data on how the states acted on the Supreme Court’s directives. We accessed the documents, and they show state governments used wide-ranging discretionary definitions to identify such ‘deemed forests’.

For example: Himachal Pradesh decided that “compact blocks of wooded land above 5 hectares” would be a forest. Another hill state, Sikkim said that a “contiguous patch of minimum 10 hectares area having more than 40% crown density” would be considered a forest.

Uttar Pradesh instead decided, “minimum 3 hectare area with minimum 100 trees per hectare in Vindhya & Bundelkhand region and minimum 2 hectares area with minimum 50 trees per hectare in Terai and Plain areas” would be treated as forest. Except plantations on government or private lands.

The government never revealed this data to Parliament or made it public.

From September to November 2019, the Centre mulled identifying forests based on dictionary meaning and observed that “there can’t be any uniform criteria to define forest which can be applicable to all forest types in all State/UTs”. It then decided that states should frame criteria themselves and wouldn’t require the approval of the Union ministry.

Now with the amendment to the Forest (Conservation) Act, it has done away with the category of deemed forests. Before the Joint Parliamentary Committee on the new law, it said, “All areas which are identified as ‘forest’ by the expert committee constituted in pursuance of the 12.12.1996 order of the Supreme Court and affidavit has been filed in the Supreme Court in 1997 accordingly”.

But none is wiser about it because the government has not disclosed the specific areas identified as deemed forests on record and which have not been.

Environment minister Bhupender Yadav justified this exclusion in an opinion piece he wrote in a leading daily on August 7, 2023. “Fear had also crept in that FCA could be applied to private plantations. Afforestation outside forests failed to get the desired impetus. This was becoming a hindrance to enhancing the green cover,” Yadav wrote.

He was suggesting that private players were shirking from raising timber and other plantations for the “fear” that they would come under the conservation law that necessitated rigorous procedures of approval before the land was put to any other use that the owner wished.

With the amended law, that “fear” has been overcome. And the vision of the 2018 draft forest policy to realise the full potential of agroforestry, especially timber plantations, with corporate help, has been brought to fruition.

Losing Delhi’s lungs

Though the professed intention of the government is to increase India’s forest cover and realise its climate goals through the amendment, the unofficial green lungs of the country, such as parts of the Aravalli range bordering India’s capital, have become sitting ducks.

Only about two-thirds of the Aravalli hills in Haryana are protected under the Punjab Land Preservation Act, 1900. According to experts, an estimated 40% of the hills in Gurgaon and 36.8% in Faridabad are not notified as forests. These pieces of land, totalling around 18,000 acres, with scrub, open and dense forest cover, could have potentially been ‘deemed forests’ or forests “as per dictionary meaning” before the law was amended.

The Haryana government has always been keen to avoid tagging the hills as forests. Documents dating from 2015 show the many bureaucratic manoeuvres the government made to avoid implementing the 1996 Godavarman judgement and subsequent orders. They show large swathes of Aravali forests had been put in a grey zone as ‘status to be decided’.

It is decided now: they are not forests anymore. The Modi government’s amendment to Forest Conservation laws clears the path for real estate business.

“Making the FCA non-applicable to a range of forest lands, including private forests, and deemed forests as per dictionary meaning will lead to ecological disaster. It will lead to a large-scale diversion of these forest lands for non-forest use, particularly real estate in environmentally sensitive areas like the Aravallis,” said Chetan Agarwal, an independent environment and forest policy analyst.

Many tribal and forest-dwelling communities across the country are against changing the definition of forests.

Campaign for Survival and Dignity, a pan-India group of 18 adivasi and forest dwellers’ organisations, strongly opposed the proposed changes to the Forest Conservation Act during the public consultation process. It said in its comments that the Ministry should drop the proposed changes and “must begin by exhibiting compliance with laws, particularly the Scheduled Tribes and other Forest Dwellers (Recognition of Forest Rights) Act, 2006 and concede the authority of Gram Sabha in the decision-making on forest protection, conservation and forest diversion”.

Van Gujjar Tribal Yuva Sangathan, a union of nomadic pastoral tribe youths who work on claiming tenure over pastures through the Forest Rights Act, wrote, “Such a restrictive definition that seeks to reverse the logic of Godavarman case can lead to severe underestimation about the extent of forest areas… Furthermore, such a provision directly stands in contradiction with the purpose of the FRA, which applies to all types of forest land including unclassified forests, undemarcated forests, and existing or deemed forests”.

Forests and Figures Keep Changing

It’s not just the lack of data on deemed forests and the government’s frigid attitude towards them. Even the overall forest cover data that the government puts out periodically causes scepticism. In the past, this data has been highlighted for its inconsistencies.

An analysis of State of Forest reports throws up contradictory conclusions. According to these reports, India, on average, has added over 2,146 sq km of forests annually between 1987 and 2021.

But parsing through the two decades of these reports show, on an average, every two years, 2,594 square kilometres of very dense and moderately dense forest has turned into scrub or barren lands. That is more than the area of Bangalore and Delhi combined being chopped down every two years.

Strangely, on average, 1,907 sq km of scrub or non-forest land have turned into very dense or moderately dense forest. How does a near-barren piece of land turn into a dense or extremely dense patch of forest in merely two years?

Even the figures the government submitted at international platforms don’t match with the forest cover figures presented in the State of Forest reports.

In a report submitted to the United Nations in 2018, the Centre magically increased the forest cover for 2000 by over 22,000 sq km. This is more than the area of Mizoram. The data submitted to the UN had increased forest cover figures for 2000, 2004 and 2009. These were different from the numbers it has disclosed to its citizens.

Table: Increased forest cover figures submitted to the UN in 2018

In absence of reliable forest cover data in general, and data on deemed forests in particular, the Centre has moved ahead with industry-friendly changes to the forest law. While the larger section of India’s citizens stand in the dark.

(Tapasya is a journalist writing about policy and resource governance. She has previously written for The Diplomat, StoriesAsia and The Third Pole. Nitin is a journalist and trustee of The Reporters Collective Trust. He is also visiting faculty at Ashoka University. He has previously worked in editorial positions at The Business Standard, Scroll.in, The Hindu, The Times of India and Down To Earth. He has also been the Media Lead at National Foundation for India and a Partner at Land Conflict Watch besides advising several media and non-profit organisations in pro-bono capacity. Courtesy: The Reporters Collective, a group of like-minded Indian journalists who collaborate to report on stories that put the spotlight on those in power; and who shed light on how India’s political economy and governance functions.)

‍

‍