#6: Hard, but Brittle
#6: Hard, but Brittle
India’s inflexible forest conservation law has increased the cost of public utilities, hindered local democratic decision-making, and may even be harming our environmental aspirations.
The Parliament will discuss the Forest Conservation (Amendment) Bill, 2023 in the monsoon session. The amendment Bill excludes certain forest lands and uses from the purview of the Forest Conservation Act, 1980 (‘1980 law’). In public discourse, the Amendment Bill has been criticised for the possible environmental effects of the exemptions so granted. While criticisms of individual exemptions may be warranted, the amendment bill is an important step towards acknowledging the ill-effects of the 1980 law on governance in India, environmental and otherwise, over the last 40 years.
With the 1980 law, both the Parliament and the Supreme Court adopted an undemocratic (hard) approach towards the management of forests. Such a hard approach to environmentalism is liable to be embrittled in the long run as it conflicts with the needs of a citizenry. In the last 43 years, this hard approach has discouraged investments in infrastructure that could improve the quality of life for communities who live near forests and for other citizens, it has hindered democratic processes that aid in local problem-solving, and it has made it difficult for governments to implement complementary strategies for environmental preservation.
Undemocratic management of forests
By enacting the 1980 law, the Parliament transferred most decision-making powers about forest management from the states to the Union Government. Before, state governments made most decisions about identifying ‘forest land’, and what activities would be allowed in such forests. This allowed local political pressures to evaluate the costs and benefits of protecting forests. This was a beneficial setup because the burden of protecting forests usually falls on the residents in the area. After the 1980 law, only the Union Government could make decisions regarding the kinds of uses to which forest land could be put. Further, only the Union Government could make the decision to de-classify certain categories of forest land. In these matters, the role of the state governments was reduced to maintaining records and enforcing restrictions that came from the Union. As a result, the law became unresponsive to local considerations.
The law was made more unresponsive by a Public Interest Litigation (PIL) before the Supreme Court in the 90s. Through this litigation, the Supreme Court further constrained the ability of the state and union governments to balance the objectives of forest conservation with other competing democratic demands. Previously, state governments or the Union Government had the power to identify forest land. In the PIL, the Supreme Court applied the restrictions for forest lands on plots which neither the Union Government nor state governments considered as forests. For example, the PIL reduced the power of the state governments to permit tree-felling. The Court also created a new body to review requests for change in land-use or any construction inside forests (called the Central Empowered Committee). This body was not envisaged in the 1980 law. The Court also required fees to be paid if anyone wished to put forest land to other uses. The fees ranged between Rs. 10 to 15 Lakhs per hectare. The user was also required to provide land for compensatory afforestation. Neither the fees, nor the requirement to provide land, was envisaged in the 1980 law.
These restrictions make any changes to forest land time-consuming and expensive, even when there is no forest to be protected. Consider the example of an error in recording forest land in Punjab. In 1997, around 2,500 acres of land were recorded as ‘forest land’ in error as those lands did not have any forest cover. In the past, the Punjab Government could have corrected the error by updating the records. Due to the PIL, the state government had to take additional steps of applying to the Supreme Court, which referred the issue to the Centrally Empowered Committee. These steps started in 1999 and the change happened in 2009—10 years to correct a clerical error. Even after receiving the permission, the Punjab government was asked to enforce strict rules regarding the purposes for which the land could be used.
Consequences of this hard approach
The legal position as it stands today affects Indians in three ways: it increases costs for public utilities, it hinders local solutions for local problems, and it may even be undermining the larger environmental objective.
Actual forests become a liability for communities living near them because any change to land recorded as forests requires permission from the state, Centre and even the judiciary. Consider a hypothetical situation where a community’s access to a hospital or a school could be increased by modifying forest land. This cannot be done even if the local community is unanimous about the utility of such a change. The permission would be required in offices of the Union Government that are too far away to appreciate the cost imposed on the local populace due to poor access to basic facilities like hospitals and schools. This unfairly burdens some communities with the cost of maintaining India’s forest cover. A spatial analysis of states across India demonstrates a high concentration of poverty in areas in and close to forests.
Where actual forests need to be diverted for infrastructure, the 1980 law substantially increases the cost of building roads, transmission lines, and utilities. The Union Government has acknowledged that forest clearances continue to be a major reason for time and cost overruns in infrastructure projects.
Even where there is no real forest cover to lose, the law has constrained state governments from addressing simple problems through local consensus. The problem of strip forests illustrates this constraint on state governments. During the first two decades of Independent India, states like Punjab, Haryana, Uttar Pradesh, Gujarat, Rajasthan, and Bihar had classified strips of land alongside roads, canals, and railways as ‘forest land’ — essentially treating footpaths as forests. States did this to artificially increase forest cover. These footpaths do not meet the dictionary definition of forests. They do not even meet the government’s own definition of canopy density to qualify as a forest; government reports show that most strip forests only accommodate one row of trees. Today, even a school that abuts a footpath classified as a strip forest must obtain permission from the Centre to access the main road. A state government could have solved these problems in one of two ways: it could have been the authority issuing permissions, or it could have spotted this pattern over a period of time and denotified these artificial forests. Neither of these solutions is possible with the combination of the 1980 law and the PIL.
Money and access costs apart, the 1980 law may be harming our green cause. Consider the lithium reserves that have recently been discovered in the Reasi district of Jammu and Kashmir. These lithium reserves are sufficient to build a third of the two billion electric vehicles needed to reach net zero. But this lithium is in a district with 45% forest cover. The law as it stands prevents a reconciliation of complementary strategies for a sustainable future.
Conclusion
The 1980 law combined with the Supreme Court’s orders in the 1996 PIL has taken a hard but brittle approach towards forest conservation. Such an approach cannot survive legitimate grievances or democratic pressures. It made a correction inevitable. The Amendment Bill only tries to alleviate the most visible negative outcomes of this hard approach. A sustainable solution to India’s environmental aspirations requires a law that is not maximalist. A solution must allow for rational and continual assessment of trade-offs, resulting in decisions guided by public experience and needs.
References
Ostrom, E. (1990). Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge University Press.
Anderson, Terry L., Leal, Donald R. (2015). Free Market Environmentalism for the Next Generation. Palgrave Macmillan New York.
Joshi, Aditya K., Pant, P., Kumar, P., Giriraj, A., Joshi, Pawan K. (2010). National Forest Policy in India: Critique of Targets and Implementation. Small-scale Forestry 10, 83–96.
Bhandari, L. (2021). Let’s Change India’s Forest Laws.
Bhuvana Anand, Shubho Roy, and Abhishek Singh are researchers at Prosperiti.