Bengaluru: Challenging the constitutionality of the Forest (Conservation) Amendment Act 2023 in the Supreme Court, former civil servants and conservationists urged the court to declare the new Forest (Conservation) Amendment Act 2023 “null and void”.
They said it is in violation of several fundamental rights guaranteed under the constitution, as well as under the “established principles of Indian environmental jurisprudence”. The court asked the Union government to respond to the writ petition.
A controversial Bill that became Law
Union environment minister Bhupender Yadav introduced the Forest (Conservation) Amendment Bill on March 27 this year in the Lok Sabha.
The Bill aimed to amend the Forest Conservation Act of 1980, which provides for the conservation of forests across the country in several ways including restricting the use of forests for non-forest purposes (such as tourism). The Bill proposed several drastic changes to the Act citing, among others, the importance of afforestation in meeting the country’s carbon targets. Such a modification to the Act, experts had said, would mean that it would no longer apply to some forest lands (such as deemed forests and community forests) which are functional forests as per the dictionary meaning of the term, but not officially recorded as forests.
With the amendment, the new Act will apply only to lands notified as a forest under the Indian Forest Act, 1927, or those that have been officially recorded as a forest on or after October 25, 1980. Yet, the Bill claimed that it clarified “the scope of applicability of the Act upon various lands so as to remove ambiguities and bring clarity”. Other issues that experts have pointed out included the fact that the Bill would now make it easier to divert forest land within 100 kilometers of projects for “national security” and “defence” purposes (this for instance, means that such projects in most of northeast India would not require forest clearance from the Forest Advisory Committee as was previously mandatory in the old Act), and permits projects such as zoos, safaris and other ecotourism centers within forest land.
Also read: Citizens, Climate Action Groups Protest Against the Passage of Forest Conservation Amendment Bill
Though several conservationists, scientists, former civil servants, and activists had responded in detail to these loopholes in the Amendment, they have alleged that neither the Joint Parliamentary Committee that was set up to report on the Amendment, nor the Union Government, addressed any of these major concerns in the Committee’s Report on the same, and during the discussion that followed on the Bill in the Rajya Sabha on August 2. The Committee, for instance, received about 1200 memos, objections and addendum on the Bill, Pradyut Bordoloi, a Congress MP from Assam told The Wire Science in June this year. The Lok Sabha cleared the Bill on July 26, the Rajya Sabha on August 2, and the Bill also received Presidential Assent shortly thereafter (August 4).
Protest against the Forest Conservation Amendment Bill in Hasdeo, Chhattisgarh. Photo: By special arrangement.
Petition in SC challenges new Act
Several former civil servants and conservationists filed a writ petition in the Supreme Court – which the Court heard on October 20 – saying that the new Act is “unconstitutional” and should be held “null and void” since it violates several fundamental rights guaranteed under the Indian Constitution, as well as under the “established principles of Indian environmental jurisprudence”.
“Rampant diversion of forest land for all varieties of purposes” – which, as per experts, the new Act facilitates – will cause “unrestricted deforestation” and this amounts to a violation of the fundamental right guaranteed to Indians under Article 21 of the Constitution, to live in a pollution-free environment, the petition says.
The other rights that the petition says will be violated with the implementation of the new Act are Articles 14, along with Articles 48A, 51 C, and 51 A(G) of the constitution.
Article 14 – which deals with fundamental rights – bestows the right to equality to all, which in turn implies that the State be fair while dealing with matters of environmental protection.
Article 48A says that the State is responsible for the “protection and improvement of environment and safeguarding of forests and wild life”.
Article 51A deals with the fundamental duties of citizens and under clause (g), it is the duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures”.
Among the “established principles of Indian environmental jurisprudence” that will be violated are the precautionary principle (which, as per the ruling of the Supreme Court in a 1996 order, “makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation”) and the public trust doctrine (which mandates that public lands – in this case, forests held by the government of India – are held by the government on behalf of all people and future generations, and that the government therefore is liable to protect forests). Another is the principle of non-regression, which holds that in the interest of humanity, no environmental law can be diluted or regressed but only improved. The petition, like the comments provided on the Amendment Bill by institutes, research organizations and independent scholars, holds that the new Act is a regression to the old one in that it will open up large tracts of forest land to deforestation and change.
The petition – which The Wire accessed – argues that the new Act “introduces a regulatory regime that facilitates a regression in the nature and extent of protection that forests were afforded earlier”. It details how the Act goes against the Supreme Court’s order in 1996 (T. Godavarman Vs Union of India), which permitted that forest lands that are not officially recorded as forests but which are functional forests as per the dictionary meaning of the term, to be recognized and protected as such.
The 1996 order had held that states form State Expert Committees, and develop reports that quantify and identify forest lands in each state. However, none of these are in the public domain, and it is not clear if all states have these Committees or the Committees have submitted their reports either, clarified Prakriti Srivastava, one of the petitioners.
“While examining Kerala’s State Expert Committee report, it is evident that it was put together in haste with no reference to the locations of the forests in the state, and without any ground truthing, physical cadastral surveys or demarcation of these lands,” the petition reads. “SEC reports submitted by other states are likely to be of similar poor quality.”
Srivastava, a former Kerala cadre IFS officer who retired as the state’s Principal Chief Conservator of Forests noted that in the case of Kerala, if a proper SEC report had been filed, it would have notified parts of Chinnakanal and Pullivasal in Idukki district as forest lands too. However, these areas were not notified or mentioned in the SEC and as a result, the areas are now overridden by resorts. Incidentally, the loss of wildlife habitat and conversion of wild lands here have caused habitat fragmentation – a possible reason why Arikomban, the famed rice-eating elephant of Idukki district took to stealing rice in the first place, and would venture into human-dominated areas (where once forest land stood) to look for easy food, per locals and elephant behavior specialists, as The Wire Science had reported.
Srivastava’s report in the late 1990s submitted to the state forest department when she was posted in the area highlighted that the land should not be diverted for a settlement for landless tribal communities; this report, media articles have pointed out, however, was ignored and forest land distributed to people.
The Forest Survey of India – which compiles biannual India’s State of Forest Reports – should have compiled data from the SECs and included these in their reports, but this has not been done either, Srivastava told The Wire.
The ministry also claimed that the old Act is being modified to ensure that people will now be encouraged to plant trees on their lands which will help increase the carbon stock of the country through afforestation and plantations. However, where is the proof, the data, that people are currently not planting trees fearing the old Act, asked Srivastava. “All submissions by the Ministry are only anecdotal and not data-based,” she said.
Per the petition, the “principal Act is effective and practical and the need of the hour is better implementation”, the petition noted. “State-level initiatives under the umbrella of the principal Act could have been considered to encourage tree plantation,” it read.
The ministry submitted “false and incomplete information”
The petition also alleges that the Union Environment Ministry provided “false and incomplete” information to the JPC and the JPC, in turn, “believed the Ministry’s submissions without any scientific examination or scrutiny of the documents”. The petition also points out that though numerous experts including conservationists and legal policy researchers including several of the petitioners in this writ petition raised concerns regarding all these issues in the Amendment, these were not addressed by the JPC or corrective measures taken in the draft Bill.
As per the petition, it is: “apparent that the provisions of the 2023 Amendment Act will cumulatively cause extensive and unbridled damage to the forests of India. These amendments fundamentally change the entire object and purpose of the FC Act as well as the regulatory framework built under it.The amended Forest (Conservation) Act is now a new legislation, bearing little resemblance with the principal Act.”
The petitioners include two former secretaries of the Ministry of Environment, Forest and Climate Change (MoEFCC) M.K. Ranjitsinh and Meena Gupta, and conservationist and former member of the National Board for Wild Life Prerna Singh Bindra.
We take this battle to the Hon’ble Supreme Court to set aside the #Forest #Conservation Amendment Act 2023 which is tailored to remove vast swathes of forest land from legal protection; throwing them open for diversion for pvt, commercial interests
— prerna singh bindra 🐘🐅🐾 (@prernabindra) October 21, 2023
“This is a fight to conserve #India’s wealth of #forests & precious #wildlife, preserve our natural & cultural heritage, save the #ecosystems crucial for our ecological & financial security…It is a battle to preserve our #forests, leave a living, viable #environment for our children. It is a battle to save the idea of #India. Lest we forget our forests and our #wildlife are part of the fabric of the country,” tweeted Bindra on October 21.
The Supreme Court heard the petition on October 20 and has given the Union government six weeks to respond. The petition is the last legal resort – an almost frantic last attempt – to prevent the implementation of the Act in India.
“If we hadn’t done this then it would have been a lost cause anyways…so we have hope because we believe this is something that needs to be fought out,” said Srivastava. “It is the Supreme Court’s order itself – the Godavarman case in 1996, which detailed how forests should be identified – that the new Act is going against.”
But if the court does not address the concerns in the petition, what then?
“Then I guess we must just accept the fact that we’re going to perish very soon,” Srivastava told The Wire. “We are talking about addressing human wildlife conflict and climate change on one hand, and on the other, cutting the very branch we are sitting on [by implementing the new Act]. It is all just doublespeak and our actions don’t align with our words.”