Deregulation as Disempowerment: Dispossessing Local Forest-dwelling Communities in India

Faulty Premise: Huge Diversion and Encroachment of Forest Land Despite FCA

Its stated objective is to protect the forest and prevent loss of biodiversity through the preservation of its territorial integrity and prevention of the use of forest lands under their jurisdiction for agriculture, grazing, homesteads, as well as centralized monitoring of their diversion to other uses. The Act takes away all powers regarding forest use and management from local communities and state governments, giving full authority to the forest bureaucracy and union government. However, the FCA does not get its basic premise right. The FCA is based on the incorrect rationale that forest conservation requires “inviolate” or “pristine” spaces free from human habitation, which has not been established on scientific or operational grounds; on the contrary, several environmentalists have shown how forest-dwelling communities are very important for conservation (Mandal et al., 2010). Be it the rotational grazing of the Van Gujjars, or zealously guarded sacred groves across the Khasi hills, examples abound. In any case, it is not as if the FCA has prevented the loss of forest cover. Over 4.3 million hectares of land was diverted for developmental projects between 1951 and 1980. Since 1980, an average of about 40,000 hectares is being diverted annually for non-forestry purposes, and a total of about 1.5 million hectares of forest land had been diverted for developmental projects (the 1,848,000 hectares vested as individual land holdings under the FRA to forest-dwelling communities pales into insignificance compared to these post-Independence diversion figures). During the last six years alone, despite the lockdown and pandemic, an area of 108,823 hectares (larger than the combined size of Mumbai and Kolkata) was diverted for non-forestry purposes. ⁵ More than 300,000 hectares (an area twice the size of Delhi) has been diverted for non-forestry uses over the last 15 years under the FCA, according to a statement by the union environment minister Bhupender Yadav in Parliament in August 2023 (Times of India, 2023).

This act of fencing the forests made the forest department the biggest landlord in the country, controlling over 21% of India’s geographical area, home to a large number of people who eked out their survival and livelihoods from these forests, of which they were users, conservers, and guardians by custom and by several constitutional and legislative provisions. Fencing in the forests meant a loss of livelihoods, cultural practices, and great precarity for the very existence of over 100 million people (275 million according to one estimate) (World Bank, 2005); it gave forest officials and guards huge powers over forest-dependent communities, which resulted in the worst forms of exploitation and repression. Despite repeated promises by successive central governments to restore forest rights and undo this injustice, it took 26 years and a massive push from the left democratic movement and Adivasi rights organizations to finally enact the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act in 2006, commonly known as the FRA.

The Act was designed to halt and reverse the loss of traditional forest rights by forestry policies, protection and management of forests against their destruction; prevent encroachment and the takeover of their habitats and forests illegally, or through mindless “diversion” to development projects, urbanization, commercial plantations, and so on. It recognizes the rights of the forest-dwelling Adivasi communities and OTFDs to forest resources, on which they depend for livelihood, habitation, and other socio-cultural practices.

Clearly, the two laws are guided by completely opposite approaches on the role of local communities in environmental conservation. From colonial rule onwards, career foresters have tried to exclude Adivasis from decisions over their forests and blamed them for the destruction of forests; forest officials have built the narrative of Adivasis as destroyers, to be kept away from occupation, use, and decision-making. However, this is refuted by credible historical evidence which demonstrates how tens of thousands of Adivasi communities have protected and regenerated their forests for generations. FRA stands for this by recognizing their “right to protect, regenerate, or conserve or manage any community forest resource, which they have been traditionally protecting and conserving for sustainable use.”

Given these core contradictions between these two important laws pertaining to forest jurisdiction, ideally, the older and exclusionary FCA should have been brought in line with the wider set of rights in the new FRA in 2006 itself, as was done to some extent through the 2006 amendments of the Wildlife Protection Act (WPA) (1972). ⁶ At the time, however, even getting a minimally meaningful forest rights law was such an uphill task, with neoliberal policymakers (wanting to free up forests for development projects, mining, urbanization and commercial exploitation) and environmentalists pitted against it, and with serious differences within the government over the extent to which rights are vested on an “as is where is” basis (playing out on national media). ⁷ In these circumstances, the democratization of the FCA did not seem politically possible in 2006.

Contestation over Defining Forests

It is easy to see why the legal definition of forests is so crucial in this struggle between people’s rights over forests and the geographical area under the forest department’s exclusive control. This is even more important because, as we saw, the forest department oversees the diversion of forest lands to other uses in a context of the private corporate sector’s growing and insatiable hunger for the subsidized exploitation of natural resources for profit. The Supreme Court of India in its landmark judgment in 1996 in the Godavarman case expanded the definition of forests to include areas mentioned as “Forest” in any government record, or that come under dictionary meaning of the word forest, or are defined as forest by an expert committee of the Supreme Court; this was an inclusive and expansive definition of forests. The judgment widened the scope of the forest clearance mandate under section 2 of the FCA for the diversion of forest land, and interpreted the provisions of the FCA to apply beyond “notified forests.” Thus, vast tracts of forest land in the country got protection under the Godavarman order which made diversion more difficult. This was not to the liking of the private sector.

In 2021, the government spelled this out further by stating that the deemed forests listed by state governments prior to 1996 will still be regarded as forest land. ⁸ In this way, in the last three decades, judicial and executive interventions have pushed to widen the definition of forests bringing more and more land under the purview of FCA. In a complete turnaround, in less than two years, the new amendments now do the exact opposite—by defining what is not a forest, the Act moves from an inclusionary definition to a narrow exclusionary one. This change will clearly undermine and narrow the applicability of the Godavarman judgment, since now by law, the Act’s ambit is limited to only those lands which are declared or notified as forests; or are recorded as forests on or after 25 October 1980. ⁹

If the FCA (1980) will only apply to those lands that have been entered in government records as forests, what happens to deemed forests, plantations, private forests, and so on? Also, does this mean that there can be no further identification and notification of lands as “forests”? Therefore, there can be no deemed forest lands in the future. What will happen to the vast tracts of deemed forests in the Aravallis, central Indian plateaus, western ghats, and so on? These are no man’s lands, outside the jurisdiction of both the government and the gram sabhas; how will their destruction and commercial exploitation be prevented?

Furthermore, since the rights of forest dwellers are specified on all forests under FRA, ¹⁰ how will the gram sabha’s right to protect, conserve and regulate forest use on the unlocked forest lands be exercised under the amended FCA? They clearly lose these rights (guaranteed under various laws and constitutional provisions; which made the capitalist plunder of forest resources that much more difficult), which appears to be the real legislative intent behind the amendments.

Creating Exceptions for Applicability of FCA Diversion Rules

The Act also prescribes lands and purposes that will, by default, not be covered under the FCA, resulting in automatic clearances for projects on such forests (irrespective of the size or impact of the project) without any EIA, completion of forest rights recognition as certified by the gram sabha, prior informed consent and other democratic people-friendly and ecologically protective provisions of FRA, PESAA, and the WLPA. The list of exempted purposes includes forests along rail and road infrastructure of up to 0.10 hectares; forests within 100 km of the international border or Line of Control proposed to be used for the construction of strategic linear projects of national importance and concerning national security; forest lands up to 10 hectares for security-related infrastructure and forest land for establishments of defense and paramilitary forces, and public utility projects on forest land. This is a lot of good forest land, huge tracts along our frontiers, that are removed from the purview of this Act.

Apart from these military and strategic purposes, the Act deregulates forest administration and use for private commercial exploration and exploitation. It expands the list of “non-forest purpose” exemptions where environmental clearances and consent of affected communities are not required. Even though scientific studies show silviculture and plantations are not always desirable, as they replace the natural ecosystems and destroy native biodiversity, private plantations for harvest and silviculture on forests (without specifying what type and where) are exempt from environmental scrutiny. The exemption to extended oil drilling for gas and oil extraction from beneath the forest land by drilling holes outside the forest area is not backed by any ecological studies as being environmentally friendly.

Somewhat sweepingly, zoos, safaris, safari parks, and ecotourism facilities are seen as a part of the conservation of wildlife and forests, but these too can and have been destructive of local livelihoods, vegetation, and wildlife habitats. Even more troubling is the residual category which allows forests to be used for “any other like purposes specified by the central government.” This is undeniably vague, putting too much power and discretion in the hands of the union government.

Violation of Powers of Local Communities

Decades of people’s movements and demands by left and democratic organizations against the centralized bureaucratic stranglehold over forestry, forest lands, and forest management had resulted in a certain amount of decentralization with powers vested in local institutions of self-government like the gram sabha; its consent was a necessary step in the forest clearance process, besides their rights to manage and protect forests and approve development projects. With all its rhetoric in support of Adivasis, this was a golden opportunity for the government to deepen this process of democratization by delegating greater powers to the institutions of local self-government and reducing the discretion and overarching powers with the bureaucracy. Unfortunately, the huge list of exemptions and narrowing of the scope of FCA in these amendments has meant a greater disempowerment of the local communities; the deregulation only strengthens executive authority and commercial interests.

It is a complete violation of the FRA and the PESAA. It supersedes the constitutional and legal requirement that gram sabhas give prior informed consent as a precondition for all projects in their areas. The preamble pays lip service to “enhancing forest-based economic, social and environmental benefits including improvement of livelihood of forest-based communities” but thereafter forgets about it, focusing only on deregulation and liberalization for commercial exploitation of forests.

In this way, the Act moves toward greater bureaucratization of powers, besides giving commercial and corporate interests a free unhindered opportunity to plunder forest resources. Not just greater bureaucratization and commercialization, the Act also concentrates crucial powers in the hands of the union government. For example, the union government can prescribe terms and conditions for the assignment of forest land through lease by the state government; it can issue directions to any authority under the central or state administration or recognized by them for the “implementation of the Act.”

Carbon Sinks and the Afforestation Burden on Adivasis

The purported rationale for changing the Act was two-fold: to create forest-based carbon sinks for mitigating climate change and to create land for compensatory afforestation for diversion to industrial and infrastructure projects. This, in turn, is intended to meet India’s commitment to implement its nationally determined contributions to climate change, committing for the first time in a law the targets of “Net Zero Emission by 2070,” “creating a carbon sink of additional 2.5 to 3 billion tonnes of CO₂ equivalent by 2030,” and “an increase in the forest and tree cover to one third of land area by 2030.”

Experts have argued that these targets are neither realistic nor fair. This approach raises more questions than it answers. How have these specific targets been accepted, and by whom? To increase forest and tree cover from the current 25%, an additional area of 26.3 million hectares needs to be released for afforestation and tree cover in the next seven years. These are not empty spaces without existing use and rights. About two thirds of this land lies in areas where the Fifth and Sixth Schedule, and the FRA, and the amended WPA vest decision-making, use, and ownership rights in the local forest-dwelling communities. What will happen to the lands which are no longer under the jurisdiction of FCA? Will they be used to create carbon sinks or be used for compensatory afforestation? The unlocking of large tracts and focus on rapid-growth monoculture plantations can be understood in this light. This will benefit rich plantation owners.

Opposing FCA 2023 Brings Conservationists and Forest Rights Activists Closer?

It is perhaps not an exaggeration to conclude that these neoliberal amendments to the Act in 2023 leave very little “conservation” in it, and we are back in the centralized colonial forestry regime to maximize commercial and private exploitation of forests at the cost of local communities and environmental sustainability. The threat to forests is so dire that some retired civil servants have filed a petition in the Supreme Court of India, challenging the constitutional validity of the new FCA amendments, especially the greater ease of executing large developmental projects (Ashok Kumar Sharma and Ors v. Union of India and Anr). ¹¹ They argue:

The 2023 Amendment Act poses a threat to the environmental, ecological, and food security of the nation, as well as the lives and livelihoods of local communities. It confers unrestrained discretion upon the Central Government concerning the use of forest lands and reduces regulatory oversight of these lands. Given its infringement on various constitutional provisions and violation of established principles of Indian environmental law, the challenged 2023 Amendment Act must be invalidated in its entirety…Despite receiving 1,309 memoranda raising concerns about the Bill’s soundness, the Committee accepted all its provisions in its report without critical commentary. It disregarded genuine concerns from the scientific community, forest officers, conservationists, tribal councils, retired civil servants, and other experts. The Government, nevertheless, pushed the bill through Parliament without taking into account the widespread dissent expressed.

It is a bit ironic that despite long years of serious policy differences, divergent scholarship, and acrimonious public spats, today both ends of the debate find themselves on the same side as they argue against the deregulation of forests for private profits of the corporate sector.

Notification to Implement the EPA Violates It

The EPA (1986) claims “…to provide for the protection and improvement of environment and for matters connected therewith,” ostensibly to implement decisions taken at the Stockholm Conference in 1972; and the “protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property.” It is essentially meant to regulate and control environmentally adverse activities. Under this Act, a notification is issued by the government to lay down the rules and procedures to amplify, clarify, and codify procedures or institutional arrangements for its implementation. The notification clearly cannot violate the very Act itself.

It is not the case that its predecessor, The Environment Impact Assessment Notification of 2006 was a beacon of hope for environmental protection, nor for the protection of Adivasi rights. It had a highly centralized and complicated structure of statutes, government orders, rules, guidelines, and policy directives, with multiple non-representative Expert Appraisal Committees (EAC) at various levels.

However, EIA 2020 neither fulfills the statutory and stated objective of environmental protection, nor brings about the much-needed changes in EIA 2006 that would make it more democratic, inclusive, increase coverage, give it more teeth against violators, make violators pay and democratize the appraisal committees constituted under it. In fact, it recommends a legal framework that would do the exact opposite of its stated intent by easing the vigorous devastation of the environment and increase environmental hazards for human and other living beings, and biodiversity manifold. In addition, it violates the protective laws and policies for Adivasis, on the one hand, and overrides some important Supreme Court and National Green Tribunal judgments, on the other.

Exemptions Make EIA an Exception Rather Than Rule

While the burden of proof has been shifted from project promoters to show the absence or acceptability of harmful environmental consequences, EIA 2020 states that violations can only be reported by the government and the project proponent themselves and not by citizens; violation cases will be dealt, entirely based on the suo moto disclosure by project developers that they have broken the law. A project-affected person has no locus standi, which violates the principles of natural justice. It reduces monitoring cycles from six monthly to yearly and removes mandatory compliance with several key proposals: the word “shall” has been replaced with the more fluid “may” in several places, reducing the compulsion to adhere to environmental protection and regulation. Worse, EIA will now be done on the basis of financial cost and size of the project rather than its environmental, social, public health, and other impacts.

The list of projects exempted from environmental regulation under EPA is breathtaking in its sweep; it exempts all expansion/modernization projects within a 50% increase in production capacity. Forty different types of industries are exempted from the requirement of prior environmental clearance. This includes projects labeled as “strategic” by the government, with this vague and open-ended definition of “strategic” projects: “[A]ll projects concerning national defense and security or involving other strategic considerations, as determined by the Central Government.” This is obviously an executive overreach by the central government to give itself blanket authority, with every possibility for a colorable exercise of power. The notification states that no information on “such projects shall be placed in the public domain.” Linear projects such as roads and pipelines in border areas are also exempted from the list. The “border area” is defined as an “area falling within 100 kilometers aerial distance from the Line of Actual Control with bordering countries of India,” which could cover much of the North-eastern states.

Large construction projects of up to 150,000 square meters are also exempt from EIA, and all other construction projects are exempt from public consultations before seeking environmental clearance. This is a very serious issue because in Delhi alone, according to the Delhi Pollution Control Committee, construction accounts for 30% of air pollution and its exclusion from EIA is mystifying. Additionally, all inland waterways and national highway projects are exempted from the requirement of prior clearance. Solar thermal power projects, solar parks, coal and non-coal mineral prospecting, minor irrigation projects with a command area of up to 2,000 hectares, and defense manufacturing units for explosives are also on the list of exemptions.

This effectively makes the EPA and EIA irrelevant in the clearance process and in forest areas and Fifth and Sixth Schedule Areas. These sweeping exemptions violate the FRA, PESAA and the Fifth and Sixth Schedules of the Constitution by depriving the gram sabhas the right to own, use, manage resources and give prior informed consent for the same.

Institutionalizes Impunity

Through an executive order, EIA 2020 dilutes criminal offenses and punishments for environmental law violations and invites impunity and criminality by monetizing crimes, doing away with imprisonment. Violators are required to execute two plans, one each for remediation and resource augmentation:

The Appraisal Committee shall stipulate the implementation of Environmental Management Plan, comprising remediation plan and natural and community resource augmentation plan corresponding to 1.5 times the ecological damage assessed and economic benefit derived due to violation in case of the suo moto applications or two times the ecological damage assessed and economic benefit derived due to violation in cases reported by any Government Authority or found during the appraisal of Appraisal Committee or during the processing of application if any by the Regulatory Authority, as a condition of Environment Clearance.

The low monetary penalties are neither a reflection of project cost nor the harm to the environment. This violates the law in statutes and judgments and reduces the Polluter Pays Principle to a joke. The payment of monetary compensation for the destruction of community or individual forest rights, by arbitrarily assigning them a monetary value, is completely against the FRA. Now, in order to destroy any forest or to wipe out a community forest resource, all that the project proponent will have to do is to go ahead and pay the measly monetary fine.

If these concessions for project promoters were not enough, EIA 2020 also permits post facto clearances with minimal fine payments, thus legalizing past criminal transgressions. This is in complete opposition to a number of Supreme Court judgments including one on April 1, 2020 that specifically forbid post facto environmental clearances, and held that an “ecologically rational outlook” be adopted toward development and given the “social and environmental impacts of industrial activity, environment compliance must not be seen as an obstacle to development but as a measure towards achieving sustainable development and inter-generational equity.” The Supreme Court of India strongly criticized the idea of post facto environmental clearances to industrial projects that start without a clearance. The EIA 2020 thus runs against the core principle that an assessment should be done prior to the commencement of a project.

Apart from violating the EPA and FCA, this retrospective clause completely contravenes forest and resource rights of Adivasis and other forest dwellers vested through FRA, PESAA, Fifth and Sixth Schedules, and so on, where their rights are doubly snatched: through degradation and dispossession of the resource and denial of their decision-making powers. Under these laws, the central or state government cannot usurp the powers of the village assemblies/gram sabhas in this manner.

Public Hearing Undermined, Made More Irrelevant

Perhaps one of the most undemocratic and marginalizing changes in EIA 2020 relates to the public hearing, an integral part of the EIA process which was one opportunity for the affected persons to be provided information in an accountable and transparent manner and discuss its various effects on the environment and their resource rights. For decades, local communities and their movements have demanded a greater role as decision-makers rather than passive audiences, in an actual consultation rather than a mere formality. EIA 2020 falls short of this in several ways.

Reducing the duration of a public notice, from 30 to 20 days, deprives the community of the time required for a meaningful study and understanding of the numerous social and environmental concerns that emerge. Bearing in mind the socio-economic circumstances of the vulnerable Adivasi communities living in remote and dispersed settlements who will typically be adversely affected by “development” projects, this 33% reduction in the notice would mean their effective exclusion from the public hearing. ¹² It states that where a central or state EAC is unable to conduct the public hearing, it can delegate the work to “any other authority,” and without any guidelines for this, the whole exercise becomes arbitrary and discretionary.

Worst of all, it completely does away with public hearings for several projects which require EIA. It limits public consultation to district revenue boundaries in the case of national parks and sanctuaries where pipeline infrastructure will pass, which violates the FRA, where rights are defined over ecological habitats which do not follow revenue boundaries. Roads and highways get huge concessions from public hearings. Additionally, if a public agency or authority finds that the local situation is “not conducive” ¹³ to participation by citizens, the public consultation need not include a public hearing. And of course, as discussed above, exempting a large category of projects from EIA altogether and allowing ex-post facto clearances bypasses public hearings, undermining public consultation, even as a fig leaf. Prior informed consent of affected persons is the accepted democratic principle for any land and resource use changes in Adivasi areas, and these exemptions to bypass public hearings and give retrospective clearances strike at the very heart of this principle.

The fact that the project proponent pays the consultants for the EIA study creates a conflict of interest. This, combined with the non-representative and centralized constitution of technical appraisal committees, results in a lack of independence and very poor-quality reports which are more often than not a “cut-paste” job. There is no regard for location specificity which is crucial in Adivasi areas; there is centralization of the selection process without local and state representation in selection for all committees; the central government has powers to override state committees; and there is a glaring absence of mandatory representation of Adivasis, Dalits, and women.

The lack of independence of members appointed to Committees by the Ministry of Environment and Forests (MoEF) has been flagged time and again. On 27 September 2023 (Indian Express, 2023), the Ministry nonetheless named a key adviser to Adani Green Energy Limited ¹⁴ as a member of one of the center’s EAC for hydroelectricity and river valley projects, before which many of Adani’s hydro project proposals come up for clearance, and the EAC takes decisions on projects that require prior government approval. At present, six such Adani projects are before the EAC for consideration.

The rules are ominously silent on the regulation of mining. The commercialization of the mining sector and the preference for opencast and slaughter mining methods on account of financial considerations have meant huge environmental and human costs. This has essentially legalized a lot of the illegal coal mining that was going on anyway and has facilitated its expansion on a much bigger scale than ever before. ¹⁵ It has also meant that erstwhile coal mafia operators in India’s eastern and central coal-bearing regions have become respectable and legitimate industrialists (Gupta, 2019b). The need for an instrument for assessment, regulation, and control of environmentally adverse consequences of opencast mining, during and after operations, is even more acute now. EIA guidance manual for mining of minerals (2010) prepared by ASCI (MoEF, 2010) has done this thus far, perhaps some may argue more in its violation than adherence. What would be the instrument with EIA 2020? The silence on this speaks volumes.

On the other hand, the government has been quick to divert funds from District Mineral Foundations, which are trusts set up by law in all the districts in every state ¹⁶ affected by mining and are defined as institutions which will work “for the interest and benefit of persons and areas affected by mining-related operations,” to address degraded livelihoods and huge socio-economic, environmental and health hazards and costs of mining, in order to provide for funds for the welfare of people affected by mining. Initially, the government diverted these funds to fight the COVID-19 pandemic. Now, EIA 2020 proposes the diversion of these funds to cluster leaseholders (who are not required to be Adivasis even in Adivasi areas) for implementation of EIA or EMP. This violates the law and the scheme under it, viz., Pradhan Mantri Khanij Kshetra Kalyan Yojna.

Conflict with Adivasi Rights and Environmental Protection

EIA 2020 Notification, like FCA 2023, is an endeavor to hasten project clearances, dilute the provisions relating to public consultation; convert the appraisal and monitoring process to a mere formality; decriminalize current and legitimize past violations; and offer huge exemptions to projects from due process. It is evident that the Notification is in direct conflict with the several protections in law and policy for Adivasi resource rights.

Resource alienation (takeover or pollution) is implicit in the EIA process itself in Adivasi areas, with clearances resulting in a denial of access and use; both exemptions and post facto clearances result in the complete abrogation and usurpation of the decision-making powers of Adivasis. In short, the EIA notification skews the balance of power over resources even further away from Adivasis. In the process, it violates the very core of protection and resource rights of Adivasis, themselves a result of years of hardship, exploitation, and struggle. The same provisions also violate the clearly laid out principles of environmental protection. It does not promote environmental protection, violates Adivasi rights, and only serves the ease of doing business, with environmental protection becoming a casualty to the pressures from private capital and industry.