FCA Amendment Bill: Liberalisation, Centralisation and a Further Assault
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EVEN while the ruling party prevented any interventions by opposition parties in parliament it continued to push through government business without discussion. One item was introducing a bill to amend the Forest Conservation Act, 1980. After the introduction, strangely, the government referred the bill to a joint committee comprising members of both houses. When there is a standing committee of parliament for all issues connected with the ministry of environment, forest and climate change (MoEFCC), why should government bypass it? Jairam Ramesh, chairman of the committee and Congress leader has rightly expressed strong objection to the procedure as being unprecedented and a violation of the mandate of the standing committee. This is yet another example of the government bulldozing parliamentary norms and procedures.
The amendment bill is a cause for concern. It comes in the wake of the amendments to the FCA Rules 2003, pushed through by the MoEFCC which amongst several highly objectionable clauses eliminated the constitutional and legal rights of gram sabhas to give or withhold consent for any projects in their areas, liberalised norms for diversion of forest lands, promoted privatisation of forests in the name of conservation and gave more powers to the centre to dilute the rights of the state governments over forest governance. In addition, the amended rules also remodeled the afforestation scheme to encourage the raising of private plantations, including for commercial use.
The CPI(M) had opposed these amendments in a memorandum to minister Bhupender Yadav. CPI(M) Rajya Sabha MP Elamaram Kareem moved a statutory motion for the annulment of these rules but even though the motion was admitted, the discussion was passed over on one pretext or another. Earlier the government had amended the Environment Impact Assessment Rules. Taken together, all these changes, and now the proposed amendment, are for facilitating the ease of business mantra of the Modi government.
The present amendment bill constitutes a further assault on the rights of adivasis and traditional forest dwellers and legally binds India to unrealistic targets of control of carbon emissions based on a one-sided approach to address climate change. This focuses almost exclusively on afforestation while at the same time diverting large tracts of forest land to private corporates in the name of development. It is a direct violation of the existing Forest Rights Act and on this ground alone it should have been scrapped at the introduction stage itself.
WHOSE “ECONOMIC NEEDS”?
The preamble to the bill includes the words “economic needs”. It says: “It is necessary to provide for provisions relating to conservation management and restoration of forests, maintaining ecological security, sustaining cultural and traditional values of forests and facilitating economic needs and carbon neutrality.” Whose economic needs are sought to be fulfilled? This is the crux of the bill. In the name of the fulfilment of economic needs, the government through the proposed amendments, expands the list of projects and land which are to be exempted under the regulatory framework of the Forest Conservation Act. It should be recalled that according to a reply given in the Rajya Sabha, between the years 2008-2019, 2.53 lakh hectares of forest land was diverted for projects. The bill aims to legally facilitate such diversion.
No Reference to FRA, PESA
The bill has not a single reference to other laws and constitutional guarantees for the protection of the established rights of tribal communities and other traditional forest dwellers. The preamble mentions “enhancing forest-based economic, social and environmental benefits including improvement of livelihood of forest-based communities” but there is no reference to this in the text of the amendments. Thus it is nothing but a cover for violation of precisely those laws which ensure such “social and economic benefits” and improvement of livelihood”
Liberalisation through exemptions
The exemption means automatic clearance for the project without reference to Environmental Impact Assessment, implementation of Forest Rights Act, compliance with provisions in FRA, PESA, the WLPA with the 2006 amendments, which specify mandatory consent of gram sabhas for any project in their village area.
Clause 1A (1) and (2) provides the details of which land and type of projects are to be exempted. In (1) All forest land diversions for projects started before 1996 are exempt from the law. This may seem a logical confirmation for projects that started so many years ago. In reality, after the passage of the Forest Rights Act, all such land comes under the purview of the FRA and protects the rights of adivasis and other traditional forest dwellers (OTFD). There are several examples where these rights have not yet been recognised on the pre-1996 projects. The amendment bill seeks to redefine forest to remove all such projects out of the purview of the FRA and the FCA. Exemption of such projects will mean that land use can be automatically changed without any reference to those affected.
In section (2) a wide range of categories of forest land are exempted which will affect a large portion of forest land. Government wants to exterminate the rights of adivasis and OTFDs on all this land. For example, forest land 100 kms from the border is exempt from the FCA regulations. Several ecologists and experts have calculated the amount of land so exempted to be as much as 1.3 million sq kms or around 40 per cent of the land area of which a substantial area is forest land. These exemptions are for “strategic linear projects of national importance” or “defence related” or “public utility projects”. This catch-all clause makes just about anything and everything eligible for exemptions. Moreover the terms “national importance” or “ public utility” do not denote government ownership but on the contrary include private entities owned by corporates. These exemptions from the regulations of the FCA are corollary of the government policy of opening up the strategic sectors including defence to corporates. The exemptions are in the form of incentives for private investment. This will directly impact the rights and livelihoods of forest-dwelling communities, mainly adivasis, and is a complete violation of the FRA and other laws.
The exemption includes “tree, tree plantation or reforestation raised on land not specified (as government land or in government records)”. This clause aims to promote private forests.
The bill usurps the powers of the state government as all the above exemptions will be on terms and conditions decided by the central government, not the state government, even on the issue of felling trees and the compensatory afforestation.
The centralisation of powers to the central government is repeated in another amendment to Section 2 in the Principal Act. This concerns “Restriction on the dereservation of forests or use of forest land for non-forest purpose.” The bill seeks to expand the definition of the list of exemptions for “non-forest purposes” to include eco-tourism, safaris by private parties, “or any other purpose which the central government may specify.” Further, the central government under Amendment (2) can also declare a range of activities including mining prospecting, exploration and so on as exempt from being declared a “non-forest purpose” and can also decide the conditions.
Thus not only are the exemptions damaging to the protection of forests, but in addition it is the central government through these amendments which will have the power to give even further exemptions without reference to state governments and also to decide conditions. The liberalisation of regulations and centralisation in the hands of the central government, are two sides of this amendment bill.
It is a measure of the hypocrisy of the central government that a bill which expands exemptions, legalises forest land diversion, and attacks tribal rights is being passed under the garb of India’s commitment to implement its nationally determined contributions (NDC) to address climate change. How can a bill designed to give exemptions for a range of projects from the regulatory framework of the law, a bill which will inevitably lead to the diversion of more forest land, fit in with the NDCs? The claims of the preamble and the actual text of the amendments are directly contradictory and in conflict with each other.
The NDCs are mentioned in the preamble thus giving a kind of legal recognition to the promises made so that the government can showcase this in the next international conference. It specifically mentions the targets set such as “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.” Can this be done by giving exemptions?
The Forest Survey of India in its 2021 report shows that the forest cover is still just 21.7 per cent of land area while the tree cover is 2.9, totaling 24.7 per cent of the land area. But experts say even this is an overestimate since it includes tea gardens, orchards and desert scrub as forest cover. But even going by the official estimate, how much land is required to plant enough trees to fulfill the goal of a carbon sink equivalent?
The estimates committee of the green mission of the government of India stated in its report in December 2018 “For meeting our targets of carbon sequestration, 30 million more hectare land for forests would be required. The mission document does not make it clear as to from where this land is going to be arranged.” Precisely. Much of the afforestation is being done on land in the occupation of tribal communities. Instead of recognising their rights, their land is being forcibly taken over for the plantation of trees.
According to the FSI 2021 report, about 60 per cent of total forest cover and 73 per cent of the very dense forests is concentrated in 218 districts classified as “tribal”. These include districts in the northeast and east and central India. They come under special protection under Schedules 5 and 6 in the Constitution of India. Many of these districts also are rich in mineral wealth, in water resources too. Thus mining projects, power and irrigation projects lead to a high diversion of forest land in these districts. Yet there was a net increase in forest cover in these districts though mainly outside recorded forests. This once again underlines the importance of involving tribal communities in any plans of forest conservation, based on a recognition of their constitutional and legal rights. However, the government is moving in the opposite direction.
In sum, the bill is part of a larger scheme: 1) to redefine forests in a way to take a large part of forests out of the purview of FCA and FRA (even as the FC bill is tabled the MoEFCC has already initiated the process with state authorities to review all the ‘deemed forest categories’); 2) to restructure and reverse forest governance to allow centralisation through greater control by the forest bureaucracy, forest mafia, and the corporate; 3) undermine the democratic advancement in forest governance by undermining FRA, PESA and the authority of the gram sabhas. It has declared a virtual war against tribal rights. The FCA amendment bill is one more weapon in its armoury and must be opposed.
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