Modi govt's move to amend Forest Act takes a giant leap backwards

The IFA 2019 legally provides the political executive and the forest bureaucracy absolute discretion to open any forestland to commercial plantations

The National Democratic Alliance (NDA) has proposed a law to put around a fifth of India’s geographic area — about 708,273 square kilometres of forested lands — under a policing regime akin to the Armed Forces (Special Powers) Act. The draft law, which has been circulated to the states for comment, is called the Indian Forest Act, 2019. Under it, the forest department gains enhanced powers to shoot at citizens, search and seize property and arrest people even on mere suspicion of committing a crime. People depending on these lands — by government’s last estimate in 2009, around 400 million of India’s most marginalised and poor, largely tribals — would not enjoy the same civil liberties as the rest of India’s citizens, the law provides. 

To underline the ultra-draconian nature of the law, the Union government has helpfully prepared a table demonstrating how the new law is more stringent than the earlier one (see chart).

In a sense, the proposed law represents a continuum of two laws: A British-era one and the other enacted 33 years after independence. The 1927 Indian Forest Act (IFA) summarily extinguished all rights of tribals and other forest-dependent communities and gave the colonial power command over the forests (principally to secure timber). The law enabled the state to legally treat the country’s tribals as encroachers. Then in 1980 came the Forest Conservation Act, which was used to regulate where and for what reasons (such as mining and industries) forests could be cleared. 

With the pace of industrialisation picking up after 1991, these laws accelerated the usurpation of forest lands and resources by the powerful mining and industrial groups. Data from the past 15 years shows that more than 90 per cent of the forest patches that industry demanded were cleared for its needs. In parallel, the high-handed management of forests tracts that had not been felled led to the deep alienation of forest-dwellers. By the start of the 21st century, brutal and mass-scale evictions were carried out in Indian forests, the principal cause of the law and order problems in central and eastern India.

Under pressure from civil society, the United Progressive Alliance (UPA) enacted the Forest Rights Act (FRA) in 2006. The new Act did not  break down the colonial architecture of the 1927 IFA but bypassed it in parts. On paper, it moderated the powers of the top political executive and the forest bureaucracy by vesting in village councils statutory power to govern a part of the forests over which rights were restored to the forest-dwellers. On paper, the village councils got a veto over the Union environment minister in deciding if the forests would be cleared for industrial purposes. 

By the end of UPA’s second tenure, however, the political executive and the bureaucracy clawed back their powers  -- the veto for clearing forests was diluted in several cases, and paperwork was made so onerous that tribals struggled to prove rights over the lands they had inhabited for generations. When the NDA government came to power it tried to undercut the Forest Rights Act, but after its failure to amend the Land Acquisition Act, which would have diluted the rights of land-losers, it backed off. 

That was a temporary move. In 2018, the FRA was challenged before Supreme Court by some animal rights groups, but the  Union government initially sat out the crucial hearings. Then, earlier this year, the apex court’s ruling raised the prospect of evicting more than 2 million households. With elections looming and the Opposition ringing the alarm bells, the government sought a review petition to defuse the crisis. 

A month later, came IFA 2019, which legally provides the political executive and the forest bureaucracy absolute discretion to open any forestland to commercial plantations — either by the government or the private sector — in the name of increasing forest productivity or reducing greenhouse gas emissions. This is a first. 

So far, despite an outcry by civil society, the Congress, too, has kept silent. On their part, forest officials justify the Bill saying it updates the legislation to incorporate judicial interpretations altering forest governance, address the challenges of climate change, meet the needs of a more people-friendly approach to the issue and empower bureaucracy to deal with the political pulls and pressures that impact the integrity of country’s forests. But as Shomona Khanna, a former legal advisor to the tribal affairs ministry, points out, “A close analysis of its provisions demonstrate that the draft crosses the boundaries of legislative competence of Parliament, making huge inroads into the legislative and executive powers of state governments over the forest lands.”

She adds, “In my view, therefore, quite apart from the violation of the FRA and basic principles of criminal justice, the Draft Bill needs to be rejected in its entirety because it makes a complete mockery of the basic constitutional principle of federalism and decentralisation of power.” 

The states are expected to respond to the draft by early June. The political dispensation in power will have then have an opportunity to decide if forest governance should be overhauled to go back in time or move forward.