Module 5

FOREST
● What is a Forest?

Characterized by a dense growth of vegetation, which may include various

species of trees, shrubs, bushes, and other plants

● What is Deforestation? What are the factors responsible for Deforestation?

Indiscriminate cutting of trees for fuel, furniture, etc; To set up industries,

mines, factories, etc; To increase cultivable land; Gets submerged when
dams are constructed; To build roads, railway tracks, runways, etc; Forest
fires; etc.
What is the need to conserve forests? What is the need to have laws for the
conservation of forests?

● Shelter to birds, animals, reptiles, etc; flora and fauna

● Provides life and livelihood to tribal and forest dwellers
● Regulate water flow and control floods
● Conserve soil, adding fertility to soil
● Help the water cycle providing seasonal rains
● Prevent air and water pollution
● Regulate felling of trees for construction of buildings, roads, tracks,
mines, factories, industries, houses, etc
CONSTITUTIONAL MANDATE FOR FOREST CONSERVATION

● Through 42nd amendment, Article 48A [DPSP] and Article 51(A)(g)

[Fundamental Duty] were introduced

Art 48A – State to protect and improve the environment and to

safeguard the forests and wildlife

Art 51A(g) – Citizens to protect and and improve the natural

environment including forests, lakes, rivers, wildlife

● Initially, Forest was a ‘State’ subject but later it has been added in
the ‘Concurrent List’ via Entry 17A through 42nd amendment
 HISTORY OF FOREST REGULATION IN INDIA

● Till the British rule, forests were protected by the Tribal population and
forest dwellers
● After colonial advent, protection towards forests mainly driven by
economic interests
● Forests were seen as sources of raw materials such as timber for building
of ships, railway coaches, etc
● Another reason was to disconnect the forest dependant people from
forests so that government could exercise monopoly over forests
● Forests were also cleared to increase agriculture of selective crops such as
opium, cotton, etc.
 EVOLUTION OF FOREST LAWS IN INDIA

● Indian Forest Act, 1865

Indian Forest Act, 1878

Indian Forest Act, 1927

● Forest Conservation Act, 1980

● Scheduled Tribes and other Traditional Forest Dwellers (Recognition

of Forest Rights) Act, 2006 [Forest Rights Act]
 INDIAN FOREST ACT, 1927

● Product of British Colonial period, reflects the exploitative intentions of

colonial and feudal society of that time, rather than the environmental
and ecological interests of the society

● Definition of Forest:
○ Not defined in the Indian Forest Act
○ Definition interpreted through decisions of Judiciary
T.N. Godavarman Thirumulpad v. Union of India (1997)

The term ‘forest’ must be understood according to its dictionary

meaning and that it covers all statutorily recognized forests. It was
further explained that the term ‘forest land’ will not only include
‘forest’ as understood in the dictionary sense, but also any area
recorded as a forest in the government record irrespective of ownership
● Before Godavarman, the definition of forest was restricted to mean
“reserved forests.”

● The order of the Supreme Court was in the context where state
governments were interpreting the meaning of the term ‘forest’ narrowly
to include only reserved forests and going ahead with de-notification of
other forests for non-forest purposes

● The Supreme Court’s intervention brought all forests within the purview
of the term ‘forest’ and thus prevented such misuse of the legal provisions
by states.
Forest Produce:

•The term forest produce has been defined in the Act

“forest-produce” includes—
A. the following whether found in, or brought from, a forest or not
timber, charcoal, caoutchouc, catechu, wood oil, resin, natural varnish, bark,
lac, mahua flowers, mahua seeds, kuth and myrabolams, and
A. the following when found in, or brought from a forest, that is to say:-
(i) trees and leaves, flowers and fruits, and all other parts or produce of trees,
(ii) plants not being trees (including grass, creepers, reeds, and moss), and all
parts or produce of such plants
(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax,
and all other parts or produce of animals, and
(iv) peat, surface soil, rock, and minerals (including limestone, laterite, mineral
oils, and all products of mines or quarries);
Ø “tree” includes palms, stumps, brush-wood and canes.
CATEGORIES OF FORESTS

1) Reserved Forest
● State Government empowered to declare any forest land or wasteland
which is the property of the government as a Reserved Forest
● Can de-notify a reserved forest too
● This area is strictly regulated area under control of government
● Govt owns all or part of forest produce from the area
● No right could be acquired over reserved forests other than succession,
grant or contract by govt
● Clearing trees, fishing, hunting, setting fire are prohibited activities and
punishable offences
2) Protected Forest

● State govt can notify any forest that it owns which is not a reserved
forest as a protected forest
● No prohibition of activities in protected forests
● However, govt can regulate activities such as reservation of trees,
burning charcoal, quarrying of lime, etc through notifications
3) Village Forest

● State govt can assign rights over reserved forest or protected forest to
any village
● The community can access the forest in return of protection of forest
ecosystem
● Govt can frame rules to give such rights
● All rules applicable to reserved forest apply to village forests except
for the assigned rights
4) Non Government Forests

● The Act gives power to state governments to notify any land that is not
a government property as a forest.
● Several activities such as clearing of land, pasturing, setting fire,
cutting of trees, removal of timber and burning of charcoal can be
regulated or prohibited by state govt
● Regulation is done for preservation of public health, maintenance of
water supply in rivers, springs, and tanks, protection against storms
and floods, preservation of soil, protection of roads, bridges, railways,
etc.
Forest Settlement Officer

● To enquire and determine the existence, nature, and extent of any

rights related to land or forest produce alleged to exist in favor of any
person.
● For the inquiry, the FSO shall have the powers
○ To enter upon any land and survey, demarcate and make a map
○ Equivalent powers that of a Civil Court in the trial of suits.
 Settlement of Claims
● The state government is first required to issue a notification declaring
its intention to notify any area as a reserved forest
● It shall appoint an FSO to inquire into the existence of any rights of
the local people.
● FSO shall issue a proclamation in every town and village in the
neighborhood of the land specifying the limits of the proposed forest
and give time of at least 3 months.
● After taking statements of those who have rights over land or need
compensation, s/he shall inquire into them
● Thereafter, the FSO shall pass orders admitting or rejecting the
claim over any land
● FSO has to ensure that minimum or no loss is to be faced by the
person making the claim.
● Once the existing rights have been settled under the Act, no new
rights in the notified land can be acquired
 Criticism of the IFA, 1927

● Demonstrates the exploitative intention of the colonial state

● Idea of a reserved forest and state monopoly over forests paved the way for the
commercialization of forests to supply materials for forest-dependent
industries and infrastructure-building activities
● Took away the customary rights of forest-dependent tribal and rural
populations.
● Eviction of traditional forest communities from their homes and forests.
● By inequitable privatization of forest resources in favor of a small section of
society, the law worked against the interests of the rural and tribal population
● The concept of Permit System prevailed where activities were legalized with
government permit and the same activities were criminalized without
government permit.
● Mechanisms, such as levy of duty on timber or forest produce, control over the
products in transit, criminal sanctions against violation of rules relating to
timber and forest produce, and conferment of police powers on forest
personnel, establish that the law was initially formulated with the object of
revenue collection.
● This revenue-oriented approach, not conducive to efficient eco-management,
continued for a long time even after the country gained independence.
● Illegal felling and indiscriminate encroachment were the repercussions ; led to
large-scale deforestation and deterioration of forest habitat, flora and fauna
 FOREST CONSERVATION ACT

● FCA enacted to deal with widespread degradation of forests in India

● Initially only 5 sections
● Objectives of the Act
○ restriction on the use of forest land for non-forest purposes
○ control of de-reservation of forests that have been reserved under
the Indian Forest Act, 1927.
● Act primarily amended in 1988 and 2023
Non- Forest Purposes
The FCA defines ‘non–forest’ purpose as breaking or clearing of any forest land or portion
thereof for
● the cultivation of tea, coffee species, rubber, palms, oil-bearing plants, horticultural
crops of medicinal plants
● any purpose other than reafforestation,
● but does not include any work relating or ancillary to conservation, development, and
management of forests and wildlife, namely, the establishment of check-posts, fire
lines, wireless communications, and construction of fencing, bridges, and culverts,
dams, waterholes, trench marks, boundary marks, pipelines or other like purposes

➔ Forests can be dereserved and use of forest for non-forest purposes can be allowed
Shift of Power
● FCA makes prior approval of the Central Government mandatory for the use of forest
areas for non-forest purpose.
● State Government has been empowered under this Act to use the forests only for forestry
purposes
● T.N. Godavarman Thirumulpad v. Union of India (1997)

the term “forest land” will not only include “forest” as understood in the dictionary
sense but also any area recorded as forest in the Government record irrespective of
the ownership. Therefore, the provisions made for the conservation of forests under
the FCA, 1980 must apply to all forests irrespective of the nature of ownership or
classification thereof.
The SC further held that --

“in view of the meaning of the word “forest”, it is obvious that prior
approval of the Central Government is required for any non-forest
activity within the area of any “forest”. Accordingly, all ongoing activity
within any forest in any State throughout the country, without the prior
approval of the Central Government, must cease forthwith. “
Forest Clearance for use of Forest for non-forest purpose

● Every user agency (person, organization, Company, Department of the Central or State
Government) that wants to use any forest land for non-forest purposes shall propose the
Nodal Officer of the concerned State Government

● The Nodal Officer shall then send the proposal to the concerned Divisional Forest
Officer and the District Collector within ten days of the receipt of the proposal

● The Divisional Forest Officer shall examine the factual details and feasibility of the
proposal and forward his findings to the Conservator of Forests

● The Conservator of Forests shall examine the factual details and feasibility of the
proposal, carry out a site inspection and forward the proposal along with his
recommendations to the Nodal Officer.
● The Nodal Officer, through the Principal Chief Conservator of Forest, shall forward
the proposal to the State Government along with his recommendations
● If State govt doesn’t want to dereserve then forest for non-forest purpose, it shall be
intimated to user agency within 30 days of receipt of proposal from Nodal Officer
● If State govt wants to divert land for non-forest purpose, it shall forward the same
to Central Governent within 30 days along with recommendations.
● According to FCA, a Forest Advisory Committee (FAC) is to be appointed to
appraise applications of projects that require to fell trees or the use forest areas.
● The Central Govt takes advice and recommendations of the FAC and may grant
approval to the proposal or may reject it.
Forest Advisory Committee

● Primary function is to advice the Central government on matters regarding grant of

approval for converting a forest into non- forest purpose and other related matters
regarding conservation of forests

● While tendering advice, following factors should be considered

○ If the forest land forms a part of nature reserve, wildlife sanctuary, etc

○ Use of land is for agricultural or rehabilitation purposes

○ No other alternatives than conversion to non-forest land

○ Extent of direct and indirect impact of diversion of forest land on forest,

wildlife and environment
Case Laws related to Forest Conservation Act

● TN Godavarman orders – around 2000 interlocutory applications and hundreds of

orders [Continuing Mandamus]. Few orders relevant to FCA issued by the Supreme
Court in various applications are
○ Running of sawmills within 10 km radius and mining of minerals within a 100
km radius were non-forest purposes requiring permission from the Central
Government. (1996)
○ Complete ban on the felling of trees in the tropical evergreen forests of
Arunachal Pradesh. Movement of cut trees from any of the seven North-Eastern
states to any other states was also banned. (1996)
○ When forest land is used for non-forest purposes, provisions must be made for
compensatory afforestation. (2006)
● Ambica Quarries (1987) -- Supreme Court has held that if a license had
to be renewed after the FCA came into the picture, the approval can only
be granted by the Central government.

● Role of judiciary criticized as it got involved in micromanagement of

forests in India by assuming regulatory and legislative functions.
 Forest Conservation (Amendment) Act, 2023
Objectives of the amendment are

● To build forest carbon stock by raising plantations.

● To make land available for developers to meet their legal obligation
towards compensatory afforestation in lieu of forest land diverted for
development projects
● To increase the forest and tree cover to one-third of its land area
● to provide for provisions relating to conservation management and
restoration of forests, maintaining ecological security
● sustaining cultural and traditional values of forests facilitating economic
needs and carbon neutrality
Salient features of 2023 amendment to FCA

1) Name of the Act changed to Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980
2) Coverage of the land

Section 1A inserted specifying land which shall be covered under FCA

● Land declared or notified as a forest according to Indian Forests Act or other law
● Land not covered under the above clause but recorded as ‘forest’ after 1980
● Land which was not converted to use from forest purpose to non-forest purpose

[This excludes the dictionary meaning definition of forests and excludes deemed forests
amounting to 2 lakh sq km area]
 Ashok Kumar Sharma, IFS (Retd) & Ors v. Union of India & Ors [2024]
(interim order)
● Petitioners raised the apprehension of lands which are 'forests' as per the
Godavarman judgment- getting diverted for non-forest use as they are
not recorded as forests due to FCAA, 2023.
● Held: The Union government must use the “dictionary definition” of
forests in the process of identifying forest land in all states.
● The Court further directed all states and union territories to identify
their total forest land per the dictionary definition of forest.
3) Exemptions from coverage of FCA

● Forest land alongside a rail line or public road

● Forest land which is
○ Within 100 km along international borders or LoC or LAC
○ Proposed to be used for construction of strategic project of national
importance and national security
○ Upto 10 hectares for security related infrastructure
○ Proposed to be used for defence, paramilitary forces, public utility projects,
etc
○ The exemptions are subject to Terms and Conditions such as planting trees to
compensate felling of trees.
4. Expansion of term ‘non-forest purpose’

Apart from the old definition, it now says that non-forest purpose is for any purpose other
than reafforestation but does not include work relating or ancilliary to conservation,
development and management of forests and wildlife, such as

● Silviculture operations
● Establishment of checkposts and infrastructure for forest staff
● Establishment and maintenance of fire lines
● Wireless communications
● Construction of fencing, boundary marks or pillars, bridges, check dams,
trenches, pipelines, etc
● Establishment of Zoo and safaris in forest areas other than protected areas
● Eco-tourism facilities
 Criticism of FCA Amendment Act, 2023

● Changing the scope of forest – Eliminates restrictions on commercial activity on land that
hasn’t been officially classified as forests by saying that only lands previously designated as
‘forest’ in official records will be considered ‘forests’. This eliminates all those lands which
are under the dictionary meaning of forest

● Exempted Lands – No definition of strategic linear projects of national importance; Exclusion

zone encompasses almost entire North East because of the 100 km rule and they shall now
have no say if the government intends to convert the lands for non-forest purpose

● Increased Centralized control of forests although forest is a subject in Concurrent list

● Allowed commercialization of forests by allowing establishment of zoos, safaris, ecotourism

parks by not permitting these lands come under the ambit of FCA
 Compensatory Afforestation
● The most important requirement/condition for prior approval of
the Central Government for diversion of forest land for non-forest
purposes
● Purpose of compensatory afforestation (CA) is to compensate the
loss of 'land by land' and loss of 'trees by trees'.
● In line with the ‘polluter pays’ principle, the entity responsible for
such land diversion is also liable to contribute funds for
establishing the compensatory forest fund.
● In the case of TN Godavarman (2002), the Supreme Court
observed that the user agency shall be solely responsible for
compensatory afforestation.
● ‘User agency’ will deposit the stipulated amount to undertake
compensatory afforestation to mitigate the negative impact of
forest land diversion.
● In 2002, the Supreme Court in the same case ordered that a
Compensatory Afforestation Fund (“CAF”) be created in which
all the contributions for the purpose of compensatory
afforestation, Net Present Value (NPV), penal CA, etc of forest
land, had to be deposited
● CA was to compensate for the loss of tangible as well as intangible
benefits from the forest lands which were diverted for non-forest use.
● Such funds were to be used for
○ natural assisted regeneration,
○ forest management,
○ infrastructure development,
○ wildlife protection and management,
○ supply of wood and other forest produce
○ other allied activities.
● The Court observed that the fund would not be part of general revenues
of the Union, of the States or part of the Consolidated Fund of India.
● In 2004, the MoEF constituted the Compensatory Afforestation
Fund Management and Planning Authority (“CAMPA”) to
overlook and manage the Compensatory Afforestation Fund
(CAF)

● For better regulatory oversight and institutional management of

the fund, the Compensatory Afforestation Fund Act, 2016, which
legalised the status of CAMPA at the national and state levels
● 90% of the CAF money is to tend to the states while 10% is to be
retained by the Centre.
● There shall be National Fund and State Fund
● A budget is prepared every year for the utilisation of funds
● CAMPA is also to facilitate necessary assistance in terms of
scientific, technological, and other requisites
● Drawback: Funds are underutilised, diversion of funds is unequal,
loss of native species because afforestation is being done with
non-native species, no provision for consultation before CA
● The law says that land selected for afforestation should otherwise
be contiguous to the forest being diverted so it’s easier for forest
officials to manage it. But if no suitable non-forest land is found,
degraded forests are chosen for afforestation.
● In several states like Chattisgarh, Odisha, and Jharkhand where
the intensity of mining is incredibly high, finding the non-forest
land for afforestation to complete/finish for the loss of forest may
be a enormous task.
 FOREST RIGHTS ACT, 2006

Objectives of the Act:

● To undo the historical injustice occurred to the forest dwelling

communities
● To ensure land tenure, livelihood and food security of the forest
dwelling Scheduled Tribes and other traditional forest dwellers
● To strengthen the conservation regime of the forests by including the
responsibilities and authority on Forest Rights holders for
sustainable use, conservation of biodiversity and maintenance of
ecological balance.
Forest dwelling Scheduled Tribes:

members or community of the Scheduled Tribes who primarily reside in

and who depend on the forests or forest lands for bona fide livelihood needs and
includes the Scheduled Tribe pastoralist communities

Other traditional forest dweller:

any member or community who has for at least three generations prior to
the 13th day of December, 2005 primarily resided in and who depend on the
forest or forests land for bona fide livelihood needs

Each generation gap- atleast 25 years

Typology of Rights in the FRA, 2006

A) Rights on all forest land which secure individual or community tenure or both

➔ Right to live in forest land under individual/ common occupation for habitation/
cultivation.
➔ Right of ownership, access to collect, use and dispose minor forest produce
➔ Community rights such as fish, grazing feed, etc
➔ Rights to protect, regenerate, conserve or manage any community forest resource
➔ Access to biodiversity and community right to IP for Traditional knowledge
➔ Right to in situ rehabilitation where they have been illegally evicted or displaced
B) Developmental rights/ Facilities

➔ Health and Educational facilities

➔ Fair price shops
➔ Electric and telecommunication lines
➔ Drinking water supply and water pipelines
➔ Water harvesting structures
➔ Minor irrigation canals
➔ Roads
➔ Non-conventional sources of energy
C) Right against EVICTION

No member of a forest dwelling Scheduled Tribe or other traditional

forest dwellers shall be evicted or removed from forest land under his
occupation till the recognition and verification procedure is complete and
proved that s/he is disqualified.
Procedure for Claims under the FRA, 2006

● Gram Sabha:
○ Village Assembly consisting of all adult members of village
○ Initiating authority for determining the nature and extent of
individual or community forest rights
○ It shall receive and hear the claims
○ Then pass a resolution on claims on forest rights after giving
reasonable opportunity to interested persons
○ Forward to Sub-divisional level committee
● Sub- Divisional Level Committee:
○ Examine the resolutions and maps of Gram Sabha resolutions
○ Ascertain the veracity of claims
○ Forward to District Level Committee
○ Can also hear persons aggrieved by the resolution of Gram
Sabha
● District Level Committee:
○ Final decision wrt claims is taken
○ Decision about forest rights is final and binding
○ Can also hear persons aggrieved by the decision of Sub-
divisional Level Committee

● State Level Monitoring Committee:

○ To monitor the process of recognition and vesting of forest
rights
 Niyamgiri Hills case
[Orissa Mining Corporation v MoEF] 2013

FACTS:
● Vedanta Aluminium Ltd signed an MoU with Odisha State for
construction of mining plant and refinery for bauxite at the Niyamgiri
Hills
● Niyamgiri hills consist of the Dongria Kondh tribal population who depend
on the hills for their livelihood
● People were not aware about the plans until quite late in the approval
process due to systematic lack of information
● Vedanta group tried to persuade the locals to evade land in return for
‘compensation’ and ‘development’.
● Environmental Clearance was also obtained for the project after the
project proponent had undertaken to pay towards compensatory
afforestation, development activities, etc despite all 12 villages around
were against the Mining activity proposed.
● However, later Forest Clearance was denied later after widespread
protests as it would lead to the violation of the FRA, EPA and FCA
● OMC had approached the SC to quash the order of MoEF for rejecting
the Forest Clearance at Niyamgiri Hills.
ISSUE

Whether there is a violation of the FRA and other rights associated with
the locals in the issuance of Prior EC and whether mining can be allowed
at the Niyamgiri Hills?
JUDGMENT (Excerpts)

● FRA enacted to confer powers on Gram Sabha to protect individual

and community rights
● FRA enacted to to recognize and vest the forest rights and occupation
in forest land in forest dwelling STs and other TFDs who have been
residing in such forests for generations but whose rights could not be
recorded and to provide for a framework for recording the forest
rights so vested and the nature of evidence required for such
recognition and vesting in respect of forest land
● Legislative intention is clear that the Act intends to protect custom,
usage, forms, practices and ceremonies which are appropriate to the
traditional practices of forest dwellers
● FRA is a social welfare or remedial statute
● The Act protects a wide range of rights of forest dwellers and STs
including the customary rights to use forest land as a community
forest resource and not restricted merely to property rights or to
areas of habitation.
● We are, therefore, of the view that the question whether STs and
other TFDs, like Dongaria Kondh, Kutia Kandha and others, have
got any religious rights i.e. rights of worship over the Niyamgiri hills
have to be considered by the Gram Sabha.
● If the project in any way, affects their religious rights, especially their
right to worship their deity, known as Niyam Raja, in the hills top of
the Niyamgiri range of hills, that right has to be preserved and
protected.
● We are, therefore, inclined to give a direction to the State of Orissa to
place these issues before the Gram Sabha. On the conclusion of the
proceeding before the Gram Sabha determining the claims submitted
before it, the MoEF shall take a final decision on the grant of Stage II
clearance for the Bauxite Mining Project in the light of the decisions
of the Gram Sabha within two months thereafter
 AFTERMATH

● All 12 Gram Sabhas rejected the mining proposals in question

● Local community’s cultural rights got priority or state’s property
rights over minerals were made subject to local community’s cultural
rights.
● The project has become a symbol of tribal resistance.