Defending_the_Green_Realm_The_Forest_Con.pdf - SOCIAL AND ECONOMIC CHANGE MONOGRAPHS 44 Defending the Green Realm The Forest Conservation Act 1980 of

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Unformatted text preview: SOCIAL AND ECONOMIC CHANGE MONOGRAPHS 44 Defending the Green Realm: The Forest Conservation Act 1980 of India in Theory and Practice P J Dilip Kumar Institute for Social and Economic Change Bangalore 2015 Foreword This monograph on the Forest (Conservation) Act, 1980 of India was prepared by Dr P J Dilip Kumar, IFS (Retd.), on a Senior Fellowship of the Indian Council of Social Science Research, during 2013-2015. The author, who served in the Indian Forest Service for almost 39 years and retired as Director-General of Forests in the Ministry of Environment and Forests, Government of India, has obviously drawn on his long and varied experience in preparing this report. The central issue addressed in the monograph is, how does a nation make the choice between preserving its green wealth in the form of forests, grasslands, wetlands, water bodies, coastal zones and beaches, marine resources, and wildlife habitats and meeting the ever-increasing demands from the development sectors? One response was that of the British administration in India, by putting the extant tracts of good forest under the stewardship of a cadre of trained officers and field staff, called the Forest Department. Thanks to this law and the process of reservation of forest lands, India today can be justly proud of the fact that in spite of having less than 1% of the world’s forest area with 15% of the world’s human population and 19% of the world’s cattle, there is still some 69 million hectares of forest cover standing today, which amounts to some 21% of the land area. With the rising consciousness of the environmental value of the forests and an awareness that they were balanced precariously on a knife-edge, the Forest (Conservation) Act, 1980, was enacted during the Prime Ministership of Indira Gandhi, which has been lauded by conservationists as a landmark act of political bravery and practical sagaciousness in ensuring the safety of India’s forests. However, environmental activists, on one side, feel that the government is too sympathetic to the demands of the industrial lobbies, and the forest department’s approach is too top-down and unsympathetic to the needs and rights of the local communities. On the other hand, development protagonists complain that the Forest Conservation Act is slowing down the national development programme, increasing costs and introducing too much delay and procedural complications. The whole process seems to be arbitrary and unpredictable, because the processes and criteria are not consistent or clearly enunciated. Hence efforts are continually being made to dilute the Act in its operation, and the forest department is made the villain from both ends of the whole environment-versus-development debate. The author himself recognizes that there is a need to explain the working of the Forest Conservation Act in all its complications, so that the public and the interested stakeholders are better informed and equipped to deal with it in the spirit in which the law was made. It is hoped that the present monograph, by a senior and now retired member of the Indian Forest Service, will also contribute in its own small way to this building up of public understanding. In conclusion, I could not do better than to quote a few lines from one of the paper’s reviewers: “What makes this exposition very useful is not so much the discussion of the Act itself, but of the manner it is administered through the various Rules, and over time, how this practice has been shaped by various Court decisions. For example, how do we define forest? So much depends on this. I, for one, leaned a great deal from the detailed discussion of this simple question. What are ‘cut offs’? What is a ‘Go-No Go’ classification? What are the different groups with an interest in the outcomes of each of these? The book has many such insights to offer.” I am happy that ISEC could support the author in his efforts to “think, ruminate and write” on this crucial topic, and hope that it will suggest avenues for further studies into the political economy of natural resources conservation and sustainable development. December 2015 Bangalore K S James Acting Director, ISEC iv CONTENTS Acronyms and Abbreviations Acknowledgement INTRODUCTION: NATURE AND SCOPE OF THE STUDY vi viii 1-5 I FEATURES OF THE FOREST CONSERVATION ACT, 1980 6-37 II MACRO-ANALYSIS OF FOREST CLEARANCES AND POLICY 38-48 III FOREST CONSERVATION LAWS COMPARISON WITH OTHER COUNTRIES 49-86 IV SECTOR CONTEXTS AND CASE STUDIES 87-161 V ANALYSIS AND SUMMING UP: DEVELOPMENT VERSUS REGULATION 162-166 NOTES 167-176 REFERENCES 177-183 ACRONYMS AND ABBREVIATIONS ANILCA: BLM: CA: CAMPA: CBO: CCF: CEC: CIL: CMPDI: CSR: DCF: DGF: EC: EIA: EPA: EWG: FAC: FAO: FCA: FD: FRA: FRH: FRI: FSI: GDP: GFC: GIM: GoM: GP: GS: H-A: Ha: IFA: JFM: JLR: JVC: Kgoe: LNG: MDF: MEF: mha: MoEF: Alaska National Interest Lands Conservation Act of 1980 Bureau of Land Management (USA) Compensatory Afforestation Compensatory Afforestation Management & Planning Agency Community-Based Organization Chief Conservator of Forests Central Empowered Committee Coal India Ltd. Central Mining Plan Design Institute Corporate Social Responsibility Deputy Conservator of Forests Director-General of Forests Environmental clearance Environmental Impact Assessment Environment (Protection) Act, 1986 Environmental Working Group ( ), Forest Advisory Committee Food & Agriculture Organization Forest (Conservation) Act, 1980 Forest Department Forest Rights Act Forest Rest House Forest Research Institute (Dehradun) Forest Survey of India Gross Domestic Product Gross Forest Cover Green India Mission Group of Ministers Gram Panchayat Gram Sabha Hasdeo-Arand (coal field) Hectare (mha: million hectare) Indian Forest Act Joint Forest Management Jungle Lodges & Resorts, Karnataka Joint Venture Companies Kilogram Oil Equivalent Liquefied Natural Gas Moderately Dense Forest Minister for Environment & Forests million hectares Ministry of Environment & Forests vi mty: NAP: NBWL: NCA: NF: NFP: NGT: NIB: NGO: NP: NPV: NREGA: NTCA: NTFP: NTPC: OED: OF: PAs: PF: PMO: PPP: PPP: PRI: PSU: R&R: RF: ROD: SAF: SAG: SAM: SC: SFR: VDF: VFC: WB: WFC: WII: WLPA: WLS: million tonnes per year National Afforestation Programme National Board for Wildlife National Commission for Agriculture National Forest (USA) National Forest Policy National Green Tribunal National Investment Board Non-Governmental Organization National Park Net Present Value National Rural Employment Guarantee Act National Tiger Conservation Authority Non-Timber Forest Product National Thermal Power Corporation Operations Evaluation Department (World Bank) Open Forest Protected Areas Protected Forest Prime Minister’s Office Purchasing Power Parity Public-Private Partnership Panchayati Raj Institution Public Sector Undertaking Resettlement and Rehabilitation Reserved Forest Record of Decision (US Forest Service) Society of American Foresters State Advisory Group Sahabat Alam Malaysia Supreme Court State of Forest Reports Very Dense Forest Village Forest Committee World Bank Weighted Forest Cover Wildlife Institute of India (Dehradun) Wild Life (Preservation) Act, 1972 Wildlife Sanctuary Indian big numbers: Keywords: Lakh – 100,000 or 0.1 million; crore – 10 million Forest conservation, governance, clearances, non-forestry uses, diversion, sustainable management, natural resources, Godavarman judgment vii Acknowledgement This monograph is the outcome of the study project taken up by me as a Senior Fellow of the ICSSR at the Institute for Social and Economic Change (ISEC), Nagarbhavi, Bangalore-560072 from October 2013 to September 2015. I am indeed grateful to the then Director of ISEC, Dr R S Deshpande, for having so generously supported my candidature, and of course to the ICSSR, New Delhi, for providing me with this opportunity. I also thank the Registrar, ISEC, and all their administrative staff for extending all support and courtesy to me in this endeavour, especially the library and administrative resources. I am also grateful to all the faculty of ISEC, especially of the Centre for Ecological Economics and Natural Resources (CEENR), for providing a cordial fellowship and congenial working environment and extending their moral and academic support. I owe particular thanks to Prof. Anand Inbanathan, who took this paper up for publication, to my reviewer who gave an extremely detailed and encouraging set of comments, and to the dashing Associate Editor of ISEC, Mr E Vishnuvardhan Reddy, and his staff who saw it through to print. As mentioned elsewhere, the main inspiration for this paper has been my long service in the forest department, where I have, along with my colleagues, shouldered the responsibility of carrying out the mandate of the forest policy while at the same time achieving a balance between conservation and development, not as an academic exercise, but as a daily occupation. I therefore have to acknowledge my debt to all these colleagues in the forest and other departments, the ministries in the state and at the Centre, and the concerned staff. I am also deeply indebted to the experts, both academic and administrative, on the various advisory and technical committees with which I have been associated, who have over the years improved my own understanding, and thus indirectly contributed to this study. Needless to say, all responsibility for any shortcomings and errors is mine alone, and I would be happy to receive any comments or suggestions to improve this report. I hope it will be of some interest and use to field practitioners, implementors and industry people, government departments, NGOs and others in their practical work as well as in the formulation of future policy initiatives. Further development of these themes may be found in my website, . Dilip Kumar P J viii INTRODUCTION: NATURE AND SCOPE OF THE STUDY How does a nation safeguard its green wealth in the form of its forests, grasslands, wetlands, water bodies, coastal zones and beaches, marine resources, and wildlife habitats? In the middle of the 19th century, this was the puzzle facing the colonial administrators in India and many other tropical countries of the world. In a reaction to the unbridled operation of the private profit principle that characterized the initial period of colonialism, the British administration chose the alternative of safeguarding the people from their own improvidence by putting the extant tracts of good forest under a separate department and a cadre of trained officers and men, called the Forest Department. The forests were notified as Reserved Forests and Protected Forests, and a comprehensive law was put in place to govern their formation, use and management (see Shyam Sunder and Parameswarappa 2014, for a recent recapitulation of this history). Like many other laws drawn up by the British government, this law has stood the test of time these one-and–a-half centuries, albeit in the teeth of resistance from the communities and politicians, and bitter and impassioned criticism by people-centered social scientists, activists, and even revenue officers and civil service administrators [see Lele and Menon (Eds) 2014, for a recent summary and exhaustive lists of references]. Thanks however to this law and the process of reservation of forest lands, India today can justifiably be proud of the fact that in spite of having less than 1% of the world’s forest area with 15% of the world’s human population and 19% of the world’s cattle, there are still some 69 million hectares (mha) of forest cover standing today, that amount to some 21% of the country’s land area, and which serve as an internal defence against ecological collapse and destruction of economic activity. From these forested uplands rise India’s major rivers, and in them is nurtured the astoundingly rich biodiversity of the country, including half the world’s population of tigers in the wild and major populations of Asian elephants and other fauna and a wealth of plant and tree species as well. This achievement is sometimes (and not kindly) dubbed a ‘miracle’ (Mazoomdar 2012) , as if forests are indestructible and self-sustaining. We should be at pains to stress that they are nothing of the sort, and without the long foresight of the colonial administrators, the dedicated work of the staff on the ground, and the culture and ethos of the people which engenders a natural respect for life and nature, a country with such a huge population and so many problems could hardly have succeeded in maintaining such a rich biodiversity stock and forest cover. Conscious of the knife-edge on 2 Defending the Green Realm: The Forest Conservation Act 1980 which the forests of the country are balanced, and to impose some brake on the reckless diversion of forests for other uses, the Indian Parliament passed the brief and pithy Forest (Conservation) Act, 1980 (referred to as the FCA). Much of the credit for this act of political bravery and practical farsightedness in ensuring the safety of India’s forests must go to the Prime Minister, Indira Gandhi, who steered the legislation.1 Despite these successes, there has been a concerted attempt at undermining this approach to forest and environmental conservation, on the grounds that it is an authoritarian, top-down approach. Two disparate schools of thought are seen to have developed to challenge the law-based approach to forest conservation: one based on social considerations like justice, empowerment, and constitutional provisions for decentralization and local governance (the so-called New Public Administration approach), and the other based on the supremacy of market mechanisms in achieving socially optimal solutions (the neo-liberal approach). In the first of these groups, who can be called ‘social ecologists’, exemplified by Gadgil and Guha (1992) and further developed in the recent publication already alluded to (Lele and Menon 2014), it is effectively argued that the State, as represented by the Forest Department, is an interloper in the rural realm, a vestige of a brutal colonial regime, and that it does not deserve to be continued in an independent India. On the concerted campaigning and lobbying by this coalition of social reformers, activists and academics, with the support of international NGOs and aid agencies, a separate legislation, popularly known as the Forest Rights Act, 2006,2 was passed by Parliament to set right the historic injustices to the forestdependent people, especially tribals, and to give the village communities the right to protect and manage the forests that were their traditional habitat. Consequently, there is now a sense of confusion regarding the respective roles of the forest department (FD), the Panchayati Raj Institutions (PRIs), and the village community, and on how the different laws are actually to be implemented: the Indian Forest Act (IFA), the Forest Conservation Act (FCA), or the Forest Rights Act (FRA), in each situation. The social ecologists have garnered an unexpected ally in their campaign to topple the forest departments from the commanding position, in the leaders of commerce and industry, who find the Forest Conservation Act an impediment to the smooth and fast promotion of their enterprises. The entire government apparatus is also with them, as the country has decided to accelerate the pace of development and economic growth. Hence efforts are continually being made to dilute the FCA in its operation, and the Introduction 3 Ministry of Environment and Forests (MEF), which looks after the FCA, is made the villain in the whole environment-versus-development debate. On the other hand, the Forest Service, which basically administers this important Act, has not been able to explain to the people of the country how it is doing so. The whole process seems to be arbitrary and unpredictable, because the processes and criteria are not consistent or clearly enunciated. Indeed a number of attempts have been made at the highest level to codify the regulations and simplify the procedures, but somehow these efforts seem to have skirted the real issues and gone after peripheral matters. This is in contrast to the environmental rules, which appear precise and scientific, although in practice there is much to be questioned about the practical aspects of the environmental safeguards and prescriptions as well.3 There is a need, therefore, to analyze and explain the working of the Forest Conservation Act in all its ramifications and applications. Existing writings on the subject tend to only present the salient points of the Act and the accompanying regulations, but do not address the deeper question of how the Act should be interpreted and implemented, leaving this essentially to the Courts to adjudicate. The Courts, on the other hand, also do need occasional guidance and reference material on which to base their judgments and directions. This is the task that is set out here in this work. The actual criteria and considerations that weighed in the decisions taken over the last few years are discussed, and hopefully this can serve as a basis for further work on developing a set of criteria and procedures to translate the intentions of the Act into practice without attracting the ire of the people at the receiving end of its requirements. The study is based mainly on the author’s practical experience in the forest department, and discussions with colleagues in the Forest Service and user agencies. It does not present a particular hypothesis or research undertaking in the scientific sense, but is more of a descriptive assessment of the subject in order to elucidate the working and thinking involved, and provide a basis for improvements to make the process more objective and transparent. It is an attempt to explain the working of the Forest Conservation Act, and how decisions are to be seen in the present environment of a vocal civil society and an economy that is straining at the reins of the control-and-command governance setup. Thankfully, the articulate and learned former minister of state for environment and forests has made a signal contribution to this effort by placing most of the relevant ministry orders and documents in the public realm, thereby reducing the sphere of speculation and increasing clarity (Ramesh 2015). 4 Defending the Green Realm: The Forest Conservation Act 1980 If a hypothesis needs to be cited, it may be phrased thus: that it is possible and feasible to develop an objective basis and scientific methodology to take decisions on the diversion of forest areas for non-forestry purposes; and that there are procedures and methodologies available to evaluate tradeoffs in an objective manner and arrive at socially optimal decisions. The principles usually suggested by natural resource economists would be that of abundant precaution, adequate risk management, assessment of the values of ecological and other services vis-à-vis developmental needs, and adequate compensation for both market and non-market losses, both actual and potential. These academic concepts are beyond the scope of this paper, which attempts a more modest assessment of ground reality in a number of typical cases, covering a broad spectrum of socio-economic situations and environmental concerns, that will try to lay forth the thinking and considerations that have gone into FCA decisions during recent years, along with a few suggestions here and there for improvement. Relevance and Application Because there has been little effort by the administration to explain the workings of the FCA, the situation as it obtains causes much frustration to the project proponents and development departments of the country, and much inter-departmental strife and mutual recriminations. All this is highlighted in an adverse manner in the press and media, leading to waning of investors’ confidence and difficulty in planning development and inve...
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