Streamlining forest protection law
THE FOREST Conservation Act (FCA) was enacted in 1980 to check the widespread and wanton felling of trees on developmental project sites. But the act's stringent provisions -- especially one requiring central clearance for all projects -- took away control of forest land from state governments and left people who lived in and around forests at the mercy of New Delhi.
While most environmentalists fully support the act and seek to make it more strict, state governments are clamouring for a role in project decision-making and are unwilling to let only the Centre wield power over forest areas. Seven states were reportedly finalising a memorandum asking Prime Minister P V Narasimha Rao to repeal the FCA. Rajasthan chief minister Bhairon Singh Shekhawat complained some development projects in his state, as also Uttar Pradesh, Madhya Pradesh, Himachal Pradesh, Orissa, Haryana and Gujarat, had been delayed by upto 10 years by FCA and their costs had been pushed up tremendously. "If we want to put up an electric pole worth Rs 200, the cost of permission required from the Centre is Rs 2,000," said Shekhawat.
The Ministry of Environment and Forests (MEF), caught between environmentalists and state governments, seems to be following a policy of periodically modifying provisions of the act to streamline procedures, so that essential projects are cleared quickly.
The Union government has once again decided to revise the FCA rules, this time to meet objections of state governments to the tough provisions concerning diversion of forest land for non-forest purposes. But Union environment minister Kamal Nath explains the latest revisions, saying, "I am only streamlining and not liberalising the regulations."
FCA rules require compensatory afforestation of non-forest land to make up for forest land lost to a development project, except when the chief secretary of the state certifies that land other than forest land is not available. Forest officials have almost always been unwilling to accept afforestation on degraded forest land as compensation, arguing that this amounts to a net reduction of forest land. The forest policy requires at least 33 per cent of India's land cover to be forested.
The revised rules, for three categories of development projects, will allow compensatory afforestation on degraded forest land and will not insist on non-forest land, say government sources. Where protected forest area is used for rail, roads and canals, linear plantation alongside the construction will be allowed as compensatory afforestation. For towers and transmission lines of upto 220 kva, compensatory afforestation on double the area would be considered adequate on degraded forest land. In the case of mining in forests and river beds, compensation can be payment for plantation in degraded forest land of double the area. If the mining area exceeds 500 ha, then compensatory afforestation can be on an equivalent area of degraded forest land. In all cases, afforestation costs incurred by the forest department would have to be borne by the user agencies.
The rules were revised in May this year to empower regional conservators to clear proposals for diversion of upto 5 ha of forest land and to process cases involving areas upto 20 ha. Previously, their limits were 1 ha and 10 ha, respectively. The FCA was intended primarily to check the alarming rate at which forest land was being diverted for development projects. Forests were a state subject until 1976 and in the previous 30 years about 4.3 million ha of forest land was diverted to development projects. In 1976, a constitutional amendment shifted forests to the concurrent list and official estimates indicate that after the enactment of FCA, the rate of annual forest loss was lowered from an average of 150,000 ha to 15,000 ha.
But blanket application of FCA rules rapidly aroused controversy and state governments became furious because their powers were being curtailed. In addition, projects got delayed, their costs went up and people were irate because their access to forest land was curtailed. Compensatory afforestation became a problem in many states because of non-availability of non-forest land and because of restrictions on use of degraded forest land.
To circumvent these problems, the MEF started a land bank and asked state governments to create a pool of non-forest land. Nine states so far -- Arunachal Pradesh, Bihar, Gujarat, Haryana, Kerala, Maharashtra, Rajasthan, Uttar Pradesh and West Bengal -- have identified 231,503 ha of land for compensatory afforestation. The success rate of plantation under compensatory afforestation is claimed officially to be between 55 per cent and 80 per cent, but indications from the field are otherwise. A forest officer in the Nainital division commented, "Compensatory afforestation is rarely successful and is not a suitable substitute for the destruction of large tracts of old forest land."
Though the FCA has upset Centre-state relations, the rationale for the act is beyond question. The country needs not only to stop the felling of forests but also to increase afforestation. While the FCA gave forest officials considerable clout thanks to support from the Centre, it also had some peculiar fallouts. An official explained, "Ridiculously, till 1986, even one ha of land required clearance from the prime minister, as he then held the portfolio of environment and forests." Former bureaucrat and forestry expert N C Saxena explained the FCA was based on the premise that state governments have malafide intentions and are incapable of protecting their forests. The Sarkaria commission, which examined Centre-state relations, held that the objective of maintaining or increasing forest cover could not be fulfilled under FCA's provisions.
The biggest fallout of the Act has been procedural delays in clearing several projects. In Rajasthan, for instance, several bridge, culvert and transmission line projects are incomplete as sanctions for small patches of land have still to be issued. In Uttar Pradesh, only one project was cleared between 1987 and 1990 in Almora district and, in a village along the Dhanliganga, supports for a bridge were built on one side but not on the other because this side falls on forest land and clearance is still to come.
MEF officials insist projects are cleared in the stipulated time but state officials complain many projects are frequently referred back for more information, thus delaying final decision. State government officials say they lack the facilities to collect detailed information for small projects. The MEF's claim that there is hardly any delay in minor projects is not borne out by reality. Chief ministers have to come to Delhi frequently to get clearances for major projects. Narmada- and Tehri-type projects finally get cleared, but not a school for tribals or a traditional irrigation channel.
Resentful villagers
Villagers, in particular, resent delays in developmental work. Mateela villagers in Almora district blamed the FCA for the delay in construction of a road that was essential for transporting their horticulture crop to the market. What irks the villagers the most is that the FCA even holds up basic necessities, such as drinking water, irrigation channels, electricity transmission lines, dispensaries, schools and roads. Chandi Prasad Bhatt, a Chipko movement pioneer, complained to the Planning Commission FCA rules had blocked the implementation of drinking water schemes in about 60 villages in the Chamoli block and he strongly supports altering FCA rules to allow clearance of small projects at the state and district level. "While small projects based upon the long-felt need of the people get held up," he said, " large, ill-conceived projects like big dams that cause large-scale deforestation get conditional clearance." He asked caustically why a bureaucrat in New Delhi was assumed to care more than the people of Uttarakhand for their environment, when they are directly dependent it for their living and will even risk their lives when fighting forest fires. The implementation of the FCA has little scope for people's participation at the moment.
The FCA is also at the root of inter-department squabbles such as one in which Anjana Datta, forest officer in west Almora division, complained local PWD officials had incited the people against the forest department and encouraged them to cut down about 400 trees to enable construction of a road. Other cases include a proposed 66 kv transmission line between Joshimath and Srinagar being stalled because of differences between the hill development secretary and forest department officials, and dolomite mines in Maharashtra and limestone quarrying in Himachal Pradesh being held up because of the inter-departmental sniping. The lament of forest department officials is, "Other departments do not appreciate that the forest land has to be a matter of concern for all departments rather than an exclusive obligation of the forest department."
The FCA also is unpopular because it directly hits employment in traditional, forest-based industries. Says Madan Lal Shah, an advocate from Almora, "In Uttarakhand, employment in the resin industry, quarrying for slate bajri and rowdi, fisheries, and collection of herbs is declining because Central clearance for every piece of forest land to be used for other purposes is needed and not readily available."
However, flouting FCA laws is easy mainly because land records are messy and poorly kept. Politicians and industrialists also do not hesitate to take advantage of the ambiguous definition of "non-forest use." The FCA defines non-forest purposes to mean "breaking up or clearing any forest land or portion thereof for any purpose other than reafforestation." But the FCA does not specify what constitutes reafforestation.
Taking advantage of this loophole, state governments often give away forest land for use as industrial plantation to provide raw material needs. For example, the Karnataka government leased 75,000 acres of degraded forest to Karnataka Pulpwood Ltd for planting of eucalyptus trees to meet the firm's pulpwood needs. Nearby villagers, who had used the land for fodder and firewood, were helped by a number of organisations to go to court on this issue. The following year, the then MEF secretary T N Seshan issued a directive cancelling all such leases. The court, however, dithered over its ruling. Finally, the company, battered by the resistance, abandoned the project. Shortly afterwards, the FCA was amended to define cultivation of crops such as tea, coffee and rubber as "non-forest" use.
In many instances, political leaders have flexed their political muscle to bypass the FCA. For example, former Gujarat chief minister Amarsinh Chaudhary reportedly pressured forest officials to approve a mining lease on 144 ha of forest land to B K Gadhvi, then Union minister of state for finance. And, when J B Patnaik was chief minister of Orissa, he denotified part of a wildlife sanctuary to allow private firms to set up beach resorts.
While the FCA has been instrumental in checking the profligate diversion of forest land, experience shows that it is unrealistic to apply uniform rules for the entire country. National policy should take into consideration regional disparities and local constraints and enact legislation accordingly. People's participation can help to set local priorities. Says minister Kamal Nath, "If local decisions can help villagers to get a school or any other basic amenity in close vicinity, why should I object?" But do we have a good mechanism for local decision-making?
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