Indian forest act faces challenge in Supreme Court


A herd of wild Asian elephants in Assam, India.

Elephants in India often roam outside official forest reserves.Credit: David Talukdar/Getty

India’s Supreme Court has agreed this week to hear arguments in a challenge to a controversial new forest law. An official request for a hearing was filed to the Supreme Court last Octoberber by 13 former officials in the forest service and environment ministry, who say the amended Forest Conservation Act is unconstitutional. The next hearing, which is yet to be scheduled, is the latest in a series of protests against the law — which some scientists say makes it easier to clear forests for development and erodes the rights of millions of people who depend on these ecosystems.

M. K. Ranjitsinh Jhala, a former departmental head at the Ministry of Environment and Forests, and a co-petitioner in the case, says the revised act would harm the ecology of India and the livelihoods of forest-dwelling people. “There’s nothing in that act that we can see is going to help nature conservation, food security, ecological security and livelihood,” he says.

The Forest Conservation Act was originally created in 1980, to balance the demands on forests from wildlife, local communities, businesses and the government. It protected all forested land from being used for agriculture, timber plantations, logging or other commercial purposes. If land-holders wanted to develop the land, they had to submit plans to the central government for approval, and “compensatory afforestation” was often required.

The Indian Parliament voted to amend the act last August, opening up large areas of forests for development and exempting some new projects from requiring approval. The act was to come into force in December, but is paused pending the outcome of the hearing.

The passage of the bill through parliament took place against a backdrop of protest from scientists, environmental groups and tribal people. India is described by ecologists as megadiverse, containing about 8% of all recorded species. Forests covered 21% of the country in 2021, according to the India State of the Forest 2021 report. And only 5.3% of it is strictly protected. Some wide-ranging mammals, such as the tiger (Panthera tigris) and the Asian elephant (Elephas maximus), live beyond these protected areas, in adjoining lands. The new act could fragment their habitats, leading to increased human–wildlife conflict, says Sandeep Sharma, an ecologist at the German Centre for Integrative Biodiversity Research in Leipzig, who is not a signatory to the petition. Fragmentation would also reduce the ecosystem’s ability to provide services to humans, such as fresh water or clean air, he says. “The water from a contiguous patch of forest is different than the water you get from a fragmented forest,” he says.

Nature contacted India’s Ministry of Environment, Forest and Climate Change for comment, but it did not respond by the time of publication.

The act

One key change to the act hinges on the legally accepted meaning of ‘forest’. A Supreme Court ruling on the act in 1996 defined the word according to the dictionary, which per the Oxford English Dictionary is “a large area covered chiefly with trees and undergrowth”. Now, the government recognizes only areas registered in official records as forests.

Ecologists estimate that 27.6% of India’s forest cover, an area that is roughly the size of Uganda, is unrecorded and would lose protection. The environment ministry has asked states to map and record their forests within one year, but this will prove challenging, says Meenal Tatpati, an independent lawyer and environment researcher based in Pune, India. She says the Supreme Court mandated in 1996 that states set up expert committees to identify unrecorded forests, but 27 years later, most still have not done so.

The amended act also grants exemptions from review for national-security or defence reasons. But Ranjitsinh says the law is imprecisely worded, which would allow interpretations that “are not quite according to the spirit of the law, and sometimes not even according to the letter of the law”.

Projects within 100 kilometres of India’s borders that are of “national importance” or that serve “national security” purposes are exempt from review under the act. This covers a vast region hosting numerous wildlife sanctuaries and forests, Sharma says. The borderlands include rare forests in the Andaman and Nicobar islands and are home to species of global significance, including vulnerable snow leopards (Panthera uncia) in the Changthang Wildlife Sanctuary in the Himalayan desert and the critically endangered great Indian bustards (Ardeotis nigriceps) in Rajasthan.

It also exempts parcels of land alongside roads and railway lines from development approval. Although the exempt parcels are small, they could add up to a large area: India has more than 144,000 kilometres of highways and 123,000 kilometres of tracks.

A snow leopard in Spiti Valley in the Indian Himalayas.

Snow leopards (Panthera uncia) inhabit areas within 100 kilometres of India’s borders.Credit: Shivang Mehta/Getty

The amendment has made the steps for obtaining consent from tribal peoples less prescribed. Soumitra Ghosh, a forest-rights activist at the All India Forum of Forest Movements, based in Siliguri, says more flexibility in the approvals process might allow some developers to cut corners in consulting with forest-dwellers. Some 300 million people live in villages bordering forests and directly depend on them, according to the India State of the Forest 2019 report. These include tribal people, some of whom have lived in and around the forests for millennia.

International commitments

The changes to the act could also imperil India’s international commitments, says Tatpati. Under the 2022 Kunming–Montreal Global Biodiversity Framework, India has promised to conserve 30% of its land and oceans. It says that 27% is already under some kind of protection.

To reach the 30% target, the Indian government plans to encourage local governments, communities and private landowners to declare areas such as village commons, community forests, artificial water bodies and canals as protected under the classification of other effective area-based conservation measures (OECMs).

But Sharma says that community and privately owned forests classified as OECMs would not be protected under the amended act. The owners could choose to declassify these areas at any point, making India’s biodiversity target hostage to the whims of landowners.

Sharma says that India is nonetheless likely to meet its 30% target, because the biodiversity framework does not specify the quality of conserved areas, only the quantity. A plantation forest created to replace an ancient stand would count, he says.

The court has not yet determined when it will hear arguments from the petitioners and the government. Ranjitsinh hopes the Supreme Court will strike down the entire amended act, reverting to the original. “It depends upon the court,” he says. “We all hope and pray it should be successful.”

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