– The Morning Context. Akshay Deshmane
In early April this year, as most Indians were grappling with the second wave of COVID- 19, the environment ministry quietly announced on its website that it intends to amend the Indian Forest Act, 1927 by hiring the services of a private consulting agency or law firm.
Since most people were occupied with tackling the hellish consequences of the pandemic’s second wave at the time, the ministry’s announcement was not noticed widely. Whatever little criticism the announcement attracted in subsequent months was muted. But there continues to be a sense of unease among environmentalists about the government’s decision to hire a private firm for preparing the draft of a “comprehensive amendment” to the Indian Forest Act, or IFA.
This sense of unease could escalate into a full-blown controversy in the near future if the draft amendment is prepared exactly in line with some problematic ideas outlined by top officials during internal discussions on amending the IFA, a colonial-era law which provides a procedure for identification and notification of different categories of forests as well as regulates transit of forest produce like timber.
A review of official documents accessed exclusively by The Morning Context shows what some of these ideas are and why they are problematic. The documents show that the environment ministry initiated the process to amend the IFA after receiving letters from the NITI Aayog and Cabinet Secretariat in early 2020. Both bodies had asked the ministry to decriminalize relatively minor offences in laws under its administration in order to improve the “ease of doing business” and “unclog courts”. This was a direction given to all key ministries.
But the letters did not explicitly mention any offences from the Indian Forest Act which the NITI Aayog or Cabinet Secretariat were seeking to decriminalize. And yet, the environment ministry officials referred to communications by the two bodies as reason to resume the process of amending the Indian Forest Act.
In November 2019, a similar process was halted when a draft law containing several far reaching amendments to the IFA triggered strong protests and forced the government to fully withdraw it.
In 2020, the ministry officials not only adopted the policy prescriptions of the NITI Aayog and Cabinet Secretariat but also added some of their own to build an overall rationale for implementing a “comprehensive amendment” to the Indian Forest Act.
The documents show that top environment ministry officials were in favour of including provisions from two of the three controversial farm laws—one relating to sale of farm produce beyond government-controlled markets and another relating to contract farming—as blueprints for achieving multiple aims.
The aims outlined by the environment ministry officials include promotion of afforestation and tree plantation by private corporations and individuals to help achieve the national target of increasing forest cover to 33%; liberalizing markets for forest produce such as wood and wood-based products; and creating institutions for and providing market intelligence to forest producers. The provisions for achieving these aims, the officials noted, could be added within the Indian Forest Act as a new chapter or put together in the form of a separate law.
These ideas are significant because even though a private firm will prepare the first draft of the law, it will do so in consultation with senior environment ministry officials. So these ideas will certainly inform the drafting process even though the ministry has only obliquely referred to them in its call for expression of interest from private firms.
A cross-section of independent experts that this writer spoke with criticized most of these ideas, which are the environment ministry’s actual basis for its latest attempt to amend the oldest national forest law in the country.
Retired Indian Forest Service officer Manoj Misra feels there is “no relation whatsoever” between the ease of doing business initiative of the government and the amendment to the ÍFA. “India’s forests are needed to ensure the nation’s ecological security and not to fast forward its business interests,” he said.
Environmental lawyer Dr Arpitha Kodiveri emphasized the context of the ongoing climate crisis and said, “One would require laws that hold businesses accountable to deforestation as opposed to amending forest laws to ease the regulatory environment for them.”
Dr Sharad Lele, distinguished fellow in environmental policy and governance at the Bengaluru-based Ashoka Trust for Research in Ecology and the Environment, was equally critical. “The issue of ‘ease of doing business’ is completely irrelevant here. As per the National Forest Policy 1988, forests are not meant for business, but are meant for livelihoods. To bring in a focus on ‘ease of doing business’ is dangerous, because that hints at shifting the priorities laid down in the NFP 1988,” he said.
The latest attempt to amend the Indian Forest Act also seems set to attract controversy as it did the last time. Leave alone the draft, which is yet to be prepared, even the foundational ideas that inform the exercise of amending the law are contentious and problematic this time around.
Clearly, the latest attempt to amend the Indian Forest Act also seems set to attract controversy as it did the last time. Leave alone the draft, which is yet to be prepared, even the foundational ideas that inform the exercise of amending the law are contentious and problematic this time around.
We sent a detailed questionnaire to understand what environment secretary R.P. Gupta had to say about the criticism of this attempt to amend the Indian Forest Act. No response was received till the time of publication.
Let’s take a closer look at how these ideas came to be part of the environment ministry’s internal discussions and understand why independent experts find many of them unacceptable.
A tactical retreat?
When the environment ministry voluntarily decided to withdraw its then controversial draft to amend the Indian Forest Act on 15 December 2019, its public statement cited interests of tribals and the need to avoid any “misgivings” among them as the key reasons that informed the decision. This statement was made public a fortnight before the state of Jharkhand, where interests of forest dwelling communities matter significantly in politics, was slated to go to polls.
But in internal files, soon after then environment minister Prakash Javadekar and tribal affairs minister Arjun Munda made the announcement, officials made it clear that this was only a temporary withdrawal. An internal note dated 27 November 2019 clearly recorded this intent. “We may close this file. However, we will come up with a fresh proposal separately,” an internal note written by a senior ministry official said. Javadekar endorsed this and laid the matter to rest temporarily.
About two months later, in mid-February 2020, the ministry received communications from the NITI Aayog and the Cabinet Secretariat asking it to undertake an evidently agreeable task: decriminalization of minor offences for improving business sentiment and unclogging court processes.
A background note sent by the NITI Aayog explains the idea behind the exercise in detail. Here is an excerpt from the note: “The Hon’ble Finance Minister in the Union Budget 2020 speech mentioned that the Government of India will look into making amendments to the Companies Act 2013 and other laws where certain provisions impose criminal penalties on acts that are essentially civil in nature. In this context, NITI Aayog has undertaken an exercise to identify specific provisions under different acts where decriminalisation can be attempted. NITI has held discussions with several stakeholders on the most impactful aspects of decriminalisation that would augment investor comfort without compromising on the overall public interest. Actions taken on these aspects would go a long way in improving ease of doing business and will help unclogging the court system. It would be a significant step in the Government of India’s pursuit to achieve ‘Sabka Saath, Sabka Vikas, Sabka Vishwas’.”
On the face of it, there is hardly anything disagreeable about this idea. Further, in their communication to the environment ministry, neither the NITI Aayog nor the Cabinet Secretariat appear to have mentioned any offences codified under the Indian Forest Act for decriminalization. And yet, environment ministry officials used the letters as an opportunity to develop a detailed rationale for restarting the process of amending the Indian Forest Act.
Making a case for change
Two internal notes written by director general of forests Sanjay Kumar, India’s top forest official, lay down the basic ideas of how the government wants to amend the Indian Forest Act this time around. They have not been put out in the public domain though vague references to some of the ideas discussed in them have been included in the announcement seeking bids from private firms put out by the ministry in April this year.
These notes are based on internal consultations held last year between officials of the environment ministry and those of wildlife and forestry training and research institutions under it. They explain the government’s thinking about how it wants to amend India’s oldest forest Act, and what consequences that could result in, far more clearly than any other publicly available document so far.
In a detailed note written on 18 September 2020, Kumar explained that the Indian Forest Act “need(s) to be amended in a major manner in two main respects”. In the first instance, he addressed the aspect of decriminalizing minor offences that was sought by the NITI Aayog for all laws adversely impacting ease of doing business. Kumar wrote that there is a need to ensure that “graded penalty be prescribed as per severity of the offence” since first-time minor offenders are liable to receive the same punishment as notorious forest smugglers under the present law. So, as a positive intervention, he batted for a graded penalty.
But it is the second aspect that is contentious and bound to raise the hackles of environmentalists and other stakeholders. He wrote about the absence of any provisions in the law to promote private initiatives for growing forests and forest products. As a consequence, he felt, “the country’s wood and wood-based products imports have become substantial (approx. 42,000 cr/year) in the recent years while India has ceded ground to other countries even in respect of forest products and processes where it enjoyed global leadership in the past, e.g. sandalwood”. As a consequence of this, he wrote, the ministry was proposing to provide “promotional provisions in the Act”.
In another note written five days later, Kumar elaborated on this. “With regard to the promotional activities, the two bills on agriculture recently passed by the Parliament, namely the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act 2020 and the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act 2020 may also be referred, as they also have many promotional clauses in them which may be thought of applying for promotion of forestry as well,” he wrote. “In particular, the proposed amendment to the IFA should include liberalisation of markets along with a strong component on creating institutions for and providing market intelligence to the forest producers, extending credit facilities for forest development inputs, and protecting the producers through risk mitigating measures such as insurance.”
Taken together, what the two notes referenced above reveal is the environment ministry’s reconceptualization of India’s oldest law on forest by seeking to add the mandate of commercial forestry, on the lines of contract farming and corporate-driven agriculture.
Taken together, what the two notes referenced above reveal is the environment ministry’s reconceptualization of India’s oldest law on forest regulation by seeking to add the mandate of commercial forestry, on the lines of contract farming and corporate-driven agriculture.
What’s noteworthy here is that these ideas were taken seriously in government circles. The evidence for this is the fact that drafts of two laws to serve the two distinct purposes outlined by Kumar in his notes were prepared for consideration and discussion.
According to an internal note dated 16 December 2020, one of these was simply termed a “preliminary draft” of the Indian Forest Act and sought to address the important aspect of decriminalization of minor offences. But the second one had a rather elaborate name: Growing Trees Outside Forest (Promotion and Facilitation) Act 2020. The note explicitly states that this draft law was “prepared on the lines of the two bills on agriculture recently passed by the Parliament, namely the Farmers (Empowerment) and Protection) Agreement on Price Assurance and Farm Services Act 2020 and the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act 2020.”
All three farm laws, it may be noted here, were suspended by the Supreme Court in January 2021 due to protests by farmers who demanded their repeal.
In a third note written on 18 December 2020, Kumar explained that this “completely new framework” was needed “to promote afforestation and tree planting by private/parastatal/corporate individuals and organisations so they could take up afforestation and tree planting in their rational economic self-interest and thus provide major contribution to achieving National Forest Policy target of 33 percent Forest and Tree Cover.”
In the same note, despite a draft law having been prepared internally by the ministry, he also said that as the ministry’s capacity to draft such a regulation was “rather limited”, it had been decided to appoint an “external expert agency” for undertaking the task. In early January 2021, then environment minister Javadekar approved this and in April the ministry invited applications.
Yes to amendment, no to ideas
As stated earlier in this story, it is this conceptual foundation itself, notwithstanding the positive aspect of decriminalizing minor offences, which is bound to attract criticism from environmentalists and other stakeholders.
In separate conversations, we described the ideas mentioned in these internal documents to the three highly regarded experts on forest laws and policies mentioned earlier to understand their views on them. They expressed serious concerns about the consequences of following the approach mentioned in the notes.
This is especially noteworthy because two of the experts endorsed the idea of amending the British-era Indian Forest Act while one favoured implementation of a separate law to achieve the same goals. So all three of them did not entirely dismiss the ministry’s exercise to amend the forest law or draft a new law to address some pending issues. But they strongly critiqued the ideas.
Dr Lele criticized the government’s 33% forest cover target. “Firstly, the goal of increasing forest cover to 33% is an arbitrary one with no scientific basis. Secondly, given our demographic and livelihood landscape, it is simply unachievable unless draconian measures are used to plant and protect trees. And thirdly, this will yield tree cover, not forest cover,” he said.
There seems to be a complete misunderstanding about what forests are and are for. Forests are not privately owned farmland meant simply to produce for the market.Dr Sharad Lele, Distinguished Fellow, ATREE
In response to our question about the use of two contentious farm laws as blueprints for promoting afforestation and commercial forestry by the environment ministry, Dr Lele said, “There seems to be a complete misunderstanding about what forests are and are for. Forests are not privately owned farmland meant simply to produce for the market. Even forests managed by communities will always be for a combination of subsistence, income generation and non-material and environmental benefits to the local community. Therefore a Forest Act is not the place to address goals of encouraging tree planting on private lands.” He mentioned Tree Preservation Acts in various states as the means for regulating private tree planting activity.
In Dr Lele’s reckoning, “Tree planting for timber/softwood production should not be taken up on public lands of any kind—as it is, large areas of traditional grazing lands were unfairly sacrificed to fast-growing plantations in the name of social forestry starting in the 1980s.”
Even when it comes to tree planting on private land, Dr Lele questioned the “excessive focus”. While he found concerns about reducing imports of timber acceptable, he also said that tree planting on private lands “inherently favours rich farmers, who can afford to set aside some land for long-duration crops such as trees while continuing to get income from their more fertile lands”. But when it comes to the marginal farmers, they “either cannot take advantage of tree planting subsidies (such as those announced by the Chhattisgarh government) or end up joining the urban labour force”.
Manoj Misra, the former IFS officer, questioned the logic of equating farm products with forest products, and the use of the farm laws as blueprints to promote private forestry. “In today’s world where the spectre of climate change has turned every old growth tree (most natural forests are such) in need of utmost protection, it is anachronistic to equate forests and its products with farms and its products. These are two related but very different ecosystems and should not be confused as being similar in terms of their commercial appeal, if any,” he said.
Environmental lawyer Dr Arpitha Kodiveri struck a slightly different note on the question of afforestation. “Policies and laws to facilitate tree plantation are welcome if they take on the elephant in the room, i.e. rapid deforestation, biodiversity loss and increasing extraction,” she said, in an evidently conditional endorsement of the idea. “If such a new chapter is required it should focus on how native plant and tree species should be planted and due process requirements of obtaining the consent from those dependent on the lands on which such planting of trees takes place.”
Both Dr Lele and Dr Kodiveri endorsed the idea of decriminalizing minor offences in the IFA especially since, according to the recent National Crime Records Bureau data, when it comes to environmental crimes, forest offences are the most in number and are often a source of harassment for citizens. In Misra’s view, “As a matter of fact Section 68 of the IFA dealing with power to compound an offence is wide enough to treat most forest offenses as ‘minor’.” So he found the idea of decriminalizing minor offences and de-clogging the justice system to be “totally ludicrous and out of place in the context of IFA”.
What’s worth considering here is that all three experts seemed to be in agreement that amending the Indian Forest Act will not help us resolve all pending questions relating to forests. Some may be addressed by amending the law, others may require a new law. They also did not find much use for the provisions of the two widely criticized farm laws in the context of forests and forest products. A draft law that keeps these laws as a foundation is, therefore, sure to court controversy.
Akshay is an investigative reporter. Based in Delhi, he will write about the environment, public policy and economy from the lens of the pulls and pressures of an ambitious democracy. Akshay uses the right to information extensively for reporting stories of vital public interest. Over the past decade and more, he has worked for HuffPost India, Frontline, The Economic Times, Down To Earth and DNA.