In April 1995, T.N. Godavarman, the Malayali scion of an erstwhile princely lineage, filed a public interest litigation in the Supreme Court seeking action against the indiscriminate felling of trees in the Nilgiris forestland that was once his family’s fiefdom. The court expanded the case’s scope and brought the entire forest governance regime in the country under its glare.

In 1996, the apex court gave an order that was at once landmark, ambitious, controversial and influential -- it re-emphasised what lands would be protected as forests under the forest conservation law. Under it, whether the government recognised a forest patch as one or not on its records, if it was a forest, it would be protected regardless of who owned the forest patch. This became necessary because government records of forests have always been fuzzy, contradictory and incomplete.

The court asked that state-level expert committees identify and demarcate forest patches that had so far remained outside government records so that they were brought under the ambit of the law and protected. Twenty-seven years on, many states continued to drag their feet, and the Union government never put out consolidated information on these forests.

The Reporters’ Collective has accessed unpublished internal documents of the Union environment ministry, which, though dated, show that even by 2014 -- eighteen years after the apex court order -- most states, including Haryana, Bihar, Gujarat and Maharashtra, hadn’t even begun to properly identify and protect such forests.

The Modi government’s recent amendment to the Forest Conservation Act, limiting the law’s protection to officially designated forest areas, has now exposed large swathes of potentially qualifying forestland in these states to commercial interests.

In the case of Haryana, large parts of Aravalli range forests bordering Delhi, which are yet to be notified as a forest, lose their legal protection under the amended Forest Conservation Act, leaving the land vulnerable to being snapped up by real estate developers.

For private players, this is not the only piece of good news coming their way. The changes in the forest law exempt private plantations from conservation laws. Earlier, private plantations fitting the dictionary definition of a forest would invite the provisions of the Forest Conservation Law. Now they won’t. (To know more read the previous part of this series).

 Lost in the woods

In a meeting held by the Union environment ministry in 2014, 18 years after the Supreme Court order, over 25 states and Union Territories (UT) updated the ministry on the work done to identify forests.

 While 12 had decided what constituted a forest, be it privately- or publicly-owned, 15 states and 5 UTs, including Bihar, Haryana and Gujarat, had not. 

This is the last consolidated data on how the states acted on the Supreme Court’s directives. We accessed the documents, and they show state governments used wide-ranging discretionary definitions to identify such ‘deemed forests’. 

 For example: Himachal Pradesh decided that “compact blocks of wooded land above 5 hectares” would be a forest. Another hill state, Sikkim said that a “contiguous patch of minimum 10 hectares area having more than 40% crown density” would be considered a forest. 

Uttar Pradesh instead decided, “minimum 3 hectare area with minimum 100 trees per hectare in Vindhya & Bundelkhand region and minimum 2 hectares area with minimum 50 trees per hectare in Terai and Plain areas” would be treated as forest. Except plantations on government or private lands.

The government never revealed this data to Parliament or made it public.

From September to November 2019, the Centre mulled identifying forests based on dictionary meaning and observed that “there can’t be any uniform criteria to define forest which can be applicable to all forest types in all State/UTs”. It then decided that states should frame criteria themselves and wouldn’t require the approval of the Union ministry.

Now with the amendment to the Forest (Conservation) Act, it has done away with the category of deemed forests. Before the Joint Parliamentary Committee on the new law, it said, “All areas which are identified as ‘forest’ by the expert committee constituted in pursuance of the 12.12.1996 order of the Supreme Court and affidavit has been filed in the Supreme Court in 1997 accordingly”.

But none is wiser about it because the government has not disclosed the specific areas identified as deemed forests on record and which have not been.

Environment minister Bhupender Yadav justified this exclusion in an opinion piece he wrote in a leading daily on August 7, 2023. “Fear had also crept in that FCA could be applied to private plantations. Afforestation outside forests failed to get the desired impetus. This was becoming a hindrance to enhancing the green cover,” Yadav wrote. 

He was suggesting that private players were shirking from raising timber and other plantations for the “fear” that they would come under the conservation law that necessitated rigorous procedures of approval before the land was put to any other use that the owner wished.

With the amended law, that “fear” has been overcome. And the vision of the 2018 draft forest policy (you can read about this in the second part of the series here) to realise the full potential of agroforestry, especially timber plantations, with corporate help, has been brought to fruition.

Losing Delhi’s lungs

Though the professed intention of the government is to increase India’s forest cover and realise its climate goals through the amendment, the unofficial green lungs of the country, such as parts of the Aravalli range bordering India’s capital, have become sitting ducks.

Only about two-thirds of the Aravalli hills in Haryana are protected under the Punjab Land Preservation Act, 1900. According to experts,  an estimated 40% of the hills in Gurgaon and 36.8% in Faridabad are not notified as forests. These pieces of land, totalling around 18,000 acres, with scrub, open and dense forest cover, could have potentially been ‘deemed forests’ or forests “as per dictionary meaning” before the law was amended.

The Haryana government has always been keen to avoid tagging the hills as forests. Documents dating from 2015 show the many bureaucratic manoeuvres the government made to avoid implementing the 1996 Godavarman judgement and subsequent orders.  They show large swathes of Aravali forests had been put in a grey zone as ‘status to be decided’.

It is decided now: they are not forests anymore. The Modi government’s amendment to Forest Conservation laws clears the path for real estate business.

“Making the FCA non-applicable to a range of forest lands, including private forests, and deemed forests as per dictionary meaning will lead to ecological disaster. It will lead to a large-scale diversion of these forest lands for non-forest use, particularly real estate in environmentally sensitive areas like the Aravallis,” said Chetan Agarwal, an independent environment and forest policy analyst. 

Many tribal and forest-dwelling communities across the country are against changing the definition of forests.

Campaign for Survival and Dignity, a pan-India group of 18 adivasi and forest dwellers’ organisations, strongly opposed the proposed changes to the Forest Conservation Act during the public consultation process. It said in its comments that the Ministry should drop the proposed changes and “must begin by exhibiting compliance with laws, particularly the Scheduled Tribes and other Forest Dwellers (Recognition of Forest Rights) Act, 2006 and concede the authority of Gram Sabha in the decision-making on forest protection, conservation and forest diversion”.

Van Gujjar Tribal Yuva Sangathan, a union of nomadic pastoral tribe youths who work on claiming tenure over pastures through the Forest Rights Act, wrote, “Such a restrictive definition that seeks to reverse the logic of Godavarman case can lead to severe underestimation about the extent of forest areas… Furthermore, such a provision directly stands in contradiction with the purpose of the FRA, which applies to all types of forest land including unclassified forests, undemarcated forests, and existing or deemed forests”.

Forests and Figures Keep Changing

It's not just the lack of data on deemed forests and the government's frigid attitude towards them. Even the overall forest cover data that the government puts out periodically causes scepticism. In the past, this data has been highlighted for its inconsistencies.(You can read about these inconsistencies here, here and here.)

An analysis of State of Forest reports throws up contradictory conclusions. According to these reports, India, on average, has added over 2,146 sq km of forests annually between 1987 and 2021.

But parsing through the two decades of these reports show, on an average, every two years, 2,594 square kilometres of very dense and moderately dense forest has turned into scrub or barren lands. That is more than the area of Bangalore and Delhi combined being chopped down every two years.

Strangely, on average, 1,907 sq km of scrub or non-forest land have turned into very dense or moderately dense forest. How does a near-barren piece of land turn into a dense or extremely dense patch of forest in merely two years? 

Even the figures the government submitted at international platforms don’t match with the forest cover figures presented in the State of Forest reports.

In a report submitted to the United Nations in 2018, the Centre magically increased the forest cover for 2000 by over 22,000 sq km. This is more than the area of Mizoram. The data submitted to the UN had increased forest cover figures for 2000, 2004 and 2009. These were different from the numbers it has disclosed to its citizens.

In absence of reliable forest cover data in general, and data on deemed forests in particular, the Centre has moved ahead with industry-friendly changes to the forest law. While the larger section of India’s citizens stand in the dark.

(This is the last of the three-part series. Read the first and the second part to know how the recent amendments to the forest conservation law were in the works for years and how they favour private players over forests and tribal communities.)

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