New Delhi: The Modi government persisted in finding ways to open up forests for commercial plantations, beginning shortly after taking office and ultimately achieving it through recent amendments to the Forest (Conservation) Act that damages the rights of tribal people, reveals a trail of official documents.
Documents studied by The Collective show the Union government’s dogged efforts in opening up forests began to take shape as early as 2015, gained prominence during the making of a (sidenote)Green Credit Scheme[The scheme incentivizes environment-friendly activities. It allows entities, who do such activities, to earn credits. These credits can then be sold for money to another entity that is under legal obligation to do those environment-friendly actions.](/sidenote) , and continued to evolve through subsequent iterations of the National Forest Policy drafts in 2016 and 2018 that focused on allowing private participation in plantations on forest land to increase the productivity of forests.
Despite having to shelve the forest policy drafts twice, after coming under fire from environmentalists for its pro-business language and objections from the tribal ministry for infringing on the rights of tribespeople and forest dwellers, the government kept tweaking regulations to deliver for businesses. Finally, the government achieved in opening up the forest land for private parties through the recent amendments to the Forest (Conservation) Act of 1980.
The 2023 amendments leave ample room for the government to allow private businesses to enter India's forestlands with ease and convert them into profit centers rather than biodiversity zones.
The efforts began in 2015.
India’s environmental laws aren’t primarily a code for crime and punishment but rather are meant to provide options for restitution. One such option prescribed by the forest conservation law is compensatory afforestation, which involves planting trees elsewhere to compensate for forest cut down. But it hasn’t been a success mainly because of the difficulty in finding land for afforestation, and neglect of saplings.
In 2015, the environment ministry began discussing ways to make it work. One way they thought it could work was by roping in private planters. They prepared a scheme that incentivises private entities to go for plantations on degraded forest land and non-forest land, and then allowing these private plantations to be adjusted against compensatory afforestation.
This meant that instead of planting trees on a new patch, an already existing private plantation would be considered as an afforested patch. The private entities that have raised this plantation would be incentivised through the Green Credit Scheme as well as by allowing them to use the plantations commercially. The scheme, which is yet to take off, planned to incentivise individuals to earn credits by undertaking tree planting and trading these credits on a market platform with private developers obligated to fund afforestation to compensate for cutting down forests.
In January 2015, the environment ministry constituted a committee under the Director General of Forests & Special Secretary (DGF&SS) to work on the Green Credit scheme. The goal was to involve industry in raising plantations on degraded forests as well as non-forest lands.
In September same year, the forest division of the ministry held consultations to issue “Guidelines on Private Sector Participation for Afforestation on Degraded Forest Land”.
It said degraded forests with forest cover not more than 10% would be made available to industries requiring timber and other forest produce for their use. This would start with pilot projects with private participation on forest lands. Of these lands given to private plantation companies, only 10-15% of the area would be earmarked for local communities and their collection of non-timber forest produce (NTFP), even if they had previously been legally collecting NTFP from a larger area.
The Union Ministry of Tribal Affairs came down heavily on the environment ministry. It said the guidelines for private participation “directly violate the statutory right of forest dwellers to protect, conserve and manage community forest resources” under the Forest Rights Act, 2006. The forest-dwelling communities have right of ownership, collection and disposal of minor forest produce, and the environment ministry’s guidelines restricted it.
The tribal affairs ministry said that before moving further, the rights of tribal communities should be settled and private participation should be allowed only after the gram sabha gives its consent to “involve private sector in managing their forests”.
As we wrote in the first part of this series, the environment ministry also drafted a forest policy in 2016, which it had to take down after coming under fire for favouring private players at the expense of tribal and forest-dependent communities.
The Union government subsequently assured Parliament that it would have a new forest policy. In 2018, another one was drafted and put in public domain. But it too carried the genes of its predecessor, focussing on allowing private partnerships in forestry activities like timber plantation while blurring out conservation and communities that depend on forests. It argued that the demand for timber was rising, leading to an increase in imports.
This is true. India’s imports of timber have been rising. But, according to a report of International Tropical Timber Organisation with data till 2019, India’s average annual wood productivity between 2009 and 2019 was around 46 million cubic metres. Of this, around 44 million cubic metres or 95% came from trees outside forests or timber plantations.
To cure what the government thought was a problem, the 2018 draft forest policy said there was a need to “stimulate growth in the forest-based industry sector” and “forest corporations and industry units need to step up growing of industrial plantations for meeting the demand of raw material”. It said the productivity of forests had to be increased to encourage the use of timber so that “dependency on other high carbon footprint wood substitutes is reduced”.
This draft too, which prioritised timber industry, threatened to undermine the rights of people under the Forest Rights Act (FRA).
“The 2018 forest policy draft was strongly opposed not only by civil society groups but also the tribal affairs ministry for ignoring tribal rights and favouring private interests in the name of increasing forest productivity,” said Tushar Dash, an independent researcher who works on forest governance and community forest rights.
Responding to the draft, the tribal ministry said that “the public private partnership models for afforestation and agroforestry detailed in the policy open up areas over which tribals and forest dwellers have legal rights under FRA”.
Even this draft national forest policy did not go anywhere. But the government brought into force the industry-friendly changes it struggled to enact since 2015 by tweaking rules and issuing executive orders that didn’t face Parliament scrutiny.
In July 2019, the environment ministry approved guidelines to allow commercial plantations on degraded forests through a tripartite agreement between the local forest department, an NGO of repute and the private entity.
In July last year, the rules under the Forest Conservation Act of 1980, too, were changed to allow the government to hand over forest land to private developers before taking the consent of tribal and forest-dwelling communities, which is mandatory under the Forest Rights Act of 2006.
Finally, the Forest (Conservation) Act was amended in 2023 to provide a robust legal framework for the entry of commercial planters.
The amended forest conservation law
Both the 2016 and 2018 national forest policy drafts tried to make it easier for private players to enter forests for timber cultivation and other commercial purposes. To roll out the red carpet for private players, the environment ministry ran a chainsaw through the laws to protect forests and the legal rights of forest-dependent people over their traditional forests.
The extant 1988 forest policy stated that forest-based industry should raise, on its own, “the raw material needed for meeting its own requirements” and support -- with inputs, like credit, technical advice and transportation services -- those who can grow the raw material for them.
This was laid out in the forest conservation law as well. The forest law required that if any forest land was leased out to a private individual or a company, they had to first get clearance from the Union government to use the forest. This approval came with strict conditions to minimise harm to the forest, pay compensation (called Net Present Value) for the trees that would be cut down, and also plant new trees in an equal area of land.
But the amended Forest (Conservation) Act now allows forest land to be leased to private players at the environment ministry’s discretion. Under the new law, the ministry can pass orders as per its wish to decide how forests will be leased to corporations.
Ministries pass “orders” to execute the law and the rules under it. But the amended forest law doesn’t provide any guidance on how these orders would set “terms and conditions” for leasing forests to private entities.
These orders wouldn’t need Parliament’s approval. While laws are approved by the Parliament before being implemented, rules under the law are placed before it to ensure they are in sync with the law. But executive orders, that the environment ministry now has allowed itself to pass, will not require parliamentary consent, either before or after they are executed.
“The amended law leaves no space for parliamentary oversight. The Central government can specify guidelines, directives, orders and executive instructions for how forest land will be leased to private entities, what activities will be forest-purposes that don’t require prior approval under Section 2 of the Forest Conservation Law and even issue directions to any government body or organisation or entity for the implementation of the Act,” said Shomona Khanna, a lawyer of the Supreme Court of India who works extensively on the rights of indigenous peoples and tribal and forest dwelling communities.
The amended Act will register timber and other plantations in forests, leased to private entities, as forestry activities, and potentially grant them sweeping exemptions under the conservation law.
“If a forest land is being used for a forest purpose, it can be given on lease to a private company simply by following a ‘direction’ from the Central government and we don’t know what those directions are going to be. There is no guidance in the amended Act for how this delegation of legislative power is to be exercised, which can result in all manner of arbitrariness,” Khanna said.
“This can be called excessive delegation of legislative power. The amended Act has included silviculture or plantations as forestry activities. The Centre can now pass an order that leasing forest land to private entities for forestry activities doesn’t require prior approval. It can exempt private entities from seeking Centre’s approval in certain cases which it will decide in the future,” said Ritwick Dutta, environmental lawyer and co-founder of Legal Initiative for Forests and Environment.
And the cherry on top: For the private sector, the plantations they raise will be eligible to earn Green Credits that can be traded for profit.
We sought comments from the Ministry of Environment, Forests and Climate Change on these amendments and how they give vast discretionary powers to the executive. We are yet to hear from them.
Other changes brought into force through the amended forest law were also part of 2018 draft forest policy that was binned.
In the section on wildlife management -- another activity that did not require Centre’s approval to use forests -- the 2018 draft inserted “ecotourism models” and zoological gardens. With the new alterations, zoos, safaris and ecotourism facilities have also been left out of the purview of the forest conservation law.
(The government changed the legal definition of forests, which leaves out private plantations and vast swathes from the scope of the conservation law. In the next part, we show how the definition of forests has changed and the government’s controversial role in deciding India’s forest cover. Click here to read the concluding part, and here to read the first part.)