Legalizing Compensation

This piece originally appeared on mylaw.net on January 19, 2012.

Previously, I had written about the mechanism under India’s Forest (Conservation) Act, 1980 (“the FCA”) through which forest land can be diverted for non-forest use. Permissions under the FCA are also required to fell trees on forest land or if a forest, which is otherwise in the “reserved” category, is to be de-reserved. The law defines “non-forest purpose” broadly as the breaking up or clearing of any forest land for the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops, or medicinal plants, and for any purpose other than reforestation. Therefore, despite stating upfront that the law is meant to be for the conservation of forests, it has in-built mechanisms to facilitate the change of land use of an area conceived or recorded as a forest.

Each time such permissions are granted by the Ministry of Environment and Forests (“the MoEF”) however, it goes along with the requirement that the loss of forests or trees has to be compensated. The requirement for compensatory afforestation (“CA”) is considered one of the most important conditions stipulated when forest clearances are granted under the FCA. All proposals for diversion are made along with a comprehensive scheme for CA. The Forest (Conservation) Rules, 2003requires forms to be filled by the Forest Department, the agency that proposes the diversion on behalf of the user agency. The MoEF has also issued specific guidelines related to how CA is to be carried out and monitored.

The form to be filled while seeking prior approval for forest diversion requires the Deputy Conservator of Forests of the area to state the details of the envisaged CA scheme. The non-forest area or degraded forest area identified for afforestation needs to be indicated on maps along with the total financial outlay. The form also requires detailing of the distance of the CA area from adjoining forests and the patches to be afforested. Information regarding the species to be planted, the implementing agency, the time schedule, and the cost structure need to be provided. This information is placed alongside the historical record (since 1980) of the experience of CA and penal afforestation that was undertaken in the division or district where the non-forest use is located.

As stipulated by the MoEF, CA has to be conducted over an equivalent area of non-forest land, so as to try and bring more areas under “forest”. For example, for every hundred hectares ‘lost’ to non-forest purposes, another hundred hectares of non-forest land have to be afforested. In case non-forest land is not available, afforestation needs to be taken up on double the extent of degraded forest land. The non-availability of non-forest land however, needs to be certified by the Chief Secretary of the state or the government of the Union Territory.

The FCA guidelines laid out by the MoEF also allow for other categories of forests, which are recognised by the Indian Forest Act, 1927 and to which the FCA can be applied, which can also used for CA. These lands may be revenue lands or categories of land such as “zudpi jungle”,“chhote” or “bade jhar ka jungle”, “jungle-jhari land”, and “civil–soyam lands”. These categories have their own unique ownership and management practices. However, no matter what kind of land, it needs to be identified contiguous to or in the proximity of an existing Reserved Forest or Protected Forest, primarily to enable Forest Department officials to effectively manage the “newly planted area”. Looking for a distant site for afforestation outside the district or state should be done only if land in that particular state is not available. A forest official in Kinnaur district of Himachal Pradesh revealed during a conversation in June 2011 that the district did not have any additional land available to carry out CA. Any future diversion would mean seeking land for compensation in a neighbouring district.

Until the interventions of the Supreme Court of India on the subject of CA as part of the orders inT.N. Godavarman Thirumulpad v. Union of India, (W.P. 202 of 1995), the money for this exercise was to be deposited with the state government. This has, however, changed since the time the Supreme Court issued orders as part of the ongoing Godavarman case for setting up of a Compensatory Afforestation Planning and Management Authority (“the CAMPA”). The CAMPA, which is to be set up at the central level, is where all funds for CA will be deposited and routed back to state governments, based on annual proposals for utilisation. This was introduced at the peak of the debates in the apex court around the poor status of CA. An ad hoc CAMPA, which manages the money related to CA and other payments related to the use of forest land for non-forest use, is in place today. (See, Kohli, K., Menon M., Samdariya V., and Guptabhaya S., Pocketful of Forests: Legal debates on valuating and compensating forest loss, Kalpavriksh and WWF-India, New Delhi: 2011).

There is however, a long road between the legal requirement of CA and its actual implementation on the ground. The lack of implementation of this requirement is also visible in reports of the Comptroller and Auditor General (“the CAG”). As per a 2007 CAG report based on comprehensive scrutiny of the records of forest land diverted between 1997-98 and 2006-07 in seventeen forest territorial divisions in Madhya Pradesh, a total 8,915.214 hectares were diverted for ninety-six projects. 7,060.979 hectares of land was stipulated for CA and Rs.38.37 crore was made available by user agencies. Only Rs.2.31 crores, that is, six per cent of the total funds made available, was used for CA. The CAG reported that sixty-seven projects and 5,340.197 hectares were not at all covered under CA in this time period. The Divisional Forest Officer pointed out that the reasons for this shortfall included the lack of allotment of funds for sixty-four projects. Another reason was the non-transfer of non-forest land in one case and in two cases, CA had not been carried out despite the availability of funds with the divisions.

Recent figures from many states match the facts of this report. Even as forest land continues to be officially provided for non-forest use, and tree felling permissions are not terribly difficult to procure, the requirement of compensating for the loss remains unimplemented and its non-compliance unchecked. In fact, there are also instances where the areas identified for CA for one project is the same that another industrial project would like to set base. With land being in continuous demand to feed the requirements of India’s current pace of industrial expansion, the MoEF’s clearance figures are set to match the demand of industrial and infrastructure projects across the country. Whether we like it or not, the practice of CA remains just one more non-complied condition in a forest clearance letter! More on this soon.

Kanchi Kohli works and writes on environment, forest, and biodiversity governance issues. In her writing, she seeks to explore the interface between industrialisation and its impacts on both local communities and ecosystems.