New Delhi: What constitutes a forest in India is all set to change if the new definition proposed by the ministry of environment and forests goes through. The definition of a forest is critical because of the Forest Rights Act enacted last December, which aims to give land and rights of forest resources to tribals residing in these forests. This comes right after the ministry also notified core areas of tiger and wildlife sanctuaries as off-limits for any habitation.
According to the proposed definition, which has at present been sent to all the states for comment, “any area notified as forest in any Act or recorded as forests in any government record” will be forest. Further explanation of the definition says that any area having trees, scrub, grassland, wetland, water body, desert, geomorphic or any other features and any area variously recorded as jungle or forest, such as chhote bade jhad ka jangal, jhudupi jungal (shrubland), unclassified state forests and so on, on community-owned lands will also come under Central control as they will be classified as a forest.
However, the definition excludes man-made plantations, orchards and agro-forestry tree crops on private and community-owned land from its purview.
The ministry, before finalizing the definition, had initiated a consultative process with the not-for-profit Ashoka Trust for Research in Ecology and the Environment, which had proposed three options. However, none of them were taken into consideration.
“The definition is too simplistic and completely unacceptable. It will open up numerous arenas for dispute and conflict,” said Sanjay Upadhyay, a Supreme Court advocate specializing in forestry rights and environment.
At present, there is no definition of forest under any legislative tool in India. The only definition that exists is from 1996, when the Supreme Court ordered that any land which fulfils the “dictionary meaning” of forest will be recognized as forest, irrespective of the ownership of the land or the status of the land. The Supreme Court definition includes man-made plantations in the ambit of the definition.
“The disturbing part of the definition is the part about community-owned lands. This is particularly pertinent in the case of the North-Eastern states, where most of the forested land is under community control, such as village durbar lands, autonomous district council forests,” added Upadhyay. For instance, 98.4% of the land in Nagaland is under community ownership, where stringent laws of the Indian Forest Act and the Forest Conservation Act do not apply. Similarly, Mizoram has more than 50% of total land under community control, and Arunachal Pradesh has 55%. If the proposed definition is enacted, then the percentage of land classified as forest in Meghalaya will jump from 2% to more than 50%.
“The land in the North-Eastern states falls under Schedule VI of the Constitution. The rights to these lands and resources are with the community and it will be against Constitutional provisions if the Centre declares these as forest,” explained Upadhyay.
Similarly, community-owned land in states with a high tribal population, such as Madhya Pradesh and Chhattisgarh, fall under Schedule V of the Constitution. “It is extremely contentious that the definition includes chhote bade jhad ka jangal and jhudupi jungal. There are numerous cases right now in the Supreme Court concerning ownership disputes on these same lands on which several tribal families depend for their livelihoods,” said Upadhyay.
Last month, the apex court had sent notices to the Madhya Pradesh and Chhattisgarh governments concerning the status of 3 million acres, on which 1.5 million tribals depend.
Himachal Pradesh, however, is a different case. Some 67% of the land in the state is already under the control of the forest department. “Right now, the biggest chunk is under the forest department in this state. Therefore, the definition will not make any difference. Moreover, the department cannot control and does not want any more land to be classified as forest. It creates more problems,” says a senior official in the state’s forest department, who asked not to be named.
The change in the definition is not merely a change in meaning. A change in definition will mean that the Centre will control all such land, which was previously held by the state government. Also, when any land is classified as forest, the Indian Forest Act and the Forest Conservation Act will apply, which in turn means that for all non-forestry activities, such as mining, dams, roads or any other industry, permission will have to be obtained from the Centre. Moreover, the cost of diversion of forest land will have to be paid. Any user of forest land for non-forestry purposes has to pay the “net present value” of the land diverted.
But it is not the potential conflict between the Central and state governments that has Upadhyay worried.
“The most controversial part, however, is the contradiction with the Forest Rights Act, which aims to relinquish the rights of the same community-owned lands to communities and forest dwellers. This is directly in contravention of this Act,” he said.