The rules came after the Forest Advisory Committee (FAC), the top body that recommends or rejects projects seeking forest clearance, felt that the Union environment ministry’s penalties for violations under the FC Act 1980 were somewhat “inconsistent and arbitrary". The rules were issued at the latest meeting of FAC on 26 October whose minutes were reviewed by Mint.
Experts, however, feel that the rules are short sighted and not comprehensive enough. It also said the penalty is inadequate.
Under FCA, forest land can be diverted for non-forestry purposes like dams, mining and others but requires prior approval under Section 2 of the FC Act. After FAC recommends or rejects clearance to a project, the ministry takes the final decision. But it is rare that the ministry overturns an FAC recommendation.
Sometimes, project work like mining or construction is started without obtaining forest clearance. Proponents of such projects are then examined by the ministry to decide on the amount of penalty.
For projects where no proposal has been submitted seeking forest clearance and forest land has been diverted, the FAC recommended that in cases where permission for use of forest land for non-forestry purposes has been given by a state government without central government’s approval, then action will be taken against them under FC Act 1980.
In cases where the proposal is under consideration but forest land is diverted before FC, the expert panel recommended that the “penalty for violation shall be equal o NPV of forest land per hectare for each year of violation from the date of actual diversion as reported by the inspecting officer with maximum up to five times the NPV plus 12% simple interest till the deposits are made".
NPV (Net Present Value) of forests is the amount that a project proponent has to pay for forest land that is being diverted for non-forestry purposes. It depends on the type and quality of forests.
The panel also held that state governments will take disciplinary action against officials for not preventing the violation.
It, however, stated that in cases of public utility projects of the government, the penalty shall be 20% of the penalty proposed.
In cases where project proponents do not follow or violate conditions imposed while forest clearance is granted, the FAC said the penalty will be imposed on recommendation of the regional office in whose jurisdiction violation has occurred.
“In case the offence is proved, then the penalty shall be imposed for violation committed over forest area without approval equal to twice the normal NPV. In case of public utility projects of the government, the penalty shall be 20% of the penalty," it added.
In cases where ‘forest land’ has been changed to ‘non-forest land’ in government records, the FAC held that, “if the violation is not attributable to the user agency, no penalty shall be imposed.
Experts called the new guidelines inadequate.
“The current attempt on quantum of penalty for violation of FC Act is quite short sighted and non-comprehensive. The broad categorization and scenarios are incomplete. For example, it does not cover the forest land violations in protected areas or other ecologically sensitive areas including mangroves where it is more severe and it neither recognizes the quality and health of forests integral to that area," said Sanjay Upadhyay, an environmental advocate in the Supreme Court of India.
He also stressed that the “classification of offences should be more nuanced given the technology available".
“The penalty too seems to be inadequate and for some strange reason, the public utility projects of the government attracts a meagre 20% of the penalty proposed which completely defeats the principle of equity. In fact, the government is expected to be more aware and conscious of its own laws," Upadhyay added.
Upadhyay, who is already working with the central government to revamp the Indian Forest Act 1927, emphasized that under the norms recommended by the panel, “the freedom to be prosecuted under local state laws may give rise to a much diluted prosecution and in fact against the spirit and the rationale for enacting the FCA itself."
“Other cases of change of government records is rather simplistic where if the violation is not attributable to the user agency, everyone goes scot-free. It also violates the forest definition given by the Hon’ble Supreme Court where the emphasis seems to be the forest land and not forests," he added.