LEGAL REGULATION OF

FORESTS IN INDIA

Dr. Balraj K SIDHU

Indian Institute of Technology Kharagpur
Prioritizing Forests
Forests are more than trees, and form part of an ecosystem that
underpins life, economies and societies.
Multiple functions of forests
Global Forest Resources Assessment 2020 (FAO) – done every
five year - The world has lost a net area of 178 million ha of forest since
1990, which is an area about the size of Libya.
Sustainable Development Goals – SDG 15
India’s State of Forest Report 2021
Forest- Colonial Footprint-I
Colonial interests in Forests: In the initial years of the British rule
more and more forest land was encouraged to be brought under
agriculture with the sole objective to increase the revenue of the
exchequer.
It was the growing deficiency of oak in England that compelled the
King's Navy to meet its need by substituting teak for oak.
Government assertion that the royalty right on teak trees enjoyed by the
Indian princely states earlier would henceforth be vested in the
Company.
The material interests of the state, especially the wood requirements for
ship-building, railways, government departments and industries, were
the main driving force for the forest policies of the colonial state.
Forest- Colonial Footprint-II
1865 – IFA –empowered the government to declare forests as government
land (reserved forests).
1878 – IFA – classification of forests - reserved, protected and village
forests.
1927 – IFA – retains the classification : reserved forest [chapter II – secs.
3 – 27] - most commercially valuable and amenable to sustained exploitation.
Protected Forest [chapter IV – secs 29-34] - State-controlled, but some
concessions were granted subject to the reservation of commercial tree
species when they became valuable
Village Forest [chapter III – section 28] - those forests that yielded inferior
timber, fuel wood, or fodder, apparently to meet the needs of the people
residing in villages.
This step could have been meant to keep the villagers away from
commercially valuable reserved and protected forests
Indian Forest Act 1927 – procedure to declare RF
Power to RF
(Sec.3)

Notification – Intent Appointment of FSO

(Sec.4) (Sec.4)

Power to Power to
Proclamation Inquiry
Acquire Land Admit Claims
Sec.6 Sec.7
Sec.11 Sec.14 &15

Final Consequences
Appeal of RF
Notification
Sec.17 Sec.26
Sec.20
Forest Governance- Post-Independence - I
The process of expanding state control over forest continued even after
Independence.
National Forest Policy 1952 - The need for a new forest policy was
felt not only due to the changing political and economic aspirations of
the country but also to better incorporate the role of forests in national
development.
National interest which came to be identified with defence,
communications and key industries were given priority over local needs.
Natural resource base as a means to jump-start economic development
– forest remained "timber mine" instead of managing the
forest biodiversity.
Set the goal for first time that at least one-third landmass of the country
must be under forests.
Forest- Post-Independence - II
Forests shifted to Concurrent List from State List vide 42nd Amendment
Act 1976 (diminution of state power).
The chasm between the State and the people was further opened up when
the State started using force to repress dissent from the forest-based tribal
communities, such as the Gua killings (8 September 1980) where the
police fired on demonstrators.
Communities became more fiercely assertive in the defence of their jal,
jangal and jamin (water, jungle and land).
Forest (Conservation) Act 1980: to check the indiscriminate diversion
of forest land for non-forestry purposes.
1988 Amendment: the state governments were prohibited from
assigning, by way of lease or otherwise, any forest land or any portion
thereof to any private person or authority (that was not owned, managed or
controlled by government) without prior sanction of the central government.
Amendment to FCA 1980
Forest- Post-Independence - III
National Forest Policy 1988: prime emphasis on conservation of
forests and meeting the local needs of the people as well as their
participation in the protection and management of forests.
Protection of rural subsistence needs as part of traditional rights and
concessions in respect of NTFPs, grass and fodder.
Forest-based industries forced to look for alternative sources of raw
material.
Joint Forest Management (JFM): impetus to bring local forest-
dwelling and forest-fringe communities on board by giving them
responsibility for protecting and managing forests as well as sharing the
costs and benefits.
YouTube Video: https://
www.youtube.com/watch?v=YCTNNum1fzs&ab_channel=RSahu
(Original)Forest Case: Key Points
T N Godavarman v. UoI (1996):
Meaning for ‘Forest’: dictionary meaning of forest and the
FCA applied to all forests regardless of their legal status or ownership.
 It also redefined what constituted "non-forest purposes" to include not
just mining but also operation of sawmill.
Court ordered all such non- forestry activities anywhere in the country
that had not received explicit approval from the central government to
cease immediately.
It also suspended tree felling everywhere, except in accordance with
working plans approved by the central government.
It completely banned, with minor exceptions, tree felling in three whole
states and parts of four other states in the forest-rich north-east.
FRA 2006: A Step Towards Atonement?
Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 [ Forest Rights Act (FRA),
2006]
Redress the historical injustice done to the forest dwelling people whose
rights had not been legally recognized and recorded and who were denied their
traditional rights to forest lands and resources in legislations prior to FRA
(Preamble).
FRA is a means to address some of the pressing issues affecting livelihood and
conservation. By securing tenurial and access rights and providing an
empowered authority for conservation it aims to:
 Ensure livelihood and food security of the forest dependent communities.
Provide for basic developmental facilities for the forest villages.
Provide legal recognition to the community conservation initiatives thereby
strengthening traditional conservation practices that protect some of the
critical ecosystems of the country.
FRA 2006: Key Concepts and Definitions
Forest dwelling Scheduled Tribes means the members or
community of the Scheduled Tribes who primarily reside in and who
depend on the forests or forest lands for bona fide livelihood needs and
includes the Scheduled Tribes pastoralist communities (Sec 2(c))
Other traditional forest dweller (OTFD) means any member or
community who has for at least last three generations prior to the 13th
day of December, 2005, primarily resided in and who depend on the
forest or forests land for bona fide livelihood needs. One Generation
means 25 years (Sec.2(o))
Bonafide livelihood needs means fulfilment of livelihood needs of
self and family through exercise of any of the rights specified in
sub-section (1) of section 3 of the Act and includes sale of surplus
produce arising out of exercise of such rights (2012 Amendment).
FRA 2006: What are the Forest Rights-I
FRA – gives individual right as well as community right – Section 3 (1)
(a) right to hold and live in the forest land under the individual or common
occupation for habitation or for self-cultivation for livelihood by a member or
members of a forest dwelling Scheduled Tribe or other traditional forest
dwellers;
(b) community rights such as nistar, by whatever name called, including those
used in erstwhile Princely States, Zamindari or such intermediary regimes;
(c) right of ownership, access to collect, use, and dispose of minor forest produce
which has been traditionally collected within or outside village boundaries;
(d) other community rights of uses or entitlements such as fish and other
products of water bodies, grazing and traditional seasonal resource access of
nomadic or pastoralist communities;
FRA 2006: What are the Forest Rights-II
(e) rights, including community tenures of habitat and habitation for primitive tribal
groups and pre- agricultural communities;
(f) rights in or over disputed lands under any nomenclature in any State where claims
are disputed;
(g) rights for conversion of Pattas or leases or grants issued by any local authority or
any State Government on forest lands to titles;
(h) rights of settlement and conversion of all forest villages, old habitation unsurveyed
villages and other villages in forest, whether recorded, notified, or not, into revenue
villages;
(i) right to protect, regenerate, or conserve or manage any community forest resource,
which they have been traditionally protecting and conserving for sustainable use;
(j) rights which are recognised under any State law or laws of any Autonomous District
Council or Autonomous Regional Council or which are accepted as rights of tribals
under any traditional or customary law of concerned tribes of any State;
FRA 2006: What are the Forest Rights-III
(k) right of access to biodiversity and community right to intellectual property
and traditional knowledge related to biodiversity and cultural diversity;
(l) any other traditional right customarily enjoyed by the forest dwelling
Scheduled Tribes or other traditional forest dwellers, as the case may be, which
are not mentioned in clauses (a) to (k) but excluding the traditional right of
hunting or trapping or extracting a part of the body of any species of wild
animal;
(m) right to in-situ rehabilitation including alternative land in cases where the
Scheduled Tribes and other traditional forest dwellers have been illegally evicted
or displaced from forest land of any description without receiving their legal
entitlement or rehabilitation prior to the 13th of December 2005.
FRA 2006: Developmental Rights
Overrides FCA 1980 (diversion of forest land to non-forest use).
The Act has provisions (Section 3 (2)) for securing rights of forest
dwelling communities over developmental facilities such as Health
and educational facilities, fair price shops, electric and
telecommunication lines, tanks and other minor water bodies, drinking
water supply and water pipelines, water or rain water harvesting
structures, minor irrigation canals, non-conventional source of energy,
skill up gradation or vocational training centers, and roads.
In this case the pre-condition is that the development projects are to be
provided by the Central Government only after the Gram Sabha
recommends for the same.
FRA 2006: Institutional Mechanisms
Gram Sabhas (Sec.6): authority to initiate the process for determining
the nature and extent of individual or community forest rights or both that may
be given to the forest dwelling Scheduled Tribes and other traditional forest
dwellers within the local limits of its jurisdiction under this Act by receiving
claims, consolidating and verifying them and preparing a map delineating the
area of each recommended claim.
Forest Rights Committee (FRC): The Gram Sabhas shall be convened
by the Gram Panchayat and in its first meeting it shall elect from amongst its
members, a committee of not less than ten but not exceeding fifteen persons
as members of the Forest Rights Committee, wherein at least two-third
members shall be the Scheduled Tribes: Provided that not less than one-third
of such members shall be women.
FRA 2006: Processing of Claims – Section 6

Gram Sabha
Sub-Divisional Level Committee
District Level Committee
State Level Monitoring Commitee
FRA 2006 through the Supreme Court-I
OMC v. UoI (2013) :“We are, therefore, of the view that the question whether STs
[Scheduled Tribes] and other TFDs [traditional forest dwellers], like Dongria Kondh,
Kutia Kandha and others, have got any religious rights i.e. rights of worship over the
Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as
Niyam-Raja, have to be considered by the Gram Sabha,”... “Gram Sabha can also
examine whether the proposed mining area Niyama Danger, 10 km away from the
peak, would in any way affect the abode of Niyam-Raja. Needless to say, if the BMP
[bauxite mining project], in any way, affects their religious
rights...that right has to be preserved and protected.
We find that this aspect of the matter has not been placed
before the Gram Sabha for their active consideration.”
In 2016, SC refused to review the 2013 decision, rejected
Odisha government-owned miner, Odisha Mining Corp.
(OMC)’s petition for conducting gram sabhas for the second
time for mining in the Niyamgiri hills, putting an end over the
speculation that mining may be resumed in the sacred hills of
the primitive tribe, the Dongria Kondhs.
FRA 2006 through the Supreme Court-II

Supreme Court stays its Feb 13 order directing eviction of 11.8 lakh forest dwellers
Examine whether due process was followed by the gram sabhas and the States under the
Forest Rights Act before the claims were rejected.
Compensatory Afforestation
Prior to CAMPA 2016: genesis can be trace to FCA 1980 (sec.2) – prior approval of
government – Rules under the Act made CA a mandatory condition for the issue of such
clearances. The condition laid down was that the user agency would have to ‘compensate’ for the
loss of forest by either raising or maintaining a plantation over an equivalent area or depositing
money with the forest department to do so.
T.N. Godavarman Thirumulpad various orders led to existing conceptualization.
In 2002, the Supreme Court ruled that the deposited money should be constituted as a separate
‘fund’ and in 2006 introduced the concept of forest valuation in terms of money. It stipulated
that the user agency would have to pay the net present value (NPV) of the loss of biodiversity
content and environmental services in forests from this diversion to the concerned forest
department.
The concept of NPV and the mechanism of its computation took shape from 2006 onwards from
the orders of the Supreme Court. This would take into account biological and spatial variations in
bio-geographical zones, and numerical value would be calculated according to site/region-specific
‘scientific, biometric and social parameters’.
 The SC appointed an expert committee for such a valuation -the Kanchan Chopra Committee
quantified NPV as 438,000–1,043,000 per ha and also recommended that the largest portion of
this fund should be given to Panchayats, and the remaining portion shared between the centre and
states
CAMPA 2016
The CAFA, 2016, was prima facie enacted to utilise monies deposited with the forest
department for carrying out CA in lieu of forest diverted.
Preamble: On what activities Fund money can be utilized – para one
Created new institutions – NCAFMPA (Sec. 8) and SCAFMPA (sec.10) (replacing
ad-hoc Authority)
Definitions: Section 2
Compensatory Afforestation (d)
Penal Compensatory Afforestation (k)
NPV (j)
User Agency (p)
Creation of National Fund (sec. 3)
Scheme for allocation of Fund amount (sec.5)