In February 2022, veteran environmentalist Ravi Chopra, chairman of the High Powered Committee appointed by the Supreme Court, resigned from his position after flagging violations in the Union government's Char Dham Highway project in the fragile section of the Himalayas in Garhwal, Uttarakhand.
The panel was set up after activists dissatisfied with the National Green Tribunal (NGT) order moved the apex court. Though the NGT had observed that highway authorities had bypassed the rules by splitting the project into several standalone works of less than 100-km length, experts pointed out that its orders were not strong enough.
The panel's final report had said that the project, which diverted 1,703 acres of forest land, was implemented "as if there is no rule of law". Trees and hills in the Himalayas were cut without conducting an Environment Impact Assessment (EIA) as per the 2006 notification.
In Karnataka, the NGT's observation has been echoed by the regional empowered committee of the Ministry of Environment, Forest and Climate Change (MoEF&CC) which pulled up the highway and electricity transmission authorities for splitting projects into smaller works to bypass the rules. This also exploited the loophole that applies the EIA rules to big projects while ignoring the ecology and environment of the project sites.
While activists had urged the government to plug existing loopholes, none in the “informed world” of bureaucracy believed in such miracles. “One look at the series of amendments to the EIA notification will tell the whole story,” a senior official said, pointing to the relaxations provided to big companies that allow them to get away with violations.
In March 2023, the Karnataka State Environment Impact Assessment Authority (SEIAA) imposed a penalty of Rs 1.63 crore on Wistron for building and operating a factory without prior clearances under the EIA notification. The company got away with a minor penalty, thanks to a relaxation extended by the Union environment ministry office memorandum issued in July 2021.
Conducting an EIA is a measure to ensure sustainable and equity-based utilisation of resources. Allowing industries and corporates to legalise violations by paying 1% of the project cost was only one of more than 50 changes to the 2006 Environment Impact Assessment notification introduced by the Ministry to ensure “ease of doing business”. Many of the changes have been introduced either through office memorandums (OM) or letters, bypassing the legal procedure.
The Forest (Conservation) Amendment Bill, 2023, tabled in the Parliament earlier this week amid vociferous opposition to its contents and the procedural lapses, is among the Centre’s recent interventions that will ease business activities while having major implications for India's natural resources.
The Bill seeks to amend the Forest (Conservation) Act, 1980, by removing protections for 2.98 crore acres of ‘unclassified forests' in the country. It will also grant blanket exemptions for projects of “national importance” in a 100-km radius along the international border, as well as exemptions from clearances for prospecting, investigation or exploration.
Officials view the existing Forest (Conservation) Act as a stringent law. Even then, India has lost 2.19 lakh acres of forest land to non-forest activities in the last five years. As per the data shared by the government in the Rajya Sabha, 46572.07 acres (21%) of forest area was diverted for mining.
More than 400 ecologists and 100 retired bureaucrats wrote to the Members of Parliament expressing their bewilderment at many of the provisions, including the Centre’s misplaced confidence in plantation forests to create carbon stocks. “There are ample studies to suggest that natural forests are 40 times more efficient as carbon sinks than newly planted forests,” the retired officials said in their letter, noting that India has already lost more than one crore acres of forest land in the 30 years prior to 1980 when the Forest (Conservation) Act came into force.
Individuals, communities
However, the heavy-handedness in the case of marginalised communities and favourable provisions for industries is not limited to one Bill. The Jan Vishwas Bill 2023, expected to be tabled in the ongoing session, also goes soft on industries. It seeks to decriminalise “minor” violations by amending several provisions of the Environment Protection Act, Air (Prevention and Control of Pollution) Act, 1981, and the Water (Prevention and Control of Pollution) Act, 1974, among others.
In its submissions before the committee looking into the Bill, the Vidhi Centre for Legal Studies noted that while the MoEF had sought to increase the penalty for violating Section 7 or 8 of the Environment Protection Act — currently ranging from Rs 5 lakh to Rs 5 crore. The Bill limited the penalty to range between Rs 1 lakh and Rs 15 lakh.
“The violation of provisions of the Air Act by companies has been treated at par with individual offences with no increased penalties. The penalties for offences by individuals are also decreased within the Air Act. For instance, for violating Section 37 of the Air Act, the minimum penalty is reduced by 90% (from Rs 1 lakh to Rs 10,000), and the maximum penalty is reduced by 85% (from Rs 1 crore to Rs 15 lakhs),” the submission said.
The individual, however, is not as safe as companies. The Centre has tightened its grip on persons violating green laws. In December 2022, the Union government’s Wildlife Protection Act was passed by both houses of Parliament, increasing the penalty for violation of most of its provisions from Rs 25,000 to Rs 1 lakh.
A month earlier, in November 2022, the Criminal Justice and Police Accountability Project (CJPA) assessed arrest records and records of offences in forest and wildlife offence cases registered between 2011 and 2020 in Madhya Pradesh. “Within the offences recorded by the Forest Department, close to 78% of the accused persons (totalling 2,790 across 1,414 offences) belonged to an oppressed caste community (SC, ST, denotified tribes and other marginalised),” the report said.
The Forest Rights Act was seen as a long-overdue attempt to mitigate their suffering. But the failure to effectively implement the Act has left tribals unable to access their rights and its misuse has led to large-scale encroachment across the country.
A comprehensive approach that integrates knowledge and practices of tribal groups into conservation strategies is needed to build a sustainable and inclusive society, said Debadityo Sinha, Lead, Climate and Ecosystems, Vidhi Centre for Legal Policy. “Lack of emphasis on creating awareness about crucial regulations has resulted in some provisions within forest and wildlife laws clashing with long-standing traditional practices of forest-dependent communities,” he said.
Taking the wind away
The UN Intergovernmental Panel on Climate Change (IPCC) has classified India as among the most vulnerable countries. The Reserve Bank of India's report published in May 2023 said the damage caused by climate extremes can cause a decline in GDP, by around 1 to 3 per cent from the baseline level in 2030. Many who oppose the Bill note that the government's move undermines India's performance in cutting emissions and increasing carbon stocks.
The amendments to the EIA notification have been introduced without mandatory public consultations, though the changes contradict the core principles of the Environment (Protection) Act and violate the fundamental principle of non-regression, said Sinha.
He also pointed out that the Jan Vishwas Bill's "uniform penalty" may not serve as a sufficient deterrent. "When determining compensation for environmental damages, it is essential to encompass not only the loss of human lives and property but also the damage inflicted upon biodiversity and ecosystems. A nuanced approach acknowledging the complex and diverse impacts would serve as a stronger deterrent," he said, noting the need to recognise the intrinsic value of ecosystems.
Worryingly, the Forest (Conservation) Amendment Bill gives full power to the Centre to lease forests to private entities while taking away the rights given to tribals under the Forest Rights Act (FRA). By dropping crores of acres from the ambit of the Forest Conservation Act, the Bill does away with the need to obtain consent from gram sabhas as specified under FRA.
Former Principal Chief Conservator of Forests B K Singh said the new Bill's provisions will weaken the law instead of fine-tuning it. “One can understand the proposal to exempt strategic and critical projects near the border. But a majority of the provisions are problematic, starting with the definition of the forest. The landmark ruling by the Supreme Court in the Godavarman case has helped to bring protection to forests which are yet to be notified. In Karnataka alone, we have 10 lakh acres of deemed forest which will not have the protection if the Bill goes through,” he said.
Singh further noted that in many states across the country, huge forest landscapes were still in the process of notification. “Mangroves on the eastern and western coast that provide a barrier during cyclones and reduce sea erosion are yet to be notified. What happens when they are gone? Technology and infrastructure can help in providing early warning but this will not mitigate the real problem at the local level,” he noted.
By watering down umbrella Acts too, governments have undermined the laws that provide for conservation at the neighbourhood level, said Anant Hegde Ashisar, former chairman of the Karnataka Biodiversity Board.
“The Biological Diversity Act, 2002 empowers the local governments — from gram panchayats to municipalities — to protect the resources in their jurisdiction. Over the last three years, some of the panchayats at village, taluk and district levels have set up biodiversity management committees but only a handful of them are actively working on it. Governments have made no efforts to activate them,” he said.
Nitin D Rai, formerly a fellow with the Ashoka Trust for Research in Ecology and the Environment (ATREE), said there was a need to change the very model of conservation to include people, especially those who live in forests. “India's ‘fortress model’ of conservation suffers from a colonial hangover. The forests are seen as assets to be exploited by those in power. Despite the Forest (Conservation) Act, we have lost a major chunk of natural forests to mining and industrialisation,” he said.
Citing the CJPA’s report, he said a study needs to be conducted across the country. “Those who lived and protected forests have been made outsiders and criminalised while the entire landscape is handed over to the industries. These are some of the reasons we advocated for a community-based conservation model where local actors have a voice and responsibility towards their environment,” he said, citing a policy paper published along with seven other researchers.
To a question, Forest, Ecology and Environment Minister Eshwar B Khandre said the diverse flora and fauna of Karnataka will be protected. Without commenting on the Centre’s amendment to the laws, the minister, however, promised the early implementation of the Biological Diversity Act.
“It is a landmark law that provides for protection of endemic species and rare varieties of crops, among others. The Act will be implemented strictly. Soon, a meeting will be held with the Minister for Rural Development and Panchayat Raj to coordinate further,” he said.
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