On August 22, the Mizoram Assembly unanimously passed a resolution opposing the Forest (Conservation) Amendment Act, 2023, “to protect the rights and interest of the people of Mizoram”. The amendment allows the diversion of forest land for roads, railway lines or “strategic linear projects of national importance and concerning national security” within 100 km of India’s international borders or lines of control, without a forest clearance under the Forest (Conservation) Act (FCA) 1980.
Most of India’s Northeast falls in this 100 km range. When it meets next week, the Nagaland Assembly will also face strident demands to pass a resolution against the Amendment. Tripura, Mizoram, and Sikkim – ruled by the Bharatiya Janata Party (BJP) or its allies – have also opposed the 100-km exemption clause.
Grant of FCA clearances
Special Constitutional protections – Article 371A for Nagaland and 371G for Mizoram – prohibit the application of any law enacted by Parliament that impinges on Naga and Mizo customary law and procedure, and ownership and transfer of land and its resources. Such laws can be extended to these States only if their Legislative Assemblies decide thus in a resolution.
Nagaland extended the application of the FCA “to government forests and such other forests and Wildlife Sanctuaries under the control of [the] State Government” (notification no. FOR-58/82, July 3, 1986). Government forests make up only 2.71% of the State’s Recorded Forest Area.
But in December 1997, the Home Ministry, in consultation with the Ministry of Law and Justice, confirmed to the Union Environment Ministry that the FCA is covered under the term “land resources” and is not applicable to Nagaland, as its legislative assembly hadn’t adopted any resolution to apply FCA to the State. In fact, since 1980, the Environment Ministry has not granted an FCA clearance to forests in Nagaland.
Contradicting this, the Environment Ministry informed the Nagaland Government in November 1998 that the Ministry of Law and Justice had clarified that the FCA is indeed applicable to the State.
This is not so with Mizoram: the Union Territory became a State with the Constitution (Fifty Third Amendment) Act 1986, adding Article 371G to the Constitution. It stipulated that all Central Acts in force before 1986 are extended to the State, including the FCA. Moreover, the powers of the Autonomous District Councils in the three Sixth Scheduled areas in Mizoram don’t extend to reserved forests. So the FCA covers 84.53% of forest areas that are notified forests, and 6,630 ha have thus far received FCA clearance.
The FCA is applicable in the rest of Northeast: in Meghalaya and Tripura, the Sixth Schedule Areas within these States, and in Arunachal Pradesh, Sikkim, and Manipur. Arunachal Pradesh ranked first among these States in FCA clearance (21,786.45 ha), followed by Tripura (9,051 ha), Assam (5,261 ha), Manipur (3,604 ha), Sikkim (2,902 ha), and Meghalaya (807 ha).
FCA 1980 vis-à-vis the Northeast
Over a million hectares of forest have been diverted nationwide under FCA since 1980. FCA exists to deforest the forest, under the Indian Forest Act 1927 or its State versions. In 1996, the Supreme Court expanded the term “forest land” in the FCA in the Godavarman case to “not only include ‘forest’ as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership”, thus extending the FCA to unclassed forests. These are recorded forests but not notified as forests.
More than half of the Northeast is Recorded Forest Area (RFA). Of this, 53% are unclassed forests controlled by individuals, clans, village councils or communities, and governed by customary law and procedures. The remainder is notified forest controlled by the State Forest Departments.
RFA ranges from 34.21% in Assam to 82.31% in Sikkim with Mizoram having 35.48%, Meghalaya 42.34%, Nagaland 53.01%, Arunachal Pradesh 61.55%, Manipur 78.01% and Tripura 60.02%. Of these, unclassed forests range from nil in Sikkim to 97.29% in Nagaland, with 15.47% in Mizoram, 33.43% in Assam, 42.96% in Tripura, 75.67% in Manipur and 88.15% in Meghalaya.
The apex court’s 1996 order brought unclassed forests under the FCA’s purview everywhere except in Nagaland, considering the 1997 Home Ministry clarification.
There are also forests outside RFA, neither recorded nor surveyed: 38.5% of the cover in Assam; 29% in Nagaland; and 1.5% in Mizoram.
FRA 2009 vis-à-vis the Northeast
In the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA) 2006, “forest land” includes unclassified forests, undemarcated forests, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National Parks. This complied with the 1996 Supreme Court redefinition.
While benefitting the Northeast states with sizeable unclassed forests, the FRA also included a specific provision in the list of rights: “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 tribal under any traditional or customary law of the concerned tribes of any State.”
Even if there are no FRA claims like those claimed by six of the eight Northeast States, nothing prevents these States from taking suo motu cognisance of the existing rights and obtaining the concerned Gram Sabha approvals for issuing titles. The Ministry of Tribal Affairs can also issue legally enforceable directions under Section 12 of the FRA, paving the way for this. This would add another layer of legal security to traditional community tenurial rights over forests.
But none of the Northeast States have implemented FRA except for Assam and Tripura. The reasons include the FRA being ‘irrelevant’ as communities, clans, chiefs and individuals own most of the land, and lack of forest-dependent forest-dwellers.
The Mizoram Legislative Assembly resolved on October 29, 2009, under Article 371G, to extend the FRA and its Rules with effect from December 31, 2009. But the Mizoram Assembly did a U-turn on November 19, 2019, declaring the FRA to not be relevant to the State since no claims for rights were forthcoming. It also referred to the Ministry of Tribal Affairs declining to sanction Rs 10 lakh to implement the FRA.
The Nagaland assembly, as required under Article 371A, is yet to decide whether it wants this law. A committee has been looking into it for years now.
FRA compliance under FCA
The Environment Ministry mandated FRA implementation and prior informed consent of the Gram Sabha in 2009 to admit a forest diversion proposal. The responsibility was delegated to the District Collector, who ironically also headed the District Committee that issues FRA titles. The Collectors’ certificate of FRA compliance in the in-principle Stage I forest clearance was shifted to Stage II final clearance.
But the Ministry’s 2022 Forest Conservation Rules eliminated compliance with the FRA before final approval altogether. Instead, it said that State governments “shall issue order for diversion, assignment of lease or dereservation as the case may be … after fulfillment and compliance” with the FRA “including ensuring settlement of rights”.
Taking this further, States can formulate and take legal measures to ensure mandatory fulfillment of the FRA before recommending a forest diversion proposal, and ensuring Gram Sabha consent before handing over forest land. The Ministry of Tribal Affairs can also issue legally enforceable directions under the FRA, or even enact a separate law, to recognise and settle forest rights when forests are diverted for other purposes and forest-dwellers are relocated, as forest rights fall squarely within its Business Rules.
This way, the States and the Tribal Affairs Ministry have a way to provide tenurial security to forest-dwellers and protect the forests.
C.R. Bijoy examines natural resource conflicts and governance issues.
