Introduction

In recent times, there has been a diversity of interpretations, confusions, assumptions, and concerns surrounding the protection of ‘unclassed forests’. All of these have been prompted by the proposed Forest (Conservation) Amendment Bill of 2023 which is being tabled in the Parliament of India.

Effect of the Forest (Conservation) Amendment Bill of 2023 on ‘Unclassed Forests,’

Firstly, it’s crucial to understand that not all ‘Unclassed Forests’ will be impacted by the proposed amendment. The term ‘Unclassed Forest’ is used in the Forest Survey of India and includes all forests outside of ‘Notified Forests’ (under the Indian Forest Act, 1927 or State equivalents), encompassing both recorded and unrecorded forests. The amendment will only apply to ‘recorded forests,’ which means forests that have been officially recognized and documented.

A ‘recorded forest’ does not necessarily have to be recorded by the States or approved by the Principal Chief Conservators of Forests (“PCCFs”). The amendment explicitly states that even forests recorded by local bodies, communities, or councils recognized by the State/Union Territory will be considered as ‘forests.’ This provision is essential to address concerns raised in the North-Eastern States.

In the North-Eastern States, Article 244 of the Constitution read with the Sixth Schedule allows for the establishment of autonomous district councils in Assam, Meghalaya, Mizoram, and Tripura. Under these provisions, such councils have the authority to make laws for forests, except for those notified as Reserve Forests by the State. Nagaland and Manipur are treated as special states under Article 371 of the Constitution, which further introduces exceptions regarding land ownership and transfers.

Due to these unique provisions, a significant portion of the forests in the North-Eastern States remain ‘Unclassed Forests.’ For example, 97.3% of forests cover in Nagaland, 88.2% in Meghalaya, 76% in Manipur, 53% in Arunachal Pradesh, 43% in Tripura, and 33% in Assam fall under this category (source). However, this does not mean these lands are not considered as forests in the records of village councils. Therefore, the proposed amendment does not exclude such lands recorded as forests by the village councils.

Now, it is essential to determine how much of the ‘Unclassed Forests’ in the North-Eastern States are under the control of the State and how much are under the control of the ‘Autonomous Village/District Councils.’ Additionally, it is crucial to identify how much of this land is recorded by these councils as ‘forest’ or designated as ‘community conservation areas’ (“CCAs”). If village councils record such areas as forests, then, in my opinion, these CCAs should be considered as ‘Recorded Forests’ under the Forest Conservation Act of 1980. However, implementing national/state laws or diverting such lands might not be easy in these areas, as village councils in this region are strong and prefer minimal interference from the State or Centre in their customary laws.

Further, there are other categories of forests that will be affected by the 2023 amendment:

• Lands proposed to be notified as forests: This category includes lands that were either allotted to the forest department or were intended to be declared as forests through communication or notification, but the process under the Indian Forest Act, 1927 (under sections 4 and 20) has not yet begun. These lands are not included in the classification of forests covered under the proposed amendment.
• Areas to be identified as deemed forests: This category comprises forest-like areas or traditionally conserved lands that are supposed to be identified as deemed forests, either due to Supreme Court orders in (T.N. Godavarman Thirumulpad vs Union of India & Ors) or community demands. Examples include Orans/rundhs in Rajasthan and the Aravalis in Haryana.
• Lands diverted by the State before 1996: A new proviso in the amendment exempts lands diverted by the State before 1996 from the applicability of the Act. This means that all forest lands that were illegally diverted (without approval under the Forest Conservation Act of 1980) even after 1980 will be legalized. This blanket exemption raises concerns as it could threaten all forests, including deemed, recorded, or notified ones that were previously protected under the T.N. Godavarman order.

Conclusion

The proposed Forest (Conservation) Amendment Bill of 2023 although regulates recorded forests, it is important to identify the extent of the unclassed forests as reported by Forest Survey of India which are not recognized as ‘forests’ by village councils and State Departments in the North-Eastern States. Other categories of forests that will be affected include proposed forests, prospective deemed forests, and previously diverted lands (by States) exempted by the proposed amendment. The implications of these amendments warrant thorough legal research and interpretation, and opinions are welcome to ensure a well-informed perspective and clarity.