by LEO F. SALDANHA for the Frontline
They could open up precious forest resources to the exploitation of private companies.
The seamless passage of the Biological Diversity (Amendment) Bill, 2021, and the Forest Conservation (Amendment) Bill, 2023, in the Lok Sabha and the Rajya Sabha, effectively emasculating regulatory powers contained in the parent laws, namely, the Biological Diversity Act (BDA) 2002 and the Forest Conservation Act (FCA) 1980, was guaranteed by the absence of the entire opposition, which was boycotting Parliament demanding that Prime Minister Narendra Modi speak on the Manipur crisis.
As Jairam Ramesh, Rajya Sabha MP and former Environment Minister, has stated, the BDA amendments were pushed through rejecting all but one of the 21 recommendations proposed by the Joint Parliamentary Committee (JPC) that reviewed the Bill. And in the case of the FCA, another JPC constituted in March this year, unsurprisingly filled with BJP MPs, just sent it on without recommending any changes. The implications of these amendments on the country’s socioeconomic and ecological securities are immense and deeply worrying.
Key changes in BDA, FCA
In the case of the BDA, criminal prosecution of violators has been done away with, which is likely to encourage biopiracy; the National Biodiversity Authority, which was originally established as an autonomous regulator, is now a body consisting of 16 Central government officials and four officials from State biodiversity boards, ending the possibility of it functioning independently; the unclear rendering of the term ‘benefit claimers’ and non-specification of ‘codified traditional knowledge’, a term that is repeatedly used, open up a Pandora’s box on the implementation of the access and benefit-sharing protocol’; and exempting AYUSH practitioners from complying with the law will, in all likelihood, make biodiversity management committees mere window dressing in the regulatory schema. Biopiracy, bio-loot, and reckless bio-extraction are likely to follow.
The new FCA removes the protection accorded to “deemed forests” by the 1996 Godavarman judgment, opening up as much as 25 per cent of the nation’s forests to urbanisation, mining, polluting industries, and infrastructure development. This is likely to prevent millions of tribal people and other forest-dwelling communities in such regions from securing their rights under the Forest Rights Act 2006 (FRA). It opens up all forested areas 100 km from the borders, or Line of Control, or Line of Actual Control, for “strategic project of national importance and concerning national security”—with serious implications to the rights of communities who live there, especially in the north-eastern region and the trans-Himalayan region, desert ecosystems, coastal areas, and islands. It also allows for fairly large permanent security establishments to come up in forested areas dominated by left-wing extremism, opening the door for weaponising of forest laws. And it allows zoos and ecotourism projects to come up as forest activities while further weakening the power of State governments in deciding the future of forests.
There is nothing surprising in these changes. They are in keeping with the trend that Modi set as soon as he became Prime Minister. His first major policy decision was to set up a high-level committee (HLC) headed by T.S.R. Subramanian, a retired Cabinet Secretary, to recommend within two months amendments to six major laws governing environment, biodiversity, forests, and pollution control, taking into account all judgments, so as to ensure “ease of business”.
The committee rushed through the exercise, holding ritual consultations here and there, and delivered its report in three months. Its key recommendation was to train the country’s environmental jurisprudence to rely on the “principle of utmost good faith” in investors to self-govern—keeping in mind the environment and associated socioeconomic and ecological rights. At the time, this deeply troubled leading environmental scholar Dr Ramaswamy R. Iyer, who retired as Water Resources Secretary.
In an email exchange with his junior colleague Subramanian, in which he marked this author and some others,he wrote: “The point that remains is that the establishment of the HLC seems a disingenuous exercise. Many, including myself, suspect that the intention is to render all the environmental laws purely ornamental and all clearance procedures mere formalities. In other words, virtual repeal seems the real objective. It seemed to many of us that a whole series of environmental laws embodying several decades of enlightenment were about to be rendered dead letters.” (emphasis added)
(The email exchange took place in September and October 2014. Iyer passed away in September 2015 and Subramanian in February 2018.)
Iyer’s terse summation of Subramanian’s report seems prophetic now. Soon after the report was published, nationwide condemnation of its recommendations forced the then Environment Minister Prakash Javadekar to promise that it would not be implemented without detailed public debate and discussion. But that never happened. Instead, the Subramanian Committee recommendations began to seep through various actions of the Ministry of Environment, Forest and Climate Change, often in the form of executive circulars that systematically and substantially diluted statutory provisions protecting forest, forest rights, and biodiversity.
- The implications of these amendments on the country’s socioeconomic and ecological securities are immense and deeply worrying.
- In the case of the BDA, criminal prosecution of violators has been done away with, which is likely to encourage biopiracy.
- It is plausible then that the current amendments to the forest and biodiversity protection laws were not entirely an outcome of a sovereign process of law-making.
When Dr Harsh Vardhan succeeded Javadekar, he came up with the deeply problematic Draft National Forest Policy, 2018. This also drew nationwide protests as it was considered a naked attempt to privatise forestry, push millions of tribal people and forest-dwelling communities out of forests, and open up forests for extraction—particularly of bioresources and minerals.
The 324th Parliamentary Standing Committee on Environment and Forests, Science and Technology also found that the policy was formulated without involving the Ministry of Tribal Affairs per the Government of India Allocation of Business Rules, 1961. Given such harsh criticisms, this policy was withdrawn.
But the task of bringing the country’s forests and biodiversity laws in line with the Subramanian Committee’s recommendations continued. It took a turn for the worse when Forest Conservation Rules, 2022, were issued exempting the statutory requirement of prior consent of the Forest Rights Committees (constituted under the FRA) in certain cases—a vague and problematic determination that soon became the norm rather than the exception.
If these Rules had been applicable a decade ago, Vedanta could have seamlessly secured approvals for mining bauxite in Niyamgiri, and the particularly vulnerable Dongria Kondh tribes would have been displaced and dispersed. Besides, their sacred forests would have been devastated and the communities reduced to the miserable state that communities in Kolwezi in Congo find themselves in due to reckless mining of cobalt to feed the insatiable demands of the ever-expanding electronics and electronic vehicles sector.
With the new FCA, the 2022 rules seem like a poor sideshow: the land the Dongria Kondhs fought so hard to protect and for which they successfully secured support from the Supreme Court in the Niyamgiri judgment would be impossible to protect now, as they are not recorded as forests any more. Thus, they can be diverted for any non-forest use, including, especially, for mining by Vedanta.
Such attacks on India’s hard-fought environmental jurisprudence have preceded Modi’s style of governance. Proposals to weaken environmental regulation first emerged when the task of securing forest diversion clearances was termed “bottlenecks to economic growth” by the Govindarajan Committee of Investment Reforms (2002) set up by the BJP government under Atal Bihari Vajpayee. One of the major recommendations was to amend environmental and forest protection laws so that such “bottlenecks” could be removed.
One of the members of this committee was Pradipto Ghosh. He was appointed Secretary of the Ministry of Environment, Forest and Climate Change when Manmohan Singh was Prime Minister and A. Raja of the DMK was the Central Environment Minister. Drawing inspiration from the Govindarajan Committee recommendations, Ghosh went on to formulate the Environmental Policy, 2005, which advocated a new environmental jurisprudence that encouraged a shift from criminal jurisprudence when it came to environmental violations. They were to be treated merely as civic offences.
Soon after, by executive fiat, a highly bureaucratised system evolved with the Environment Impact Assessment Notification, 2006, a subordinate law that substantially weakened public involvement in environmental decision-making. As a result, a core commitment India made by ratifying the Rio Declaration and Convention on Biological Security in 1992, of deepening democratic decision-making in environmental matters, was negated.
This was soon followed, in 2009, by the Environment Ministry taking a large grant (of up to $500,000) from the US Environment Protection Agency (EPA), and explicitly committing “to address environmental violations through civil processes rather than through the current criminal system”. Most problematically, the Ministry also committed itself to allowing the EPA to direct which way India’s environmental jurisprudence would go by organising activities, including a “…dialogue [which would] be preceded by an analysis, to be developed by EPA, of India’s current and relevant statutory provisions, with a discussion of their interpretations and application in civil cases, as well as specific recommended changes to the Indian Constitution or environmental statues/regulations that are necessary to establish civil judicial authorities”.
What the current Environment Minister Bhupendra Yadav has done to the BDA is to implement what the EPA prescribed over a decade ago. The emasculation of the regulatory strength of the law by removing criminal penalties against violations is nothing short of India truncating its environmental laws to meet the long-standing demands of the US and transnational corporations—to ensure there is no criminal jurisprudence.
It is plausible then that the current amendments to the forest and biodiversity protection laws were not entirely an outcome of a sovereign process of law-making. When seen in the context of multiple assurances by the Modi administration to foreign investors guaranteeing “ease of doing business,” the constitutional implications for the sovereignty of the country are deeply worrying.
In multiple Supreme Court, High Court, and National Green Tribunal rulings, in speeches by politicians and bureaucrats in the country and at global forums, our environmental and forest protection laws are held out as an exemplar of progressive environmental jurisprudence. It is only when one tests their efficacy in tackling pollution, biopiracy, and forest destruction does it become evident that the promising provisions are rendered infructuous due to regulatory failures and judicial delays.
While the courts have stepped up to the environmental cause in multiple cases, without which the situation would have been far worse, the utter lack of environmental regulatory capacities becomes apparent. The harsh truth is that Finance Minister Nirmala Sitharaman has systematically reduced budgetary allocations to Environment Ministry.
Consequently, as environmental degradation and resultant conflicts increase every day, the institutional capacity to tackle them is absolutely lacking.
This is clear from a cursory survey of environmental litigations, which indicate that most cases are about regulatory failures. Reforms to the environmental decision-making processes were needed.
But the real reforms demanded were in building transparency and accountability in the decision-making systems, in revamping and building capacities of environmental regulators, and in ensuring that public involvement in environmental decision-making was structurally and statutorily formalised. That has never been on the Modi administration’s agenda.
In 2002, Justice V.R. Krishna Iyer summed up the crisis in the environmental regulatory situation in a paper titled “From Ratlam to Ramakrishna”: “If environmental justice is to be a reality, regulatory mechanisms must call to order corporate misbehaviour. The Bhopal disaster caused by Union Carbide has proved the impotency of the three instrumentalities: the executive, the legislature, and the judiciary.”
Were Krishna Iyer alive today, he would be livid at how Parliament, sans an Opposition, has emasculated two critical laws that protect India’s biodiversity and forests.
What should worry us even more is that it is not over. Bhupendra Yadav is likely to introduce Bills in the winter session of Parliament to amend pollution control laws and even the Environment Protection Act, 1986. The implications are frightening to imagine.
When the system so comprehensively failed despite having the power of utilising criminal law to enforce environmental, forest, and biodiversity protection laws, one can only wonder what the outcome will be when such regulatory powers are completely removed and these vital areas are protected merely by civil prosecution powers.
Clearly, this is not the environmental stewardship and jurisprudence the country deserves, especially at a time when its forests and forest communities and its urban and rural ecosystems are already reeling from the impact of climate change.
(Leo F. Saldanha is an environmental policy analyst who works with Environment Support Group in Bangalore. He can be reached at [email protected].)