INTRODUCTION
Forest law in India has never been only about trees. From the Indian Forest Act of 1878 to its 1927 successor, the colonial state used the technique of reservation to convert inhabited landscapes into government estates, and in the process turned Adivasi communities into encroachers on land they had cultivated, grazed and worshipped for generations.1 The Forest (Conservation) Act, 1980 deepened this centralisation by requiring the prior approval of the Central Government before any forest land could be dereserved or diverted to a non-forest purpose.2 Against this long history, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was a legislative confession. Its preamble records that the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers were not adequately recognised in the consolidation of State forests during the colonial period or in independent India, and that a historical injustice had to be undone.3
The Forest (Conservation) Amendment Act, 2023, which renamed the parent statute the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980, travels in the opposite direction.4 It confines the operation of conservation law to notified and recorded forests, exempts wide categories of land and projects from the requirement of prior approval, and enlarges the list of activities that may be carried out on forest land without any clearance at all. Read together with the Forest (Conservation) Rules, 2022, which severed forest clearance from prior compliance with the Forest Rights Act, the amendment shrinks the legal space within which Adivasi land rights are secured.5
This paper examines that shrinkage as a constitutional problem rather than a merely administrative one. Part II sets out the architecture of the Forest Rights Act as a statute of restitution. Part III analyses what the 2023 amendment actually changes. Part IV maps the points of collision between the two regimes. Part V evaluates the constitutional challenge now pending before the Supreme Court in Ashok Kumar Sharma v. Union of India and the grounds on which the amendment is vulnerable. Part VI suggests a framework of reconciliation, and Part VII concludes.
THE FOREST RIGHTS ACT, 2006: A STATUTE OF RESTITUTION
The Forest Rights Act does three distinct things. First, it recognises pre-existing rights. Individual forest rights permit self-cultivation and habitation on forest land occupied before the cut-off date, subject to a ceiling of four hectares.6 Community rights include nistar, grazing, access to water bodies, ownership of minor forest produce and, most significantly, the right under Section 3(1)(i) to protect, regenerate, conserve and manage any community forest resource which the community has traditionally protected.7 The statute is explicit that these rights are recognised and vested, not conferred. The state does not grant them; it acknowledges that it had wrongly failed to record them.
Secondly, the Act democratises forest governance. Section 5 empowers the Gram Sabha and holders of forest rights to protect wildlife, forests and biodiversity, and to regulate access to community forest resources.8 The Gram Sabha initiates the process of determining claims, and no other authority may reject a claim without following the statutory appellate route. Thirdly, the Act creates a shield against dispossession. Section 4(5) provides that no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete.9
The executive briefly internalised this design. A 2009 circular of the Ministry of Environment and Forests directed that no proposal for diversion of forest land would be considered unless the FRA process was complete and the concerned Gram Sabhas had consented to the diversion.10 The Supreme Court gave the design constitutional weight in the Niyamgiri case, holding that the Gram Sabha, acting under the FRA, was the competent body to decide whether the proposed bauxite mining by a Vedanta subsidiary would affect the religious and community rights of the Dongria Kondh, and directing that its decision be obtained before the project could proceed.11 All twelve Gram Sabhas rejected the project, and the rejection held. Niyamgiri remains the clearest statement in Indian law that conservation and development decisions in Adivasi landscapes must pass through the community itself.
Implementation, however, has lagged far behind design. Claim rejection rates remain high, community forest resource titles cover a fraction of their potential area, and in 2019 the Supreme Court was persuaded, in a challenge to the constitutionality of the FRA itself, to order the eviction of lakhs of households whose claims had been rejected, an order stayed within a fortnight once the quality of the rejections was questioned.12 The FRA has therefore always been a statute under siege. The 2023 amendment must be read against that background.
THE 2023 AMENDMENT: NARROWING THE FIELD OF CONSERVATION LAW
For over a quarter century, the reach of the Forest (Conservation) Act was defined not by the statute but by the Supreme Court. In T.N. Godavarman Thirumulpad v. Union of India, the Court held that the word ‘forest’ must be understood according to its dictionary meaning, and that the Act applies to all forests irrespective of ownership or classification, including areas recorded as forest in any government record.13 This jurisprudence brought so-called deemed forests, unclassed forests and forest-like areas within the protective net of Section 2. The coverage matters: according to the India State of Forest Report 2021, more than a quarter of the country’s forest cover lies outside recorded forest areas.14
The 2023 amendment legislatively reverses this position. The newly inserted Section 1A(1) confines the Act to land declared or notified as forest under the Indian Forest Act, 1927 or any other law, and to land recorded as forest in government records on or after 25 October 1980, while excluding recorded forest land that was put to non-forest use before 12 December 1996 under a lawful order.15 Land that answers the dictionary description of a forest but is neither notified nor recorded falls outside the statute altogether. Section 1A(2) then carves out express exemptions: forest land within one hundred kilometres of an international border, the Line of Control or the Line of Actual Control proposed for strategic linear projects of national importance; up to 0.10 hectare alongside rail lines and public roads for connectivity; up to ten hectares for security related infrastructure; and defence, paramilitary and public utility projects in Left Wing Extremism affected districts.16
A third change operates inside Section 2. An expanded explanation now excludes from the expression ‘non-forest purpose’ a list of activities including government owned zoos and safaris outside protected areas, ecotourism facilities provided for in approved plans, and silvicultural operations.17 These activities may therefore be undertaken on forest land without central approval and, consequently, without the procedural checkpoints that approval triggers. The Bill was not sent to the Department-related Standing Committee on Science and Technology, Environment and Forests; it was referred instead to a specially constituted Joint Committee, which endorsed it without amendment despite receiving well over a thousand submissions in objection.18
The stated objects are not trivial. The amendment invokes national security imperatives in border areas, the target of carbon neutrality by 2070, and the need to remove ambiguity about the applicability of the Act to private plantations. But the technique chosen is categorical exclusion rather than calibrated regulation, and it is the excluded categories that overlap most heavily with Adivasi landscapes.
THE COLLISION: WHERE THE AMENDMENT MEETS ADIVASI LAND RIGHTS
The Forest Rights Act does not confine itself to notified forests. Rights under it subsist on ‘forest land of any description’, which includes unclassed and deemed forests. When such land is removed from the coverage of the conservation statute, the rights themselves do not vanish, but the procedural moment at which they were verified disappears. Under the clearance regime as it stood after 2009, the diversion file could not move without evidence that the FRA process was complete and that Gram Sabha consent had been obtained.19 Land outside the Adhiniyam now needs no diversion file at all.
This is the first collision: the amendment dismantles the checkpoint, not the right. The second collision predates the amendment and is entrenched by it. The Forest (Conservation) Rules, 2022 restructured the clearance process so that in-principle and even final approval can precede compliance with the FRA, which is pushed to the stage at which the State Government issues the diversion order.20 The National Commission for Scheduled Tribes formally recommended that the Rules be put on hold as violative of the FRA; the Ministry rejected the recommendation.21 The sequencing matters because bargaining power collapses once a project holds central approval. A Gram Sabha asked for consent after the investment decision has been blessed is not consenting; it is being notified.
The third collision is geographic. The hundred kilometre border exemption covers most of the Himalayan and North-Eastern states, including Sixth Schedule areas, and substantial Fifth Schedule territory along international frontiers. The Left Wing Extremism exemption maps almost exactly onto the central Indian Adivasi belt. Zoos, safaris and ecotourism facilities are, by definition, located in forests where communities live. In each case, the category of land freed from scrutiny is the category where Scheduled Tribe populations are concentrated, and the statutes that would otherwise demand consultation or consent, PESA in Scheduled Areas and the land acquisition law where acquisition is involved, are left to operate without the conservation statute’s reinforcement.22 23
THE CONSTITUTIONAL BATTLE
Parliament’s competence to enact the amendment is not seriously contestable; forests sit in Entry 17A of the Concurrent List.24 The battle is over substantive limits, and it is being fought on four fronts.
First, Article 14. The classification adopted by Section 1A turns on the state of government records rather than on the ecological character of the land or the dependence of communities upon it. A forest that was never recorded is treated differently from an identical forest that was, though the object of the statute, conservation, applies equally to both. Under the doctrine of manifest arbitrariness, legislation that is capricious or enacted without adequate determining principle is open to challenge.25 The cut-off of 12 December 1996 is particularly awkward: it is the date of the Godavarman order, and its use to validate pre-1996 conversions rewards precisely the diversions the order was meant to arrest.
Secondly, Article 21. The right to a wholesome environment has been part of the right to life since Subhash Kumar and Virender Gaur.26 In M.K. Ranjitsinh, the Supreme Court articulated a right against the adverse effects of climate change grounded in Articles 14 and 21, which cuts both ways in this debate but at minimum requires that measures reducing forest protection be justified with rigour.27 The public trust doctrine treats forests as held by the state for the public, not owned by it for disposal.28 A statute that removes a quarter of the forest estate from protective coverage invites scrutiny under the emerging principle of non-regression: the state may recalibrate environmental regulation, but it may not simply abandon protection without a countervailing mechanism.
Thirdly, Article 244 read with the Fifth Schedule. In Samatha v. State of Andhra Pradesh, the Supreme Court held that land in Scheduled Areas is subject to a protective regime in which transfer to non-tribals, including the state’s own lessees, is presumptively impermissible, and that the governance of Scheduled Areas must be oriented to the welfare of the Scheduled Tribes.29 The FRA and PESA are the legislative machinery of that constitutional promise. An amendment to a general conservation statute cannot impliedly repeal that machinery, but it can starve it of enforcement occasions, and that is the gravamen of the constitutional objection: the amendment achieves indirectly, through exemption and exclusion, what a direct repeal of Gram Sabha consent could not constitutionally attempt.
Fourthly, the pending litigation. In Ashok Kumar Sharma v. Union of India, retired forest officers and conservationists have challenged the amendment. By an interim order of 19 February 2024, the Supreme Court directed that the expression ‘forest’ shall continue to bear the meaning assigned in Godavarman until the consolidated record of forests contemplated by the new regime is prepared, required States and Union Territories to forward their records of forest-like areas, unclassed and community forest lands to the Centre for publication, and restrained the grant of final approval for zoos and safaris on forest land without the leave of the Court.30 The interim order is significant for what it presumes: that the Godavarman definition is the constitutional baseline, and that the amendment’s narrower field cannot operate until the record-making it promises actually exists. The final hearing will decide whether that baseline is merely transitional or is constitutionally compelled.
Even if the Court declines to strike the amendment down, reading it down is a realistic outcome: Section 1A can be construed to include all Godavarman forests pending completion of a transparent consolidated record, and every exemption under Section 1A(2) and the Section 2 explanation can be conditioned on prior compliance with the FRA and, in Scheduled Areas, on Gram Sabha consent. That construction would preserve the amendment’s legitimate objects while restoring the checkpoint the FRA presupposes.
RECONCILING CONSERVATION AND RIGHTS
The deeper error in the 2023 amendment is its premise that conservation and community rights are competing claims on the same land, so that strengthening one requires weakening the other. The Indian evidence points the other way. The Dongria Kondh’s defence of Niyamgiri was simultaneously an assertion of religious rights and an act of conservation.31 Villages holding community forest resource titles in central India have regenerated degraded bamboo and sal forests under Gram Sabha management. Where communities hold secure, recognised rights, they behave as owners of the long term; where their tenure is precarious, the forest becomes an open access frontier for whoever arrives with a permit.
A durable settlement would have four elements. First, completion of the FRA’s unfinished business: time-bound recognition of individual and community claims, with review of wrongful rejections, so that the rights baseline is known before any diversion decision. Secondly, statutory reinstatement of sequence: no in-principle approval, and no use of any exempted category, until the FRA process is complete and consent is recorded, restoring the 2009 circular’s logic in the text of the Adhiniyam and the Rules. Thirdly, Scheduled Area screening: any project invoking the border, security or Left Wing Extremism exemptions within a Fifth or Sixth Schedule area should require the concurrence of the Gram Sabha and consultation with the Tribes Advisory Council. Fourthly, a transparent national forest record, prepared with public participation and expert oversight, so that the boundary of the law’s application is no longer an artefact of colonial-era survey accidents.
CONCLUSION
The Forest (Conservation) Amendment Act, 2023 is conventionally debated as environmental law, but its most consequential effects are distributive. It reallocates power over land, away from the courts’ expansive definition of forest, away from the clearance process in which recognised rights had to be reckoned with, and away from the Gram Sabha whose consent the FRA and Niyamgiri had made central. The Forest Rights Act answered a century of dispossession with a simple proposition: those who live in the forest hold rights in it that precede the state’s records. The amendment answers with an equally simple counter-proposition: only the records count.
The Constitution has confronted this choice before. Samatha, Niyamgiri and the interim order in Ashok Kumar Sharma each insisted that neither development nor conservation in Adivasi country may be pursued over the heads of its inhabitants. Whether the Supreme Court strikes the amendment down, reads it down, or upholds it, the constitutional standard it applies will determine whether the historical injustice the FRA set out to undo is finally remedied, or merely renamed.
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Footnotes
1. Indian Forest Act, 1927, No. 16, Acts of Parliament, 1927 (India); see also Indian Forest Act, 1878.
2. Forest (Conservation) Act, 1980, No. 69, Acts of Parliament, 1980 (India), § 2.
3. Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, No. 2, Acts of Parliament, 2007 (India), pmbl. [hereinafter FRA].
4. Forest (Conservation) Amendment Act, 2023, No. 15, Acts of Parliament, 2023 (India).
5. Forest (Conservation) Rules, 2022, Gazette of India, pt. II sec. 3(i) (June 28, 2022).
6. FRA, §§ 3(1)(a), 4(6).
7. FRA, § 3(1)(c) (ownership of minor forest produce); § 3(1)(i) (right to protect, regenerate, conserve and manage community forest resources).
8. FRA, § 5.
9. FRA, § 4(5).
10. Ministry of Environment and Forests, Circular No. F. No. 11-9/1998-FC (pt.) (Aug. 3, 2009) (requiring completion of the FRA process and Gram Sabha consent before proposals for diversion of forest land are entertained).
11. Orissa Mining Corp. Ltd. v. Ministry of Environment & Forest, (2013) 6 SCC 476 (India).
12. Wildlife First v. Ministry of Environment, Forest & Climate Change, W.P. (C) No. 109 of 2008 (SC), order dated Feb. 13, 2019 (directing eviction of claimants whose claims stood rejected), stayed by order dated Feb. 28, 2019.
13. T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267 (India).
14. Forest Survey of India, India State of Forest Report 2021 (Ministry of Environment, Forest and Climate Change, 2022) (recording that a little over one fourth of India’s forest cover lies outside recorded forest areas).
15. Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980, § 1A(1), inserted by the Forest (Conservation) Amendment Act, 2023.
16. Id. § 1A(2).
17. Id. § 2, Explanation (excluding, inter alia, government owned zoos and safaris outside protected areas, ecotourism facilities and silvicultural operations from the expression ‘non-forest purpose’).
18. Report of the Joint Committee on the Forest (Conservation) Amendment Bill, 2023 (Parliament of India, July 2023).
20. Forest (Conservation) Rules, 2022, r. 9, read with the clarificatory guidelines of the Ministry of Environment, Forest and Climate Change dated Nov. 8, 2022.
21. National Commission for Scheduled Tribes, communication to the Ministry of Environment, Forest and Climate Change (Sept. 2022) (recommending that the Forest (Conservation) Rules, 2022 be put on hold as violative of the FRA).
22. Panchayats (Extension to the Scheduled Areas) Act, 1996, No. 40, Acts of Parliament, 1996 (India), § 4(d), (i).
23. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, No. 30, Acts of Parliament, 2013 (India), §§ 41-42.
24. INDIA CONST. sched. VII, List III, Entry 17A.
25. Shayara Bano v. Union of India, (2017) 9 SCC 1 (India) (recognising manifest arbitrariness as a ground for striking down legislation under Article 14).
26. Subhash Kumar v. State of Bihar, (1991) 1 SCC 598; Virender Gaur v. State of Haryana, (1995) 2 SCC 577 (India).
27. M.K. Ranjitsinh v. Union of India, 2024 SCC OnLine SC 570 (India) (recognising a right against the adverse effects of climate change under Articles 14 and 21).
28. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India).
29. Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191 (India).
30. Ashok Kumar Sharma v. Union of India, W.P. (C) No. 1164 of 2023 (SC), interim order dated Feb. 19, 2024.
31. Orissa Mining Corp., supra note 11, ¶¶ 58-60.