Abstract

The Forest Conservation Amendment Act, 2023, represents a fundamental shift in India’s forest governance framework, transforming it from a conservation-focused regime to a development-facilitating mechanism that systematically excludes forest-dwelling communities from decision-making processes. This analysis examines how the Amendment’s key provisions—territorial exemptions through arbitrary cut-off dates, blanket permissions for development activities, and expanded administrative discretion in redefining “non-forest use”—collectively undermine constitutional protections guaranteed under Article 244 and the Fifth Schedule. The Amendment’s retrospective validation of pre-1980 and pre-1996 land diversions strips millions of hectares of legal protection, while its centralization of implementation powers directly conflicts with decentralized governance mandates established by the Forest Rights Act, 2006, and PESA, 1996. Empirical evidence from Telangana’s COVID-era evictions and the controversial Vadhavan port project in Maharashtra demonstrates how procedural exclusions translate into physical displacement and democratic marginalization. The amendment’s open-ended delegation of authority to the Central Government effectively permits regulatory exemption through administrative notification, bypassing participatory thresholds that constitutional law demands. While ostensibly aimed at administrative efficiency, the cumulative effect creates a legal framework where executive discretion consistently trumps community consent, development imperatives override Indigenous rights, and procedural convenience substitutes for constitutional compliance. The Supreme Court’s pending review in Ashok Kumar Sharma v. Union of India presents a critical opportunity to determine whether administrative streamlining can justify the exclusion of constitutionally protected communities from governance processes that directly affect their survival and cultural identity.

Introduction

The Forest Conservation Amendment Act, 2023 (2023 Amendment), currently under challenge in Ashok Kumar Sharma v. Union of India, fundamentally alters India’s forest governance landscape. While the government frames it as administrative streamlining, the reality is far more troubling. This amendment systematically excludes forest-dwelling communities from decisions that affect their very survival, potentially violating constitutional protections under Article 244 and the Fifth Schedule.

As an environmental lawyer and field researcher who has witnessed the impact of top-down forest policies on tribal communities, I find this Amendment poses a significant constitutional challenge if implemented. The law transforms forest governance from a conservation-focused framework into a development-facilitating mechanism that operates by excluding the very people who have protected these forests for generations.

The Great Exclusion: What Land No Longer Counts as “Forest”

The Amendment’s Section 1A creates two problematic cut-off dates that exempt vast areas from forest protection. The first exempts land recorded as forest before October 25, 1980, but never officially notified. The second exempts land diverted to non-forest use before December 12, 1996, the date of the landmark Godavarman judgment that expanded forest protection nationwide.

These dates might appear as mere administrative housekeeping, but their impact is profound. Millions of hectares that function ecologically as forests and support tribal communities are now stripped of legal protection. The legislative rationale appears to be regularizing long-standing land-use practices, but the practical effect is to retroactively legitimize past violations, regardless of whether communities consented or constitutional processes were followed.

Consider what this means for a tribal village that has sustainably managed forest land for centuries. Even if their land was recorded as forest in revenue records, if it wasn’t formally notified before 1980, it now falls outside the Act’s protective umbrella. Similarly, if forest land was diverted for any purpose before 1996, that diversion is now legally sanctified, even if it violated the rights of forest-dwelling communities or occurred without their knowledge.

The Supreme Court’s intervention in T.N. Godavarman Thirumulpad v. Union of India was precisely meant to prevent such arbitrary exclusions and ensure that all forest land, regardless of its classification in government records, received adequate protection. By using the Godavarman judgment date as a cut-off, the amendment effectively neutralizes the very legal protection that the judgment sought to provide.

Blanket Permissions: When “Development” Bypasses Democracy

Section 1A(2) creates exemptions that remove entire categories of activities from the Act’s purview. Strip plantations for infrastructure projects, construction activities near international borders, and small-scale built structures are now exempt from forest clearance requirements. While these exemptions might be justified on grounds of national security, administrative efficiency, or development imperatives, they operate without the procedural safeguards that constitutional law demands.

The constitutional problem becomes acute when we consider that these exemptions operate without mandatory environmental assessments or Gram Sabha consultations. In Scheduled Areas, where the Constitution demands special protections for tribal communities, this becomes a direct assault on the principle of tribal self-governance. The Fifth Schedule was incorporated into the Constitution precisely to ensure that development in tribal areas occurs with community participation and consent.

The recent controversy over the Vadhavan port project in Maharashtra illustrates how development projects proceed despite overwhelming community opposition. The Environment Ministry granted environmental clearance for the Rs. 76,220-crore port project in February 2024, despite 51,991 objections and suggestions raised during public hearings. The project will destroy ecologically sensitive mangrove areas, coral reefs, and breeding grounds for the endangered ghol fish, yet received approval after the government conveniently reclassified ports as “non-red category” industries, removing them from the list of polluting activities.

What makes the Vadhavan case particularly troubling is how systematically community voices were marginalized. While the Environmental Impact Assessment report was made available to gram panchayats, it was not sent to the 56 fishermen’s societies and associations from Mumbai to Palghar. The project affects over 17,000 fishing families across 21 villages, yet their traditional knowledge and concerns about marine biodiversity were dismissed in favor of administrative convenience.

These blanket exemptions can cumulatively alter entire landscapes without engaging the legal structures intended to represent local interests. A series of “small” infrastructure projects, each individually exempt, can collectively transform a forest ecosystem and displace communities dependent on it. The absence of a cumulative impact assessment or community consultation mechanisms makes this transformation both legally invisible and democratically illegitimate.

The existing legal framework, including the Forest Rights Act (FRA) and the Panchayat (Extension to the Scheduled Areas) Act, 1996 (PESA), mandates that any change in forest land use must involve the affected communities. These blanket exemptions create a parallel legal universe where development can occur without such involvement, effectively creating two classes of forest land with different constitutional protections.

Redefining “Non-Forest Use”: An Administrative Shell Game

One of the more consequential aspects of the amendment is its redefinition of “non-forest use” under Section 2(c). Activities now excluded from this definition include ecotourism facilities, zoos, safaris, and survey or exploration activities. More troubling is the provision that empowers the Central Government to notify any other purpose as falling outside the definition of “non-forest use.”

This redefinition operates as an administrative shell game. By simply declaring that certain activities don’t constitute “non-forest use,” the government can exempt them from the Act’s regulatory framework entirely. The stated intention might be to promote conservation-compatible land uses or align regulatory practice with sector-specific plans, but the practical effect is to create regulatory black holes.

The open-ended delegation of authority to the Central Government is particularly concerning. It effectively permits regulatory exclusion through administrative action, bypassing the procedural and participatory thresholds established by the FRA and PESA. For forest-dwelling communities, such reclassification can restrict access to traditional lands without any corresponding legal remedy or compensation.

Consider how this might work in practice. A mining company seeking to explore mineral deposits in forest land could lobby the government to notify “preliminary geological surveys” as non-forest use. Once notified, such activities would fall entirely outside the forest conservation framework, requiring no clearances, no community consultations, and no environmental safeguards. The administrative convenience is obvious, but the constitutional cost is enormous.

This provision transforms the executive from a regulatory authority bound by law into a quasi-legislative body that can rewrite the scope of forest protection through administrative notifications. Such concentration of power in the executive, particularly in matters affecting constitutionally protected communities, raises serious questions about the separation of powers and democratic governance.

Centralization vs. Constitutional Mandate: The PESA Problem

Section 4 of the amendment authorizes the Central Government to issue directions necessary for implementation. This centralization might be intended to ensure uniformity in forest governance across states and address inconsistencies that have emerged since the Godavarman judgment. However, it directly conflicts with the constitutional architecture governing Scheduled Areas.

Article 244, read with the Fifth Schedule, provides for localized decision-making through institutions like the Gram Sabha. PESA specifically mandates that Gram Sabhas in Scheduled Areas have the power to prevent alienation of land and restore unlawfully alienated land. The Forest Rights Act further establishes Gram Sabhas as the primary institutions for forest governance in tribal areas.

The amendment’s centralization provisions make no mention of these existing decentralized mechanisms, suggesting a structural bypass of constitutional requirements. This isn’t merely a matter of administrative convenience; it represents a fundamental shift in the constitutional balance between central authority and local self-governance in tribal areas.

The Constitution’s framers were acutely aware of the colonial legacy of centralized administration in tribal areas and deliberately created a framework that would prevent such centralization from continuing in independent India. The Fifth Schedule was meant to ensure that tribal communities would not be subject to the same administrative arbitrariness that characterized colonial rule.

By concentrating implementation powers in the Central Government without corresponding safeguards for tribal participation, the amendment effectively recreates the colonial administrative structure that the Constitution sought to dismantle. This represents not just a policy choice but a constitutional regression that undermines decades of democratic progress in tribal areas.

Ground Reality: When Legal Exclusions Become Physical Evictions

The real-world impact of such legal exclusions is already visible across India’s forest landscapes. During the COVID-19 pandemic, when the nation was locked down and civil society oversight was minimal, tribal families were evicted from Chintaguppa Reserve Forest in Telangana under afforestation initiatives without Gram Sabha’s consent. This incident provides a chilling preview of how the amendment’s exemptions might operate in practice.

A comprehensive 2017 study examined compensatory afforestation programs across 52 sites in Telangana, Chhattisgarh, Jharkhand, and Odisha. The study found that these plantations were being established on land that had been legally vested in Gram Sabhas under the Forest Rights Act, but without the required community consent. These aren’t isolated incidents but systematic patterns enabled by legal exclusions and administrative discretion.

The pattern is disturbingly consistent: legal frameworks that appear neutral on paper become tools for community displacement in practice. Administrative authorities interpret exemptions broadly, procedural requirements are treated as optional, and community rights are subordinated to development imperatives. The amendment’s expanded exemptions and increased administrative discretion are likely to accelerate these patterns.

The empirical evidence demonstrates that procedural exclusions in forest laws don’t remain procedural. They translate into physical displacement, loss of livelihood, and cultural destruction for forest-dependent communities. When legal frameworks allow administrators to bypass community consultation, they invariably do so, often justifying such bypassing as serving the “larger public interest.”

What’s at Stake: Beyond Legal Technicalities

For India’s estimated 200 million forest-dependent people, this amendment isn’t about legal technicalities or administrative efficiency. Forests represent habitat, livelihood, cultural identity, and spiritual connection. The amendment’s cumulative effect creates a legal framework where administrative convenience consistently trumps constitutional obligations, executive discretion replaces community consent, and development imperatives override Indigenous rights.

The transformation is particularly troubling because it occurs through definitional changes and procedural modifications rather than explicit policy declarations. This makes it difficult for communities to understand how their rights are being eroded and even more difficult to challenge such erosion in court. By the time the impact becomes visible, the legal framework has already been fundamentally altered.

The amendment also represents a broader shift in how the Indian state approaches the relationship between development and rights. Rather than seeking to balance these competing demands through participatory processes, the amendment resolves the tension by simply excluding affected communities from decision-making altogether. This approach might deliver short-term administrative gains, but it does so at the cost of democratic legitimacy and constitutional integrity.

The Constitutional Question: Can Administrative Efficiency Trump Fundamental Rights?

The 2023 Amendment raises fundamental questions about the relationship between administrative efficiency and constitutional rights. The amendment transforms forest law from a conservation-focused framework to a development-facilitating mechanism, but it does so by systematically avoiding rather than addressing the constitutional requirements for tribal participation in governance.

The Supreme Court’s review in Ashok Kumar Sharma v. Union of India presents a critical opportunity to examine whether administrative efficiency can justify constitutional abdication. The case will likely determine whether the state can achieve its developmental objectives by excluding constitutionally protected communities from decision-making processes that directly affect their lives and livelihoods.

The fundamental question isn’t whether forest governance needs reform or whether India needs to balance conservation with development. Both propositions are generally accepted. The question is whether such reform can constitutionally occur by excluding the very communities that the Constitution seeks to protect, and whether development can legitimately proceed without the consent of those who bear its costs.

The 2023 Amendment may streamline bureaucratic processes and facilitate certain categories of development, but it does so by systematically marginalizing forest-dwelling communities and undermining decades of rights-based forest governance. In a democracy governed by constitutional principles, such exclusion cannot be the price of administrative convenience.

The amendment represents a fundamental choice about what kind of democracy India wants to be. It asks whether the state can achieve its objectives by excluding affected communities from governance or whether genuine development requires genuine participation. The answer to this question will determine not just the future of India’s forests, but the future of India’s constitutional democracy itself.