Presuming that forests are the landscapes that most need to be protected by development, the TSR Subramanian committee reviewing environmental laws has suggested that the government to notify forests with 70% or more canopy cover and protected areas as "no-go" areas for clearances, to define forests and to streamline the process for forest clearances.

What the committee does not mention is that according to the latest Forest Survey of India, only 11% of forests in India are classified as very dense and they cover only 2.54% of India’s total geographic area.

If the ministry fails to notify other no-go areas, moderately dense or open forests that cover around 93% of India’s land could potentially be open to polluting projects

“We are not saying that only this area should be no-go,” said Subramanian. “The government can identify spot areas in Western Ghats, something in Himalayas, or identify elephant corridors and whatever they like. They can add on to this list, but this at least must be no-go.”

However, the report leaves it open to the ministry to define such areas, and only if it wants to.

The ministry has been attempting to define violate and inviolate areas for several years now with various notifications and circulars, but has never managed to concretise any suggestion. The high-level committee report’s suggestion might then be the first such instance if accepted.

But it is not even as if canopy cover is the most important factor when it comes to defining the ecological value of a forest.

The ministry, which has been unable to define a forest for decades now, is littered with office memorandums, reports and circulars that take different views on the subject, said Sudiep Shrivastava, a lawyer who has followed the topic closely for years. He pointed to an ungazetted report filed in July 2012 that defines six parameters by which an area would be declared inviolate for further clearances, but defines them by their ecological and social value as well as forest cover.

"If TSR reports gets accepted, this full exercise of trying to define forests in other ways will get over," Shrivastava said. "This will ensure that virtually all clearances will be accepted."

This sensitivity to nuance in forest use is not reflected in the Subramanian report.

“They could have defined no-go areas as those that are ecologically important, instead of just 70% canopy cover,” said Pushp Jain, director of the EIA Resource and Response Centre in New Delhi. “As a matter of fact, desert areas may have a canopy cover of just 10% but they are ecologically important and have great species richness. They are prone to exploitation.”

Replacing trees

Another convoluted issue in the report is that of compensatory afforestation.

When projects are planned in areas with forest cover, they have to afforest an equivalent area to account for the loss of tree cover to the country. The Subramanian committee recommends that the ratio of compensatory afforestation be increased from 1:1 to 2:1, where two trees will be planted for every one felled. These trees will have to be replanted in areas contiguous to existing forests, as recommended by the forest department.

At present, when forest land is diverted for an industrial project, the company pays the state forest department a sum that is determined by the net present value of each tree for compensatory afforestation. There is, however, no mechanism to check what these funds are being used for. A Down to Earth article on compensatory afforestation in Madhya Pradesh pointed out that a large portion of the state’s forest department funds had been allocated to firearms, jeeps and wireless equipment.

“Let’s suppose they enhance compensatory afforestation area,” said Shankar Gopalakrishnan, an environmental activist with the Campaign for Survival and Dignity. “One, states are already struggling to find land. Some states have objected. Second is that most compensatory afforestation doesn’t happen. If you look at the guidelines of CAMPA [Compensatory Afforestation Fund Management and. Planning Authority], they said the same thing about compensatory afforestation needing to be 'ecologically sensitive'. It is not clear if this has made any difference. ”

Forest rights

The Subramanian Committee also seeks to amend one part of the Act, which was not within its brief. The report recommends that for linear projects that benefit all people including forest dwellers, “the provisions of [Forest Rights] Act be amended to dispense the obligation of approval of gram sabha.”

“We found a large number of highways half constructed… fibre optic lines could not be laid, gas pipelines – many covering 200 villages and only two villages stopped entire process. It is a colossal national waste,” Subramanian said. “We have only suggested that only – only only – for linear programmes should clearance be suspended.”

The committee feels that projects need not wait for certifications under the Forest Rights Act from various government authorities. It suggests that projects can be given first stage clearance and the relevant verifications be done after this in-principle approval.

“If you [consult gram sabhas] before a project is approved, what you are trying to do is that every single forest dweller on any forest land is getting his or her rights recognized,” said Meenal Tatpati of Kalpavriksh, an environment non-profit organisation. “If you add such caveats [of approval of gram sabhas], rights will be recognised only on bits and pieces of forest land”.

Even as the Subramanian committee was making these tweaks to forest regulations, the environment ministry issued its own orders diluting the rights of forests dwellers, directly clashing with the Ministry of Tribal Affairs.

In a letter dated October 28, 2014 the ministry said that forest rights need not be recognised in areas notified as forests within 75 years of December 13, 2005, and which have no recorded populations of scheduled tribes.

Under this provision a district collector has merely to check if the land in question was notified as a forest in 1930 and certify that there are no tribal people living in the area, thus bypassing the requirement of gram sabha approval mandated by the Forest Rights Act, which falls under the mandate of the tribal affairs ministry.

“You have to examine their [forest dwellers’] claim and then decide if they are eligible or not. Unless you received claims from that area how will you know whether people are eligible or not?” asked Tatpati.

Rule by memorandum

At the centre of this is a morass of conflicting circulars, office memorandums and reports that the committee attempts to cut through and consolidate.

“There are many memorandums and many are contradictory,” said Subramanian. “There have been notifications issued which were not gazetted. All over India, lawyers have enjoyed themselves with this. One lawyer will quote one memorandum, another will quote another.”

The committee recommends consolidating all office memorandums into one volume that will be issued each year.

“We are saying that unless there is some genuine need you should not make memorandums,” said Subramanian. “We are not doing away with the power of the government, but we are recommending that they restrain that power.”

If the Subramanian committee has its way and office memorandums are consolidated, at least one problem both bureaucrats and ministry watchdogs face will be resolved. Other issues, particularly those related to forests, might not lend themselves as easily to such broad-sweeping conclusions.

“It is like exploring a city,” said Subramanian. “You can explore it for the next 100 years or for just two days and you will never know everything about it. We looked for the highlights and the basic issues. I am not sure the marginal advantage of spending three or six months more would have added much value. I don’t think any of our major conclusions would have changed.”

This is the last of a three-part series on the overhaul of environment regulation suggested by a high-level committee to the Ministry of Environment, Forest and Climate Change. You can read the other parts here