INDIAN Federalism is constantly battling with its past. Centuries of centralized colonial rule were followed by decades of governments only too willing to assume this legacy in the mistaken belief that it was the only way forward to keep the nation together. A staging post in this long journey was reached in 2014 when a chief minister assumed the reins of the Union with the rallying cry of ‘cooperative federalism’, raising hopes of a new approach and a shift away from the centralized federalism that had long outlived its limited utility. Five years later, the fact that this was one more missed opportunity is increasingly evident.

In this paper we propose to illustrate this cruel conundrum by dealing with one of the most significant areas of functional federalism. It is admittedly also a remarkably intractable area for achieving the coordination and cooperation necessary between levels of government for achieving sustainable development. Environmental protection goals are particularly exacting, and green federalism is an inescapable imperative. Nowhere more so than in the case of protecting forests and maintaining the requisite green cover. We propose to look at this problem as an example of how central initiatives can yield limited results unless states are brought on board in meaningful ways.

In India, forests comprise 21.54 per cent of the total geographic area of the country. Besides being rich reservoirs of flora and fauna, they support millions of people directly and indirectly, for sustenance as well as livelihood. More recently, forests are being recognized and valued for their carbon sequestration potential in mitigating climate change. This makes forests an interesting natural resource to study from a federal perspective.

One of the reasons for this challenge is the legacy of a predominantly centralized and top down approach, accentuated by the need to implement international treaty obligations under the existing division of responsibilities. Under the Constitution, subjects such as land, water, and agriculture are within the exclusive domains of states, while forests, wild animals and birds are shared as concurrent subjects, since the 42nd Amendment. An overview of the relevant legislation would be useful at this stage.

Powers and responsibilities over forests are essentially distributed between two levels, with state governments being responsible for management of forests in accordance with central as well as state forest acts and rules. The primary legislation operative in this field is the Indian Forest Act, 1927 and the Forest Conservation Act, 1980.

 

The Indian Forest Act categorizes all government owned forests on the basis of ownership and control, and the settlement of rights flows accordingly. The Wildlife (Protection) Act, 1972 lays down the framework for different sanctuaries, national parks and other protected areas. Since the act predates the 42nd Amendment, it was introduced in response to a resolution passed by eleven states allowing the Centre to pass a law on wildlife protection. A similar procedure resulted in the enactment of the Water Pollution Act 1974.

Following the transfer of ‘forests’ to the concurrent list, Parliament enacted the Forest (Conservation) Act, 1980 to put restrictions on de-reservation of forests or use of forest land for non-forest purpose by states. It made it mandatory to seek central government approval for using any forest land for non-forest purpose.

The Environment Protection Act (EPA), 1986, an umbrella legislation introduced in the aftermath of the Bhopal gas tragedy, also has relevance for forests on account of its notifications on eco-sensitive zones, environment impact assessment and coastal zone management. Another relevant legislation is the Biological Diversity Act, 2002, which gives effect to the International Convention on Biodiversity. The act creates a three-tier structure, comprising National Biodiversity Authority, State Biodiversity Boards and Biodiversity Management Committees for protection of biological diversity and the intellectual property associated therewith.

 

The regime created by the Indian Forests Acts, Forest Conservation Act and Wildlife Protection Act restricted the rights of communities dependent on forests for habitat and livelihood. Over the years, rights became concessions, and began to be viewed as largesse by the government. With many rights not recorded in forest settlement reports, a large section of forest dependent communities were seen as encroachers. To redress this ‘historical injustice’ faced by forest dwellers, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, (hereafter FRA) recognized tenurial and access rights of communities.

Besides these statutes, several central policy documents have guided the governance of forests. These include National Forest Policy, National Wildlife Action Plan, Green India Mission, etc. The National Forest Policy prescribes one third or 33 per cent of land to be under forests, and goes on to recommend a higher share goal for hilly and mountainous regions, that is, two-thirds of the area.

It would also be useful to look at the institutional actors involved. In most central legislation, states are assigned roles in the governance of forests. However, the space available to the states has gradually been curtailed in practice. Some of this diminishing space is due to the concentration of powers in central institutions.

The Ministry of Environment, Forests and Climate Change is the nodal ministry for matters relating to forests and wildlife. In addition to the forest and wildlife wings at the ministry, other authorities such as the Forest Advisory Committee and the National Board of Wildlife are responsible for issuing approvals and clearances for activities in forests across the country. Further, the Ministry of Tribal Affairs is an important stakeholder in forest governance as it is the nodal ministry for the Forest Rights Act. At the state level, forest departments exist. The Indian Forest Service is one of the three all-India services created at the outset to manage forests across the country.

 

We also need to take note of additional institutions created at the behest of the Supreme Court and serviced by the MoEF. They are also powerful, such as the ad hoc Compensatory Afforestation Management and Planning Authority, which has been the most important agency in allowing (or restricting) states to undertake compensatory afforestation in their own forests. The Environment and Forest Division of the erstwhile Planning Commission played an important role in charting the course of National Forest policy in India, by approving Centrally Sponsored Schemes like the National Afforestation Programme. The NITI Aayog, in its vision document titled ‘Strategy for a New India @ 75’ makes a number of policy proposals and aligns them to the sustainable development goals subscribed to by the Union. However, in this as in many other areas, the Aayog has proved to be a centralizer and has not created more space for the states to play their rightful roles.

Forest governance has witnessed an increase in ‘judicialization’ of the domain since the 1990s. The role of the Supreme Court in the governance of forests is best exemplified by the judicial intervention in T.N. Godavarman Thirumulpad Vs Union of India and Others.¹ The case, filed originally to address illegal timber felling in Nilgiri forests in Tamil Nadu, soon expanded its scope to cover forests in the entire country. By extending its involvement in forest issues, the Supreme Court has assumed a key role in natural resource management. This has had an impact on governance with respect to environment and natural resources. Even with the establishment of the National Green Tribunal, the role of the SC has not diminished.

 

As we have noted, ‘forests’ figured ab initio in the State list, a continuation of colonial policies that treated them as a revenue resource. The rights of local communities were extinguished or converted into concessions, and the emphasis was certainly not on conservation. This resulted in large-scale deforestation across the country, which the central government conveniently attributed to the inability of states to implement forest laws and the lack of uniformity in laws applicable to this domain.² After the 42nd Amendment, the Forest (Conservation) Act, one of the shortest pieces of forest legislation with far-reaching impact, was enacted in 1980. It should be noted that the 42nd Amendment also added ‘protection of wild animals and birds’ as a new entry in the seventh schedule and placed it in the Concurrent list.

The process of centralizing regulation has continued through two main channels. First, by invoking obligations contracted under treaty-making powers to introduce new legislation and executive orders, and subsequently, by adding further regulatory layers in the existing regime

The power of the Union executive extends to rights, authority and jurisdiction exercisable by virtue of any treaty on agreement, provided it does not enter into the domain of the state legislature (Article 73). However, Parliament has the power to override this limitation. In addition to the power to participate in international conferences and implement decisions taken there, Parliament is competent to make laws for implementing any treaty, agreement or convention or any decision made at any international conference (Article 253). Thus, the Constitution of India gives the Centre a carte blanche for legislating upon matters that belong otherwise to the states.

 

The centripetal tendencies appear stronger in the domain of environmental protection than in some other areas due to the increase in the number of international agreements and declarations. The Centre has utilized its power to implement them domestically, by legislating upon matters related to environment and natural resources, as in the cases of the Environment Protection Act, the Air (Prevention and Control of Pollution) Act, and the Biological Diversity Act.

In the case of recent commitments and decisions under the regimes of climate change and sustainable development goals there is a policy shift. Instead of legislation, policy directives issued by the Union government now guide actions of the Centre as well as the states in these areas. The role of the Union is becoming even stronger as climate policy in India is fragmented and scattered, and there is no single specific climate legislation in India.

The main document governing Indian domestic policies on climate change is the National Action Plan on Climate Change (NAPCC). Following this, State Action Plans for Climate Change (SAPCC) were called into existence. Although each state was responsible for preparing its own SAPCC, the process was essentially top down, especially since states were not actively involved in the formulation of the national plan, with which they were obliged to conform.³ The role of the states in designing instruments to meet these goals has also been limited. This is an enduring feature of the centralized legacies of environmental federalism.

 

There are also additional regulatory layers and the accentuation of centralizing trends is visible in several spheres of forest governance. For example, the approval for diversion of forest land or land use change for non-forest activity is granted by state governments based on a two-stage process under the FCA. It is mandatory for the state governments to seek central government approval before de-reservation of forests or allowing use of forest land for non-forest purpose. Earlier, there was scope for negotiation and bargaining between the Centre and the states in this domain. However, the Supreme Court has curtailed this scope, making the implementation of the FCA even more centralized.

The purpose of developing such approval processes is to ensure that states do not compromise upon the basic objective of conservation of forests. There is an underlying and unstated assumption that states, being vulnerable to political and business pressures, will always choose economic activities over conservation, whereas the Centre will take an unbiased approach towards upholding the national objective of forest conservation. However, this assumption has yet to be verified empirically, as priorities of the central government may not necessarily conflate with national priorities. A recent example of this is the forest clearance granted by the central government for coalmines in forest areas of Chhattisgarh.

To take another example, the management and harvesting of forests is dependent on a working plan approved by the Union Ministry of Environment and Forests. Working plans are important tools to ensure scientific management of forests but require technical, human and financial resources for their preparation and implementation. Capacity and accountability are integral components in the successful implementation of policies at all levels.

 

As in many other areas of Union-state relations, inadequate capacity, or the lack thereof, frequently becomes an excuse for lack of devolution. The objective of strengthening the absorptive capacity of subnational and local governments for an optimal sharing of roles and responsibilities thus remains a distant dream. The focus of policy has unfortunately been on strengthening the role of the central government instead of strengthening the capacity of subnational governments, where inadequate.

This is further illustrated by the Biological Diversity Act, which is again skewed in favour of the Centre via the National Biodiversity Authority (NBA). The scheme of the act provides for granting approvals for use of biological resources on condition of ‘fair and equitable sharing of benefit’ (FEBS). While the act clearly prohibits commercial utilization of resources by Indian entities without prior intimation to the state boards, it was silent on their power to determine FEBS. The Centre finally came up with guidelines in 2014, in response to directions from the NGT.

 

The governance of Protected Areas such as National Parks and Wild-life Sanctuaries is another area that deserves attention. Maintaining land under forests undoubtedly creates a burden on the resources of states and local governments. This burden gets heavier when forests are declared Protected Areas, such as National Parks, Sanctuaries and Reserves under the Wildlife Protection Act. The restrictions on access and activities in a protected area are even more stringent and the rights of inhabitants are further curtailed in these habitats. Despite their immense ecological value, they are financial burdens and an equitable solution has to be found. Till assistance is forthcoming, their governance will remain problematic.

The Wildlife Protection Act originally resulted from requests from states, but a series of amendments, notifications and court orders over the years have substantially restricted the powers of states over protected areas. Under the division of powers and competencies, wildlife sanctuaries can be so declared by state governments whereas National Parks can be created by either level of government. However, once declared as such, boundaries of neither a National Park nor a Sanctuary can be altered except on recommendation of the National Board for Wildlife (NBWL).

No removal of any wildlife, including forest produce, is allowed without a permit from a National Park or a wildlife Sanctuary. No livestock grazing is allowed in a National Park. The declaration of Conservation Reserves (e.g., tiger and elephant reserves) also involves relocation of communities residing in and around the forests. In some cases this is mitigated by assistance under Central Sector Schemes, such as Project Tiger or Integrated Development of Wild-life Habitats. The Forest Rights Act 2006 (FRA) sought to address some of these issues.

 

The pre-existence of rights is an important feature of the act, as it recognizes and vests the traditional dwellers with these rights, which they have been deprived of in many cases. It is notable, however, that so far only 44 per cent of the claims under FRA have been awarded or titles distributed.⁴ Further, reports from government as well as civil society have highlighted that most of the titles are given for individual rights and the rate of settlement of community rights is dismal.⁵ The act was challenged in 2008 by certain environmental organizations on grounds of constitutionality but the case is still pending.

The central government has been accused of not defending the FRA adequately in the Supreme Court, and thus abdicating its responsibility.⁶ It is interesting to note that the SC, while examining the constitutional validity of the act, has directed that evictions based on the procedure laid down in the act be carried out.⁷ The outcome of this issue has become a matter of national interest and concern.

 

Compensatory afforestation is another contentious area. For every forest land that is used for non-forest activity, afforestation has to be carried out to compensate for the loss. Under the FCA and pursuant to SC orders, in order to obtain approval for use of any forest land for any non-forest activity, every project proposer has to bear the cost of compensatory afforestation as well as to pay the value of forests lost. It was noted that large sums of money thus collected by governments from agencies on account of this provision were unutilized. The SC asked MoEF to frame a scheme and rules for compensatory afforestation, and then ordered the creation of a Compensatory Afforestation Fund Management and Planning Authority (CAMPA) to receive the funds transferred from state governments and gradually releases them to the states.

A Compensatory Afforestation Act was finally legislated in 2016 to settle competing claims. Rules under the act have also been framed and the money lying unutilized with CAMPA is expected to be released. At the time of passing of the act, there was an assurance that gram sabhas would be consulted for utilizing this money. However, the final rules notified in 2018 fail to mention this and the act has been pushed through as a Money Bill to evade debate.

To conclude, both national and subnational governments have been found wanting in the cause of environment protection, and cooperative multilevel federalism is as elusive as ever. This is evident in all domains of environment – air, water, waste and forests. The last few years have done little to reverse or halt this trend, and in fact there has been a noticeable decline. In 2018, India ranked 177th out of 180 countries in the Yale Environmental Performance Index (EPI), 35 rungs lower since the 2016 ranking. In this area too, there has been a noticeable gap between projections and performance and the promise of cooperative federalism unfulfilled.

 

One of the key elements of India’s Nationally Determined Contributions (NDC) to UNFCCC is the target of creating additional carbon sink of 2.5-3 billion tonne CO2 equivalent through forest and tree cover. Recently, the technical assessment group of UNFCCC has questioned and sought clarification on India’s forest cover data. International decisions, agreements and commitments have often served as stimuli for domestic policy on environment and forests in India. We have seen that the trajectory followed in such cases is signing of agreements without involving states in setting goals or commitments.

The marginalization of states in the decision making process is a regular feature in environmental management and is now being emulated in forests too. This is indicative of a general withering away of consultative institutions involving both the Centre and the states. The NITI Aayog has evolved a practice of functioning in an ivory tower as a central think tank, and other channels of Centre-state consultation such as the Interstate Council have dried up.

In sum, a dominant feature of green federalism in India has been the strengthening of central powers in the regulation of environment and forests across all levels. The Centre has obviously expanded its sphere of legislation, but has not restricted itself to just that. The plethora of central executive decisions in the form of orders, guidelines and circulars has further succeeded in concentrating environment and forest related powers. The operational guidelines for most forest related programmes are only notionally ‘advisory’ in nature.

It must be noted that the courts have also been, to a significant extent, responsible for advancing this trend, as they have shown little faith in the ability of states to manage forests. They have relied on the central MoEF to address most environmental problems they have adjudicated upon. The assumption that states lack capacity to safeguard forests and are vulnerable to vested interests while the Centre is not, is baffling given increasing evidence to the contrary. In the process, an opportunity has been lost of synergizing federalism with forest governance.

 

While there is a strong case for cooperative multilevel federalism in managing forests and the environment, the legislative and institutional foundations remain weak. The risk of national and subnational governments diluting the autonomy of local institutions remains a constant source of concern in forest management, as in many other areas. Business lobbies are naturally inclined to restrict the number of power centres and decision making to a few manageable ones. In this scenario, one of the few institutions left to promote multilevel federalism is the Finance Commission. In recent awards, they have devoted some attention to devolution of resources to local self-government bodies and to rewarding forest cover. It remains to be seen if this trend continues.

 

Footnotes:

1. Writ Petition (Civil) No. 202/1995.

2. Ministry of Agriculture and Irrigation, Report of the National Commission on Agriculture, (Part IX: Forestry). GoI, New Delhi, 1976, p. 365.

3. See Elizabeth Gogoi, India’s State Action Plans on Climate Change: Towards Meaningful Action. Oxford Policy Management, Briefing Note, 2015; Nidhi Srivastava, ‘Climate Change Mitigation Law in India’, in van Calster (ed.), Handbook of Climate Change Mitigation Law. Edward Elgar Publishing, Brussels, 2015; Vijeta Rattani, Shreeshan Venkatesh, Kundan Pandey, et. al., ‘India’s National Action Plan on Climate Change Needs Desperate Repair’, Down to Earth, 18 October 2018.

4. Ministry of Tribal Affairs, Status of Implementation of FRA. Government of India, New Delhi, 29 August 2018. Available at url https://tribal.nic.in/FRA/data/MPR Apr2018.pdf

5. Government of India, Report of National Committee on FRA, Joint Committee of Ministry of Environment and Forests and the Ministry of Tribal Affairs, December 2010; Richard Mahapatra, Kumar Sambhav Shrivastava, Sumana Narayanan, Aparna Pallavi, ‘How Government is Subverting Forest Rights Act’, Down to Earth, 21 March 2018.

6. See Rajshree Chandra, ‘How the FRA is Being Cut Down to Size, and Tribals With It’, The Wire, 23 February 2019, Available at url https://thewire.in/rights/how-the-fra-is-being-cut-down-to-size-and-tribals-with-it (last accessed on 6 April 2019).

7. Supreme Court Order dated 13 February 2019 in Wildlife First and Ors. Vs MOEF & Ors, WP 109/2008.