ABSTRACT
India traces a wealth of forest lands since time immemorial. Indian forests have undergone significant changes with the emergence of newer stakeholder interests with each passing era, which have shaped not its floral and faunal compositions but also the lives of the communities that remain so intrinsically interwoven with these forest lands. Attempts have been made under the umbrella of ‘forest conservation’ by various governments that have come to power. It, however, remains to be understood whether these attempts have benefitted the forests and its dwellers, and to what extent have these benefits been realized or whether they remain a torchbearer for the majority interest guised as ‘conservation’. The aim of this paper is to analyze the Forest Conservation Amendment Act, 2023 through the lens of critical legal studies. Attempting to juxtapose the Forest Conservation Act 19880 and its 2023 amendment in India along through the components of critical legal studies, such as ‘deconstruction’ and ‘genealogy’ as Defined by Robert Gordon whilst contemplating on possible remedies to the issues that plague these acts through Roberto Mangabeira Unger’s work ‘What Should Legal Analysis Become?’.
The earliest iteration of forest conservation act in India was the Indian Forest Act, 1865. This manifested into the Indian Forest of 1927.[1] The act was imbued with colonial interests as its main aim remained to profit from timber production from these forests. It gave broad regulatory powers to the state in the name of forest conservation; however, the said power was mainly maneuvered to gather revenue from timber and other forest produce. There was a lack of knowledge regarding the implication of rampant forest degradation amongst the farmers and the local communities and it was not until the forty-second constitutional amendment in 1976 that the need for forest conservation was realized and article 48A was added to the Directive Principles of State policies[2] and Article 51A was added to the fundamental duties.[3] The President of India enforced the Forest Conservation Ordinance in 1980, which was repealed by the Section 5 of the Forest Conservation Act. The Forest Conservation Act (FCA)[4] was responsible for demarcating forest lands for forest and non-forest usage. It underwent minor amendments by the Ministry of environment and climate change in 2011, and it was significantly amended by the Forest Conservation (Amendment) Act of 2023 (FCAA),[5] which became operational as per December 1st, 2023. This paper will mainly focus on the 2023 amendment.
Critical legal studies began as a movement amongst legal scholars in the 1970s in the wake of the civil rights movement and the Vietnam war.[6] However, this paper would mainly focus on the subgroup of critical legal theory which is deeply rooted with its ties to American legal realism, propounding that the law in a society remains undoubtedly intertwined with the social realities of the society. Such laws then go on to create a power dynamic, benefitting those who make the laws, not necessarily those who the laws are made for.
[1] Forest Conservation Act, 1927.
[2]Indian Const. art. 48A, added by forty second constitutional amendment 1976.
[3]See Id at art. 51A.
[4] Forest Conservation Act, 1980.
[5] Forest Conservation Amendment Act, 2023
[6] Critical Legal Theory, Legal Information institute, https://www.law.cornell.edu/wex/critical_legal_theory#:~:text=Critical%20legal%20studies%20(CLS)%20is,those%20who%20create%20the%20law, (accessed on 4th April 2024)