Legal framework for forest management and timber trade of India

Forest governance

In India the national (central) and state governments are jointly responsible for the sustainable management of the forest resources. In a practical sense, the state forest departments have a double role: they act as the custodians of the public forest resources and in capacity of forest authorities manage the forest resources on the basis of forest management plans (known as Working Plans). Often the state forest departments also perform a commercial function, becoming involved in production, processing and trade through Forest Development Corporations (FDCs) which have been set up for marketing the forest products.

International timber trade is regulated by the Export Import (EXIM) policy of India, which is a five-year policy directive under the central government’s Foreign Trade (Development and Regulation) Act 1992 (FTDR). The Authority under the FTDR act is the Director General of Foreign Trade (DGFT) under the Ministry of Commerce.

The most relevant ministries and agencies for forest governance are:

• Ministry of Environment, Forest and Climate Change (MoEF&CC):Nodal agency in India for the planning, promotion, coordination and overseeing the implementation of India's environmental and forestry policies and programmes.
• Ministry of Agriculture Cooperation and Farmers Welfare:Apex agency for formulation and administration of rules, regulations, laws, etc. dealing with matters affecting the improvement and development of agriculture resources (including agroforestry) in the country.
• Department of Commerce, Ministry of Commerce and Industry : A government body for formulating, implementing and monitoring the Forest Trade Policy (FTP) which provides basic framework of policy and strategy to be followed for promoting exports and trade
• Department of Land Resources, Ministry of Rural Development:A government body for formulating an efficient land use policy, transparent Land Records Management System (LRMS).
• Ministry of Tribal Affairs:This central ministry is responsible for implementing Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, which is a landmark law related to recognition of forest related tenurial and usage rights of traditional communities dependent on forests.
• State Forest Departments (SFDs): The SFDs are the custodians of the state forests and responsible for its management and protection, including wildlife.
• State Forest Development Corporations:Legally registered entities under the Companies Act of India, or any such similar Act, with a mandate to work on commercial aspects of forests, raising industrial plantations of species of commercial importance such as teak and eucalyptus, enhancement of forest productivity, restoration of productivity of degraded forest areas, harvesting and trade to timber and non-timber forest products (NTFPs), facilitating establishment of forest based industries, providing support to farmers for production and marketing of the forest produce and to provide consultancy in raising bio-aesthetic plantations. The functioning of these corporations differs from state to state.
• Village Panchayat: A gram panchayat (village council) is the grassroots-level formalised local self-governance system in India at the village or small-town level and has a ‘sarpanch’ as its elected head.
• Wildlife Crime Control Bureau: Statutory multi-disciplinary body established by the functioning under the MoEF&CC, to combat organized wildlife crime in the country. It also assists and advises the customs authorities in inspection of the consignments of endangered flora & fauna as per the provisions of WildLife (Protection) Act of 1972, CITES and EXIM Policy governing such an item.
• National Green Tribunal: Established for effective and expeditious disposal of cases related to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to the environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.
• Supreme Court Monitoring Committee: A special committee formulated by the direction of judges on matters they feel need technical expertise and strict monitoring through legal action. They perform constitutional and administrative duties for the court.

Legal rights to harvest

Major sources of timber in India are:

1. Forest Development Corporations (FDCs): FDCs are state owned legally registered entities. The FDC harvest the forest areas through a long-term MoU with State Forest Department.
2. State Forest Divisions (SFD): A forest Division is a territorially well-defined administrative unit of the state forest departments and the government owned forests. The divisions manage the forests through approved Working Plans*. The commercial harvesting of the trees/forest products is generally entrusted to state FDCs.
3. Individual Tree Owners: Growing trees on farmlands has been an integral part of the traditional agriculture practices in India. The farm owners may be growing the trees as block plantations, windbreaks and shelterbelts or as bund/boundary planting.
4. Private Plantations: Timber may also be grown on private plantations by individuals/corporate entities either alone or as an intercrop. There are practices of cultivation of tree crops as intercrops in coffee and tea fields etc.

Working Plans - The Working Plan is a document that details the management of forests of a territorial division in all aspects such as forest protection and conservation, wildlife management and resource harvest etc. Each SFD maintains the forest as per the working plan approved by the Govt. Of India. The working plan is revised/updated periodically every 10 years.

The legal rights to harvesting follows different procedures for the forest area harvesting and private landowners/plantations harvesting. In the government owned forests, state forest department does the harvesting through FDCs or contractors (outsource) and issues harvest permits for the same. The harvesting is done in compliance or as per the permissible limits mentioned in the working plans (in compliance with existing laws)

Note: Green felling is banned in India. Only the dead and decaying, matured plants are removed from the forests. Such felling is prescribed in the working plan and forest department has the right for felling or harvesting activities.

The harvesting rights considers the following components:

1. Land tenure and use rights

The legality for the government land tenure is available through government notifications. The information related to that can be verified from the forest departments and depots. In some cases, the land and use right may be shared between different entities (department and locals) and the same is recorded in the form of declaration/Govt order and further included in the Management plan (e.g. unclassed forests).

The land ownership for the private areas can be verified through village panchayat head or revenue officer. The land tenure and use rights evidence is a necessity for obtaining the harvesting permits. In India, each state has its own separate laws relating to land usage rights and ownership of agricultural lands.

The concession rights of the private owned companies in the government owned forest lands has been discontinued, following FCA 1980 & supreme court orders on Godavarman vs Union of India case.

2. Management and harvesting planning

There are several national and state level policies; however, as the Constitution of India empowered Indian state governments to enact rules regulating various aspects of forest management, laws and rules differ from state to state. Different states have different restrictions on felling of wood/timber raised on private land, based upon area, intended use and species.

All forests are managed under the prescriptions of a Working Plan prepared for a period of 10 years, according to the National Working Plan Code (2014) on the basis of principles of sustainable forest management and recognized practices.

No forest management practices can be carried out in government forests without the approved Working Plan (as per supreme court) and no harvesting can be done in any forest area without an approved Working Plan. The harvest is carried out either by government forest department or corporation or contractors appointed by the department as per the working plan.

The National Working Plan Code defines the content of a Working Plan and the topics that should be covered, such as objectives, organizational structure, preparation of maps, monitoring and reporting, harvesting and exploitation up to compartment level. The MoEFCC is the authority that approves the Working Plan of a state forest department. The supreme court committee oversees the implementation of the working plan prescriptions.

Special attention is paid to forest dependent communities concerns. Joint Forest Management (JFM) is such a programme, wherein responsibilities, authority and usufructs are shared between the village community/ forest user group and the forest department. At present around 24.6 mha of forests are managed under JFM model in India. (Source:  Joint Forest Management, ENVIS RP on Forestry and Forest Related Livelihoods)

No working plans are applicable/required for the private plantations for harvesting and maintenance.

3. Harvest permits

Government owned forests (Reserved Forests, Protected Forests etc): The process and criteria of issuing harvest permits is specified in respective state harvesting rules and the rules are applied by respective SFDs.

Private Plantations: Harvesting permission for defined or non-exempted species need a harvest permit granted by Government forest officers (Divisional Forest Officers or Deputy Conservators of Forests) or local elected representatives (panchayat)  for common lands.

Taxes and fees

Under the IFA 1927 (Chapter VII), there are existing state harvesting and transit rules for collection of royalties for specified species. Harvesting rules are state specific. State Forest Department is the legal authority regarding collection of royalties and transit fees as specified in the regulations.

Mandi samities (local market committees) collect fees from farmers and private plantations for the species obtained from the agricultural land (through agroforestry, farm forestry, etc.), as per State APMC Act (Agriculture Produce Market Committee).

Goods and Service Tax (GST) is an indirect tax levied in India on the supply of goods and services. GST is levied at every step in the production process, but is refunded to all parties in the chain of production other than the final consumer. GST is levied on all transactions such as sale, transfer, purchase, barter, lease, or import of goods and/or services. The Goods and Services Tax (Compensation To States) Act, 2017 can be found here.

GST is administered by both the Central and State Governments. Transactions made within a single state are levied with Central GST (CGST) by the Central Government and State GST (SGST) by the State governments. For inter-state transactions and imported goods or services, an Integrated GST (IGST) is levied by the Central Government. All businesses are assigned a unique number, Goods and Services Tax Identification Number (GSTIN). The GST rates can be found here.

Government forest: The income from timber sale from government forests is considered as government revenue and no income tax is levied on such revenue.

Private forest: Income Tax Act 1961, Section 1 to 10. Not applicable in case of farm products i.e. income from timber sales in an agroforestry system.

Timber harvesting activities

Government forest:
Timber is harvested from government managed forests as per rules and conditions laid out in NWPC 2014 as permitted by SFD authorities.

Private forest:
No legally binding harvesting code is applicable

EIA requirements: NA for forest activities
NWPC 2014 includes best practices for sustainable management of forests and biodiversity in India. However, it  is not a legislation. The code is  implemented as part of preparation, development, implementation and modifications in the Working Plan. Such activities are not applicable to private plantations.

Protected sites
The Wildlife (Protection) Act 1972, states that hunting or collecting wild animals and plants in areas protected by the State requires approval from the Forestry Administration. According to the NWPC, SFDs must implement a Management Plan for Protected areas and a working plan/scheme, also adhering to the Forest (Conservation) Act of 1980, the Wildlife (Protection) Act of 1972.

Wildlife clearance from National Board for Wildlife (NBWL) and/or its Standing Committee has to be obtained if the harvesting area falls within Protected Areas and is as per the management plan. Clearance has to be obtained from the Supreme Court of India, if harvesting areas are in the National Parks and Wildlife Sanctuaries.  For some selected species, written permission in the form of a harvesting permit and transit pass are  required for harvesting and transportation of designated species (even for private lands).

Health, Safety and Employment
There are laws (Plantation Labor Act, 1951) adopted by the state governments and private owned industrial plantations for ensuring the health and safety of the workers. Individual farmers/farm lands are outside the scope of such acts.

Further activities pertaining to the legal requirements for the personnel involved in harvesting activities are implemented by the state government (labour department) and the Panchayati Raj department as per the applicable laws. The latest notification regarding the minimum wages, state specific plantation labour act is used and implemented.

Minimum Wages Act  1948 defines the minimum wage in the country. It is defined separately for rural and urban areas on the basis of cost of living, which varies from state to state. Mahatma Gandhi National Rural Employment Guarantee Act ensures that labourers in villages receive at least the minimum wage and work for a minimum number of days in a year.  Harvesting having a specialized nature of work provides labourers with a higher wage than the minimum wage.

*Code of Wages 2019 bill ( a consolidation of the four labour laws including the Minimum Wages Act, Payment of Wages Act, Payment of Bonus Act and Equal Remuneration Act ) has been passed in 2019 and will be enforce on date as the Central Government may, by notification in the Official Gazette appoint.

The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, outlines the laws against engagement of children as labour. Bonded Labor System (Abolition) Act, 1976 is implemented to ensure people are not employed under duress.

Third parties’ rights

Forest Department notifications regarding JFM Committees, land use titles issued to forest dwellers by the Government under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, , has recognised and granted traditional rights to forest dwellers and local communities by government in government owned forests.

The rights of private plantations and agroforestry produce rests with the land owners.

Free, prior and Informed Consent - Government forest:

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, , incorporates suitable mechanisms to address the affected communities and families regarding any land acquisition measures for forestry activities or displacement of communities being declared as Wildlife Sanctuaries or National Parks. Indian Forest Act, 1927 and Wildlife Protection Act, 1972, covers declaration, establishment, expansion etc. of any Reserved Forests or Protected Area has to be notified and provisions regarding declaration, to be made available to potentially affected communities but does not require explicit consent from the affected community or persons to proceed with the proposed forest management activities under the aforementioned laws.

Extraction of forest produce is regulated in protected areas.The rights and provisions for local communities have been addressed in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act , under which written consent is required from local elected government (panchayats or gram sabhas), There are variations from case to case; but free, prior and informed consent has been increasingly acknowledged in India and awareness of stakeholders is steadily increasing.

Free, prior and Informed Consent - Private plantations/cultivations:

The land owners themselves are owners of the resource/produce and undertake   management activities on their own.

Trade and transport

Specific forest products are classified depending on whether they are restricted, regulated or prohibited. All species exported and imported are authorized by the Directorate General of Foreign Trade (DGFT) as per the EXIM policy. Importing or exporting entities must have a valid license/permit issued by DGFT. Entities must follow all transit rules for timber at international borders as enacted by the central government under section 41A of Indian Forest Act 1927, as well as State Transit Rules.

• State Forest Department Transit Fee Receipt, Transit pass are documents issued universally in India by SFDs for transit of wood from one place to another, detailing the classification and quantity of wood being transported the origin and destination of wood, vehicle details, route of transport, dispatcher and recipient. Without pass, timber consignments are deemed illegal unless otherwise mentioned in the State transit rules.
• For specific species grown on agricultural and privately-owned lands, requirement for a transit pass has been waived (only for movement within a state). In such cases, receipt of taxes paid to the Mandi Samiti, local APMC (Agriculture Produce Marketing Committee) is considered a legal document of transit.

Saw mill companies must be legally registered with the forest department and hold a valid license according to applicable laws and regulations. Reference to the applicable Acts: Industries (Development and Regulation) Act, 1951, the Factories Act, 1948, the Payment of Gratuity Act, 1972, the Payment of Bonus Act, 1965, Maternity Benefit Act, 1961, the Employees Provident Funds and Miscellaneous Provisions Act, 1952, the Air (Prevention and Control of Pollution) Act, 1981 , the Water (Prevention and Control of Pollution) Act, 1974, the State Land Revenue Act, the State Tenancy Act, and the Town and Country Planning Act, Section 41 of the Indian Forest Act and the State’s Forest Act and Saw Mill Establishment Rules.

Updated Export Policy Schedule-2 (ITC HS 2018), (Chapters 44,47 ) makes mention of all goods banned from export or restricted for export which require licenses. All materials not mentioned in the Schedule can be exported freely without any license.

(Appendix 2) specifies the regulations related to export of CITES species. Similarly Import Policy Schedule I specifies the species related to import of CITES species.

Import Policy Schedule I (ITC HS 2017), if not mentioned in the Import Schedule, the material can be imported without any license.

International Standards for Phyto Sanitary Measures (IPSM), solid wood imports and other such imports are governed by it. Export inspection and phytosanitary certification of plants and plant products is carried out in accordance with Article IV of International Plant Protection Convention (IPPC) to meet the legal obligations of the member countries. This issue is handled by the Directorate of Plant Protection Quarantine & Storage.