If you go to a desert, you will hear this mysterious voice: ‘Be wise, protect your forests!’ (Mehmet Murat Ildan)
Sound management of environmental and natural resources is integral to a country’s sustainable development and resilience to climate change. Forest ecosystems provide a wealth of benefits: they are rich in biodiversity and critical to water conservation. They store carbon, improve health and nutrition, provide key resources that contribute to people’s livelihoods, and protect communities from the worst impacts of climate change. Therefore, there is a great necessity for conserving forests.
With the increase in the Indian population, the area under the forest is gradually declining. There was large-scale deforestation, and the forest cover dwindled to less than eighteen percent. As per the latest Indian State of Forest Report (ISFR) 2021, the total forest cover of the country is 713,789 square kilometres, which is 21.71% of the geographical area of the country. The forest cover has increased by 1,540 square kilometres between ISFR 2019 and ISFR 2021 assessments. Originally, the forests were placed on the State List, whereby the States alone could make legislation concerning forests. By 1976, the forests were placed under the Concurrent List, and now the Parliament of India has also been empowered to make legislation on that subject. Despite the major steps taken by the governments, deforestation continued unabated.
In 1996, the Supreme Court issued sweeping directions to oversee the enforcement of Forest Laws across the nation. The courts in India have played a dynamic role in preserving the environment and ecosystem. In a series of cases, the superior courts of India issued various directions and orders to prevent environmental degradation. To understand the role of the courts in this regard, the structure of the judicial system and the constitutional and statutory provisions are to be taken note of. Litigation in India enunciates a web of doctrines and interprets Constitutional law from environmental perspectives. The Court had firmly disallowed non-forest activities and the granting of leases for non-forest activities in forests.
Landmark Cases:
T.N. Godavarman Thirumulpad v. Union of India (W.P 202/1995), 12-12-1996: The most remarkable contribution of the Hon’ble Supreme Court in forest conservation is to define forest. This case has been instrumental in forest conservation in India. Though the Indian Forest Act for the conservation of forests had been passed during the British colonial era in 1865 and amended in 1878 & 1927, the term “forest” was not defined in the acts. The term forest remained undefined until the Hon’ble Supreme Court defined it in the order dated 12.12.1996 in the TN Godavarman Case (WP 202/1995). This case, also known as the “forest case,” is an example of the judiciary overstepping its constitutional mandate. The Court has effectively taken over the day-to-day governance of Indian forests, leading to negative social, ecological, and administrative effects. The Godavarman case represents the single biggest judicial intervention in the administration of forests in the country. This case was initially instituted to address timber felling in the Nilgiri range of Tamil Nadu. Subsequently, when several cases of similar nature were brought before the Court, they were tagged with the Godavarman case.
The Supreme Court, in this case, has innovatively utilized several methods of resolving the conflicts presented before it which have a bearing on the entire country. In its numerous orders, the attempt to define ‘Forest’ and ‘Forest land’, the appointment of various committees and commissions, reliance on experts’ opinions on technical issues beyond the competence of the judiciary, the creative use of Amicus Curiae are several such methods which the Court has utilized in the interest of justice. The case has emerged as the largest judicial forum on all aspects of forest management including the definition of forest, working plans, sawmills, dams, mining, infrastructure projects, use of forest land, and encroachment across the country and is not limited to any specific location or State. In this case, the SC reinterpreted the Forest (Conservation) Act, 1980. In its order dated 12 December 1996, the SC expanded the scope of the term “forest”.
Prior to this order, the word ‘forest’ was limited only to government-declared forests irrespective of whether it had tree cover or not. Likewise, areas with significant tree cover were not regarded as ‘forest’ simply because in government records it was not declared as ‘forest’. Due to this, large areas under good forest cover were outside the purview of the Forest (Conservation) Act, 1980. However, by its order, the SC expanded the term which now included within its scope not only forests as mentioned in government records but all areas that are forests in the dictionary meaning of the term irrespective of the nature of ownership and classification thereof. The case has also resulted in the creation of new structures for example the National Level Committee on Forestry popularly known as the Central Empowered Committee (CEC) which has been created under the Environment Protection Act.
Recently the Supreme Court of India has directed governments to follow the “broad and all-encompassing” definition of forest as laid down in its 1996 judgment in the T N Godavarman case until a consolidated record of all kinds of forests across the country is prepared. A three-judge Bench led by Chief Justice of India (CJI) D Y Chandrachud passed the order on Monday (February 19, 2023) on petitions that challenged the 2023 amendments to the Forest (Conservation) Act, 1980 (FCA) on the ground that the modifications had “substantially diluted” the definition of forest and had reduced the ambit of the Act.
The National Green Tribunal:
The Supreme Court in various judgments (namely, M.C. Mehta v. Union of India, Indian Council for Environmental-Legal Action v. Union of India; A.P. Pollution Control Board v. M.V. Nayudu) has observed that full-fledged Environmental courts are required to be established. Taking a cue from this, the Law Commission in its 186th report recommended the constitution of the National Green Tribunal. The Green tribunals in the country have been established by an Act of Parliament, the “National Green Tribunal Act, 2010” to deal with matters relating to the environment, forests, and wildlife. The Tribunal’s dedicated jurisdiction in environmental matters provides speedy environmental justice and helps reduce the burden of litigation in the higher courts. The National Green Tribunal plays a crucial role in adjudicating environmental cases in India, upholding the principles of justice and fairness.
The Centre for Environmental Law (CEL), W.W.F. vs. Union of India & Ors. 15-04-2023: This case pertains to the issue of the settlement of rights in National Parks and Sanctuaries and certain other issues under the Wildlife (Protection) Act, 1972. The most significant orders in the CEL case were the orders dated 22-8-1997 and the order dated 13-11-2000. The following are excerpts from the order dated 22-8-1997, which have been of immense consequence:
On Settlement: “Even though notification in respect of sanctuaries/national parks has been issued under Section 18/35 in all the States/Union Territories, further proceedings are required under the Act i.e. issue of proclamation under Section 21 and other steps as contemplated have not been taken. The concerned State Governments/Union Territories are directed to issue proclamations under Section 21 in respect of the sanctuaries/national parks within two months and complete the process of determination of rights and acquisition of land or rights as contemplated by the Act within a period of one year…”
On Poaching: “In order to effectively control the growing increase of poaching in the Sanctuaries/National Parks, the Central Government, as well as the Governments of the States/UTs, are directed to ensure that the forest guards in the Sanctuaries/National Parks are provided modern arms, communication facilities viz. wireless sets, and other necessary equipment in that regard. Necessary steps in this regard shall be taken within six months.”
On Denotification: “As regards the denotification of any area which is included in a Sanctuary/national park, it is directed that before placing the proposal before the Legislative Assembly, the concerned State Government shall refer the proposal to the Indian Board for Wildlife for its opinion and the proposal shall be placed for consideration before the Legislative Assembly along with the opinion of the Indian Board for Wildlife.
By this single order, the Supreme Court divested the Central government (with respect to forests) and the State Legislature (with respect to National Parks and Sanctuaries) of all powers of dereservation/denotification. Thus while the Godavarman case prohibited the non-forest use of forest land without Central Government approval, the CEL prohibited dereservation without Supreme Court approval. Both the Godavarman and the Centre for Environmental Law (CEL), WWF vs Union of India and others cases have led to fundamental changes that have a wide impact on forest management. These cases have been heard for over a decade now and are a part of what is termed as “continuing mandamus”, whereby the Courts, rather than passing final judgments, keep on passing orders and directions with a view to monitoring the functioning of the executive. These orders have tremendous impact and implications on forest management and governance.
No forest, National Park, or Sanctuary can be de-reserved without the approval of the Supreme Court.
No non-forest activity is permitted in any National Park or Sanctuary even if prior approval under the Forest (Conservation) Act, 1980 had been obtained.
An interim order in 2000 prohibited the removal of any dead or decaying trees, grasses, driftwood, etc from any area comprising a National Park or Sanctuary. It was also directed that if any order to the contrary had been passed by any State government or other authorities, that order shall be stayed.
New authorities, committees, and agencies have been set up such as the Central Empowered Committee (CEC) and the Compensatory Afforestation Management and Planning Agency.
Kamaruddin N. Sheikh v. State of Maharashtra, 11-04-1996: The petitioner was in possession of land that was declared as a private forest by an order passed by the Sub-Divisional Officer, Bombay. He contended to protect his property interests. He filed an appeal before the Maharashtra Revenue Tribunal. That appeal was dismissed by the Tribunal. He received a letter later on from the Divisional Forest Officer, Borivali, directing him to stop quarrying operations and to pay royalty to the Forest Department. The Maharashtra Revenue Tribunal, after remand, allowed the appeal and arrived at the conclusion that the land in question was not forest land. It was held by the High Court that the land was a private forest that vests in the State Government under the Maharashtra Private Forests (Acquisition) Act, 1975.
Sri. Ram Saha v. State of West Bengal, 14-10-2004: In this petition, the contention of the petitioner was that he should not be prevented from felling down some of the existing trees standing on his ralyati land which has been recorded in the records of right under the classification Bagan (garden). He contended that at no point in time was the said land a forest of any nature and the same has never been converted from an earlier forest. The concerned trees intended to be felled are unproductive mango trees and they are very old trees that have lost their fruit-bearing ability. The petitioner has been incurring heavy financial loss every year and the trees have been affected by parasites and other uncontrollable worms so much so that any further standing of the trees would jeopardize the fruit-bearing ability of the other adjacent trees. They are urgently needed to be uprooted and accordingly, the petitioner has decided to cut down the said affected unproductive old trees of the garden for the renovation of the garden by planting saplings therein.
The Supreme Court directed that each State Government should constitute within one month an Expert Committee to identify areas that are forests. Irrespective of whether they are so notified, recognized, or classified under any law, and irrespective of the ownership of the land of such forest, identify areas that were earlier forests but stand degraded, denuded, or cleared, and also identify areas covered by plantation trees belonging to the Government and those belonging to private persons. The SC also held that the Forest Conservation Act, 1980, was enacted to check deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith must apply to all forests irrespective of the nature of ownership or classification thereof.
Bhagwan Bhoi v. State of Orissa, 10-07-2002: In this case, the land was shown as forest and in possession of the Forest Department. The only question was whether the petitioner could carry on a sawmill on the forest land. It was stated that since the petitioner was not granted a license for a sawmill after 1997, it could not be renewed. The Supreme Court, while considering the question about the object and purpose of the enactment of the Forest (Conservation) Act, 1980, issued some guidelines which are as follows:
“In view of the meaning of the word “forest” in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any “forest”. In accordance with Section 2 of the Act, all ongoing activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is therefore clear that the running of sawmills of any kind, including veneer or plywood mills, and mining of any mineral, are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie a violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure the total cessation of all such activities forthwith.
Conclusion:
India’s most unique protection for the environment and forests is the Indian Constitution. It contains environmental policy guidance for parliament, as well as a guarantee of life that the Indian Supreme Court interprets as providing a right to a protected environment. Unlike other common law jurisdictions, India’s most basic legal instrument is used to directly address the question of forest protection. The judiciary has contributed to the protection and conservation of the forest by propounding the doctrine of Public trust doctrine and sustainable development. Various laws have been enacted for the purpose of the protection and conservation of the forests, however, various judicial pronouncements have given life to all such laws. By giving case laws such as Godavarman, the judiciary has played the role of activist in the protection and conservation of the forest. The court has bridged the gap between the lacunas in the implementation of the laws and the laws themselves. Further, from the analysis of various case laws cited above, it can be stated that the judiciary has tried to balance economic development and protection of the environment. The judiciary has also enacted various laws by giving pronouncements in relation to the question of the protection of the forest. This makes it clear that judges do make law.
All case laws cited above clearly indicate that the Apex Court of India has played a unique role in the protection and conservation of forests in India. The need of the hour is that we have to implement the forest laws very strictly and all the organs of the administration must work in a normative approach to get a proper outcome from the forest laws because laws are useless without the element of implementation and remedies.
The writer is a former Attorney at Law, J&K High Court, presently a Government Law Officer and pursuing an MA in Political Science from IGNOU. He can be reached at kh********@***oo.com