Forest Conservation

FOREST CONSERVATION CASE AND ITS IMPORTANCE IN FOREST PROTECTION (Project Report)

Submitted by:

Submitted To:

Name- Shashank Suresh Roll no.: 144

Ms. Stuti Binay Nanda Faculty : Environment Law

Sec: B Semester- IV

HidayatullaH NatioNal law uNiversity, Post uParwara, Naya raiPur – 492002 (CHattisgarH)

Acknowledgements I, Shashank Suresh takes genuine pride and pleasure in presenting this project with the grace of the almighty to Ms. Stuti Binay Nanda. I would first of all like to express my most sincere gratitude to Ms. Stuti Binay Nanda for his paramount support and encouragement. I am thankful for being given the honour of making this project on “Forest Conservation Case and its Importance in Forest Protection.” I am thankful to the library staff and committee members for all the conveniences which played a major role in the completion of this project. I would like to thank my family for their perpetual support and encouragement. I would also like to thank my friends for their support and advice. Last but the most important, I would like to thank God for keeping me in good health and senses to complete this project. I am thankful to my seniors for all their boundless support, encouragement and valuable advice whenever needed. I present this project with a humble heart.

Shashank Suresh Sem-IV, Roll no.-144

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TABLE OF CONTENTS

1. Acknowledgements…………………………………………………………2 2. Introduction……………………………………………………………..….4 4.1 Abstract……………………………………………………….……..…5 4.2 Objective…………………………………………………….……..…..5 4.3 Applicable Laws………………………………………….……………5 4.4 ResearchMethodology……………………………………….……..…5 5 . Organization of study 5.1) Forest Conservation and Introduction of Judicial Activism…....….6 5.2) Forest Conservation Act 1980 and Judiciary………………...........7-8 5.3) T.N. Godavarman Series of Cases……………………………....…9-11 5.4) Analysis………………………...……………………………………12-14 6. Conclusion………………………………………………..……….…….……15 7. References……………………………………………………...........................16

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Introduction The Indian Forest Act of 1927 does not define forests, though forest areas have been legally notified under it as reserve forest, protected forest or village forest. The watershed Forest Conservation Act of 1980 made central government approval mandatory before diverting forestland for non-forest use. Watershed case The debate over defining a forest came to the fore in 1996 with the Supreme Court ruling in the case of TN Godavarman Thirumulpad vs Union of India1. The case began as a petition to stop illegal felling of timber in the Nilgiri hills but expanded into an overhaul of the Indian forest policy. The Supreme Court said that forests would be defined by their “dictionary meaning”, without elaborating what this meaning was. It also assumed responsibility for implementing the Forest Conservation Act with this new definition. The court ordered all non-forest activity like sawmills and mining to be suspended in forest areas and stopped felling of trees. It kept the Godavarman case open using the device of a “continuing mandamus” and heard hundreds of matters related to the implementation of the Forest Conservation Act. The ruling excluded the lower courts from admitting such application, leaving the Supreme Court the sole administrator of the law when it came to forest matters. This was until the creation of the National Green Tribunal in 2010 to “dispose of cases relating to environmental protection and conservation of forests and other natural resources”. While the apex court has been both commended for taking such dramatic action to stop indiscriminate destruction of forests and criticised for overstepping its boundaries, the Godavarman case has gone on to show how essential it is to define forests.2 In its 1996 ruling, the court had asked states to identify, demarcate and notify forest areas. Even 18 years later, many states have failed to do so. While hearing a case in 2014 of whether a hotmix plant should be allowed to operate in Manda Khal village in Uttarakhand, the National Green Tribunal noted the state government’s failure to chalk out its deemed forests.

1 2

1997(2)SCC267 https://scroll.in/article/726461/a-short-history-of-indias-two-decade-struggle-to-define-what-a-forest-actually-i

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Abstract Case concerning the general question about conservation, preservation and protection of forests and ecology, with the particular question being that when forest land is used for non forest purposes, what measures are required to be taken to compensate for loss of forest land and to compensate effect on the ecology. The Supreme Court (3 December 1997) placed reliance on Article 21 of the Constitution of India but also on the Directive Principles in India in Article 48A and the fundamental duty in Article 51A (g) of every citizen in the Constitution of India

Objective 

Explain the genesis and development of Supreme Courts role in forest governance



To study T.N. Godavarman series of cases and their impact on the forest protection

Applicable laws 

Part IV of the Constitution of India



Environment Protection Acr, 1986



Constitution of India



Forest Act, 1927



Forest (Conservation )Act, 1980

Research Methodology This paper is made through Descriptive Research Methodology. Help of various resources has been taken to make the project which is being mentioned below: 1. Statues 2. Books 3. Research paper 4. Dictionary 5. Case laws 6. Online articles 5|Page

Forest Conservation and Introduction of Judicial Activism Forests are a major natural resource and are also recognised as a colourful expressions of nature. They are also recognised as guardians and protectors of the wildlife of the country. Forests are valued not only valued for various kinds of flora anad fauna but also for materials, watersheds , cradles of rivers, checks on desertification, as a important recreational source and for scenic beauty. Rig Veda mentions various attributes of God in trees. Plants were regarded as possessing divine qualities with reference to their healing powers. Moreover , plants were deified as God Varuna , one of the most popular deities of Vedic times. In the Matsya Purana, there is a verse: Dashkoop Samavaethi Dashvapi Samshadah Dashhed Samah putra dash putra Samo drama3 (one pond is equal to 10 wells, one son is equal to 10 ponds and one tree is equal to 10 sons )During the last century, forests have been cut at a rate unequalled in the world and they are disappearing at an alarming rate. In India, it has been claimed that we have got vegetation cover over 19% of the total land area as against the accepted ideal of 33 % in India and over 40 % internationally .Thus vegetation cover is much less than required.. In 1995, T.N. Godavarman Thirumulpad filed a writ petition4 with the Supreme Court of India to protect the Nilgiris forest land from deforestation by illegal timber operations. The Supreme Court expanded the Godavarman case from a matter of ceasing illegal operations in one forest into a reformation of the entire country’s forest policy. In its first order on the Godavarman case, the Court suspended tree felling across the entire country, paralyzing wood-based industries. Despite a series of subsequent orders with far-reaching implications, the case is still pending in the Supreme Court. In the process of hearing over 800 interlocutory applications since 1996, the Court has assumed the roles of policymaker, administrator of policy, and interpreter of law.The Supreme Court’s vast assumption of powers concerning environmental issues has no precedence from past cases, neither in India nor in other developing countries. The Godavarman case opened a Pandora’s box that continues to affect industries and forest dwellers across the country. 3 4

S.C. Shastri ; Environment Law, Fifteenth Edn. TN Godavarman Thirumulpad vs Union of India 1997(2)SCC267

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Forest (Conservation)Act, 1980 (FCA) and Judiciary As mentioned above, the Central Government got the powers to make laws on forests in 1976. Following this, the Union Government passed the Forest (Conservation) Act, 1980" (FCA) which is a landmark in the history of the protection of forests. Mainly, this Act was passed to remove the difficulties of the Forest Act, 1927 and to conserve the vegetation cover of the nation. This historical Act consists of only five sections but has proved very effective and successful in the conservation of the forests. The main object of the Act is “to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto". Conservation of forests is necessary as deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation has been taking place on a large scale in the country and it has caused widespread concern. Thus, the Act has been passed to conserve the forests and check deforestation effectively. Section 2 of the Act places restrictions on de-reservation of forests or use of land for “nonforest purposes”. It provides: ...no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing— i.

that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

ii.

that any forest land or any portion thereof may be used for any non-forest purpose

iii.

that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

iv.

that any forest land or any portion thereof may be cleared of trees I which have grown naturally in that land or portion for the purpose of using it for reafforestation.

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The Supreme Court has also defined the term “forest". In TM Godavarman Thirumulpad v. Union of India5 (T.N. Godavarman III), I the court declared that the word “forest” must be understood according designated as reserved, protected or otherwise for purpose of Section 2(i) FCA, The term “forest land”, occurring in Section 2 will not only include “forest” as understood in the dictionary sense, but also any area recorded as forests in the government record irrespective of the ownership. This description of forest has been used in many cases. The court has made it clear that Section 2 is prospective in its operation and any regularisation order on or after 25 October 1980 cannot be without the prior approval of the Central Government. The Act has put a blanket ban on the use of forest land or any part thereof for non-forest purposes and made it a mandatory requirement to seek prior approval of the Central Government to make use of forestland for non-forest purposes. The Supreme Court has made it clear in T.N. Godavarman Thirumulpad v. Union of India6 that the term "forest” in the FCA covers not only forests but also forest land, and observed that forest is no longer res integra. Therefore, it also covers "dry cropland”. The court has also made it clear that even if a licence has been granted for an industry by a Ministry of the Central Government, prior approval of the Central Government is necessary after the matter has been considered by the Advisory Committee constituted under the Act of 1980.7 In T.N. Godavarman III8, the Supreme Court has already observed that a forest includes the area noted m the government records as forest, irrespective of private ownership or State ownership. Any non-forest activity within such areas is violative of the FCA. The running of sawmills of any kind is a non-forest activity which must be prohibited. No sawmills should be permitted within a distance of 8 kms from the boundary of the demarcated forest area. Moreover, no State can gave licence for mining without the prior approval of the Central Government. All such ongoing activities must be stopped by the State Government

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(1997) 2 SCC 267 (2001 10 SCC 645; AIR 2000 SC 1636 7 Goa Foundation v. State of Goa AIR 2001 Bom 318 8 TN Godavarman Thirumulpad vs Union of India (1997) 2 SCC 267 6

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T.N. Godavarman Series of Cases  The judgement pronounced by court in T.N. Godavarman II9 has become a guiding force in cases of grant of licence to sawmills, veneer and plywood mills within the forest area. Detailed directions were issued by the Supreme Court on 29 April 2002 and 12 December 1996, wherein all the States were directed to constitute “expert committee" to assess sustainable capacity of sawmills and timber based industries in the States It also directed the Central Government to constitute the CEC as envisaged by Section 3, Environment (Protection) Act, 1986 to monitor implementation of the court orders and examine the application of the sawmill owners. It must be remembered that the court had already made it clear that any non-forest activity, mining activity and sawmills, within the forest area without the “prior approval of the Central Government’ must cease forthwith. T.N. Godavarman II particularly dealt with the sawmills, veneer and plywood operating in the forest areas.

 In T.N. Godavarman v. Union of India10 , the Kudremukh Iron Ore Co. Ltd., which was working in the Kudremukh National Park, applied for the renewal of the lease for a period of 20 years. This Forest National Park was declared to be a reserved area in i960 and 198- under a notification issued under Section 35(1), Forest Act, 1927. To solve the dispute, a Forest Advisory Committee (FAC) was set up under Section 3 FCA which recommended that mining may be allowed for a period of four years, i.e. up to 2005, UP to which the company can exhaust the already broken up area. The company was already working in the park area before the commencement of the FCA. The Supreme Court declared that the recommendation of the FAC be accepted. The court ruled that whether it is a case of first grant or renewal, the compliance of Section 2 FCA is necessary as a condition precedent.

 In T.N. Godavarman11, the petitioner challenged the allotment of land of 15 hectares by way of lease to M/s Maruti Coal and power Ltd. for setting up coal washery. It was claimed that the land leased out was a forest land, which could not be used for non-forest 9

(2002) 9 SCC 502 (2002) 10 SCC 606, AIR 2003 SC 724 11 (2006)5SCC28 10

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purpose, for coal washery. The court reiterated that the definition given to the term “forest” must be understood according to its dictionary meaning Thus, it covers all statutorily recognised forests, whether designated as reserved, protected or otherwise, for the purpose of Section 2(1), Forest Act, 1927. Taking a practical approach, “an area measuring 10 hectares or more having an average number of 200 trees per hectare ought to be treated as forest”. Moreover, it includes any area recorded as forest in the government record irrespective of the ownership. The matter related to the disputed land was referred to the CEC who gave three reports on three different occasions, and declared that the land in question was a non-forest land. Therefore, it was declared that the petitioner did not come to the court with clean hands but with ulterior motives, the court dismissed the petition with costs and also warned the petitioner not to use “recuperate language” in the pleadings.12With reference to conservation, preservation and protection of forests and ecology and use of forest for non-forest purpose, following principles were laid down by the Supreme Court: 1) The principal aim of the forest policy is to ensure environmental stability and maintenance of ecological balance including atmos-pheric equilibrium which are vital for sustenance of all life forms, human, animal and plant. The derivation of direct economic bene¬fit must be subordinated to this principal aim. The forest policy has a statutory flavour. The non-fulfilment of the aforesaid principle would be violative of Articles 14 and 11 of the Constitution. 2) Compensatory Afforestation Fund Management and Planning Authority (CAMPA) created by the Ministry of Environment and Forests (MoEF) with the occurrence of the CEC was essential. It shall allocate money to the States for their site specific schemes out of Compensatory Afforestation Fund (CAF). This fund has been created having regard to the principles of inter-generational justice. 3) If it is at all necessary for economic development to use forest for non-forest purpose, then before permission is granted by the CEC, there should be some scheme (including short term as well as long term measures) for regeneration of forests. Constitution of CAMPA under Section 3(3), Environment (Protection) Act, 1986 is 1 laudable step in this direction.

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S.C. Shastri ; Environment Law, Fifteenth Edn

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4) Money received towards “compensatory afforestation”, additional compensatory afforestation, penal compensatory afforestation, net present value (NPV) of forest land, catchment area, treatment plan fund, etc. shall be deposited in CAF. 5) Fund received from the user agencies shall be used exclusively for undertaking the conservation activities. 6) Artificial regeneration activity must be started at the earliest. Local and indigenous species must be used in plantations. 7) Independent system of concurrent monitoring and evaluation should be evolved. 8) .Forest management planning involves a blend of ecological, economic and social systems with the economic and social sides of planning. Levying of appropriate NPV on the user agency of such diverted forests land as the price of such forest use is legal. All projects for use of forest for non-forest purpose shall be required to pay NPV except government projects like hospitals, dispensaries and schools. In a recently decided case, the Supreme Court allowed the application to fell 1041 khair trees, subject to the condition that the applicant shall provide funds to the Forest Department of the State of J&K for planting and maintenance of khair plants, at least ten times the number of trees proposed to be felled for execution of project. 13

 Similarly, the court permitted the use of forest land for the construction of Express Metro Link to airport in Delhi with the condition that “the compensatory afforestation” should be carried out near the impact area. And further it was suggested that translocation, if feasible, of the trees be done instead of felling of trees. 14

 It was further directed that NPV of the sale of trees must be deposited in Compensatory Afforestation Fund. Further, 5 per cent of the project will also be deposited for the Management Board for conservation and development of the area.15

 This amendment has also made it a fundamental duty of the citizens “to protect and improve the natural environment including forests, lakes, rivers and wildlife....”16

 If licenced sawmill is located at a distance of 8 kms from forest area in an approved industrial area, it can be permitted to run17

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TN Godavarman Thirumulpad vs Union of India, (2012) 12 SCC 96 TN Godavarman Thirumulpad vs Union of India, (2012) 13 SCC 438 15 TN Godavarman Thirumulpad vs Union of India, (2013) 11 SCC 466 16 Art- 51-A (g) 17 TN Godavarman Thirumulpad vs Union of India(2010)6 SCC 610 14

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Analysis Has the Supreme Court Order Had the Desired Effect? Godavarman Thirumulpad filed his case against the Union of India for the purpose of preserving a forest in his home region. The Supreme Court took the case and used it as justification for implementing and administering national forest policy to a degree far beyond the original scope of the case. The Supreme Court made interpretations and issued orders that apply to all states and forests in India, not just the forests of Godavarman’s home region. The Supreme Court was attempting to address the very important problem of forest management, or mismanagement, in India. Forest cover in the country was decreasing, and unless India quickly adopted sustainable forest practices, the country’s ecological stability and biodiversity would suffer immensely to the detriment of future generations. The Supreme Court recognized the importance of forest preservation and observed the increasing destruction and degradation of forest land. The Supreme Court noticed that those national and state organizations responsible for forest management were failing in their duties. In light of national and state governments’ inaction, the Supreme Court’s unusual assumption of powers seems justified, especially given India’s alarming statistics on forest cover. The Forest Survey of India (FSI) last reported India’s forest cover as 20.64% of the country’s geographic area.18With the goal of increasing the national forest cover to 33% by 2012, India still seems underforested.19 Moreover, the methodology behind this statistic suggests that the figure of 20.64% is meretricious. The measurement of forest area breaks down as follows: Very dense forest (more than 70% forest cover

1.56% of the geographical area

Moderately dense forest (40-70% forest cover)

10.32% of the geographical area

Open forest (10-40% forest cover

8.76% of the geographical area

Total forest cover:

20.64% (includes mangroves) 0.14%of the geographic area

18 19

State of Forest Report, 2003, Forest Survey of India National Forest Policy of India (1988).

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FSI reports that 8.76% of India’s forest cover is open forest, but what is “open forest?” With a minimum area of 1 hectare (or 2.471 acres) for measurement, land with a canopy density of only 10% hardly seems to qualify as “forest.” Furthermore, FSI does not distinguish between private and public land, i.e., it does not distinguish between forests and fruit orchards or tea and coffee plantations. The survey counts all perennial woody vegetation with a canopy density above 10%, regardless of its ownership or makeup. Open forest could be too thinly covered to be considered forest in measurement of India’s ecological health. Because FSI’s idea of open forest includes sparsely vegetated land in its total count and because it fails to distinguish among different types of vegetation and ownership, the real forest cover of India could be as low as 12%, a far greater distance from the national goal of 33%. Given the problems with the current statistics and the alarmingly low percentage of real forest cover, the Supreme Court’s intervention in forest policy was, at least in this respect, justified. National and timely action was necessary to curb deforestation. In many ways, the Supreme Court’s aggressive stance toward forest management has had some positive effects. India already had environmental laws to manage forests and encroachments, but sub-competence, insufficient staffing, and corruption prevented the executive branch and its underlying agencies like the MoEF from enforcing policies and adapting them to India’s changing environmental needs. Hence, the Supreme Court’s radical orders and its wide assumption of powers slowed and possibly reversed two ecologically dangerous trends: that of an ineffective govern ment and that of decreasing forest cover. By so aggressively and controversially addressing forest issues, the Supreme Court has also raised awareness concerning India’s forest cover. Although its hastiness caused many predictable and perhaps avoidable effects, these efforts have in many ways benefited India’s environment and given advocacy groups a renewed opportunity to protect India’s forests. The Supreme Court’s actions have also addressed negligent forest management. India recognizes that the constitutional right to life depends on the right to a clean and healthy environment. To enforce the right to life, the government has the legal responsibility to effectively conserve forests and biodiversity. The government’s past inaction and inadequate response to environmental issues can be viewed not as exercises of executive discretion, but as violations of law that would warrant the Supreme Court’s intervention. From this perspective, the Supreme Court’s policies have attempted to uphold 13 | P a g e

the right to life when it was being seriously neglected. Although decisive action may have been necessary, the Supreme Court’s orders made demands far beyond its control. The Supreme Court assumed too much power too quickly to effectively manage it. Its orders may have been logically sound, though incomplete, from a policy perspective, but from a practical perspective, they demanded too much from India’s weak state and local governments. The Supreme Court did not exercise sufficient caution in extending its role to directly oversee forestry issues. Despite the Supreme Court’s defense of the right to a clean and healthy environment as part of the right to life, the Court’s aggressive policymaking violated people’s right to life by severely disrupting the timber industry, i.e., people’s right to a livelihood, and sparking violent action against tribal peoples and alleged forest encroachers. The Supreme Court could have limited its decisions to the scope of the original Godavarman case or even delegated responsibility for handling certain issues to government agencies. Slowing down its intervention in forest management or limiting its geographical scope might have prevented states from hastily and unjustly evicting tribals from their homelands in response to an order by the MoEF. So while the Supreme Court has in some ways improved India’s approach to forest issues, its aggressive role in the process has disrupted the balance of powers among government organizations and caused severe economic and social turmoil. By assuming so much power, the Supreme Court has perpetuated an incompetent government bureaucracy that defers to the Supreme Court for policymaking. The MoEF’s recent efforts to correct its past mistakes concerning tribal encroachments suggest that the government is making the necessary adjustments to ease the economically and socially harmful effects of the Supreme Court’s orders. But the process of building the bureaucratic infrastructure, which hung loosely behind the Supreme Court for so many years, will require more time. Even though the MoEF is improving its policy toward tribals, the Godavarman case has provided it with ample opportunity to expand its powers, and it has vigorously done so. The centralization of forest management bypasses much state inefficiency. It also increases the distance between the administrators of forest policy and the tribal people who are affected by it and who are inextricably involved with forest protection. The Supreme Court’s “continuing mandamus” in the case also leaves open the possibility for further judicial activism that might interfere with the progress of other agencies toward fair and productive forest and human rights policies. 14 | P a g e

Conclusion When the Supreme Court received the Godavarman case in 1995, India’s environmental policy was in dire need of reform. The Supreme Court’s actions, although extreme, addressed an issue vital to the human and natural health of the country and gave heart to advocates of forest protection. However, in raising awareness of environmental issues and bringing them to the forefront of national and judicial concern, the Supreme Court began the disquieting practice of “continuing mandamus.” In hearing over 800 interlocutory applications since 1996, the Supreme Court has extended its involvement in forest issues and thereby increased the country’s dependence on the Supreme Court for forest management. This dependence on a judicial institution that has already exceeded the boundaries of its responsibilities has been further complicated by the lack of monitoring of the Supreme Court’s orders and the vagueness of the legislative and executive roles regarding forest issues. With its micromanagement of forest issues and the increasing number of Supreme Court-instituted organizations, the potential for conflict is hardly over. As the centralization of power to government organizations like the MoEF increases, will the executive, legislature, and judiciary succeed in cooperatively managing India’s forests, or will the Supreme Court’s far-reaching assumption of powers clash with the central government’s policies? And amidst the delegation, redistribution, and reorganization of responsibilities and powers, what will happen to India’s forests and the tribal people who inhabit them? The Supreme Court’s aggressive forest management has incurred large economic and social costs. It remains to be seen whether the Court can successfully transfer control to the appropriate governmental organizations, whether it can effectively manage the organizations it has formed, and whether it will avoid further economic and social disruption while attempting to restore India’s forest cover..

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References Bibliographies: 1. Shanthakumar S, Introduction to Environmental Law, 2nd edition, 2008, Wadhwa & Company Nagpur 2. S.C. Shastri ; Environment Law, Fifteenth Edn

Websites:  http://en.idi.org.il/analysis/articles/the-significance-of-international-recognition-ofthe-state-of-palestine  http://www.una.org.uk/content/safer-world-state-recognition-and-self-determination  https://www.eda.admin.ch/eda/en/fdfa/foreign-policy/international-law/respectpromotion/the-recognition-of-states-and-governments.html  http://www.lawteacher.net/free-law-essays/international-law/recognition-importantissues-in-international-law.php  http://www.markedbyteachers.com/university-degree/law/what-is-the-importance-ofrecognition-in-the-international-legal-system.html  http://www.bu.edu/law/journalsarchive/international/volume27n1/documents/worster. pdf  https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/Meetin g%20Summary%20Recognition%20of%20States.pdf  http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199228423.001.000 1/acprof-9780199228423-chapter-1

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