Indian Judiciary: Bolster For Forest Conservation. By - Sehar Sethi

Indian Judiciary: Bolster For Forest Conservation.

Authored By - Sehar Sethi

“Sustainability is a political choice, not a technical one. It’s not a question of whether we can be sustainable, but whether we choose to be.”

               -By Gary Lawrence

Sustainable development in its true essence does not signify a mere means of survival or sustenance, it is not an end. On the contrary, it is an instrument to aid and achieve the purpose of counterbalanced growth. The Stockholm Conference in 1972, for the first time, acknowledged the concept of sustainability and development wherein it stated that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing and he bears a solemn responsibility to protect and improve the environment for present and future generations.”[1] Furthermore, in its report, ‘Our Common Future’ also popularly known as the ‘Brundtland Report’, the World Commission on Environment and Development (WCED) defined sustainable development as “development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.”[2] Development is a precursor to the growth of a nation however such a growth cannot be achieved at the cost of degradation of the ecology.

When viewing the various pillars of our ecology, it is imperative to shed light on one of the primary stakeholders: Forests. In 2021, India lost 127kha of natural forest cover owing to the various industrial activities in the garb of development. According to globally known studies, 33% of the country should be covered with forests; however, the current situation of India stands much lower than the advisable standards. When the question of how a state can further the goal of sustainability arises, there can be seen a visible growing trend of judicial activism wherein the Indian judiciary plays a vital role in revolutionizing the environmental jurisprudence in India. This article aims to critically analyze how the Indian Judiciary has aided in securing the concept of sustainable development in forests and furthered the agenda of forest conservation and the possible lacunas in the precedents if any.

The first case where the Indian Judiciary had invoked the principle of sustainable development was Vellore Citizen Welfare Forum vs. Union of India[3]. The Hon’ble Supreme Court in this case upheld and acknowledged the concepts and principles of sustainable development, namely:

1. Inter-Generational Equity
2. The Precautionary Principle
3. Polluter Pays Principle

The Court further laid out in its obiter that the traditional concept of ecology and development even though are conventionally opposite cannot be separated. Although, at first instance it may seem that the two are polar opposites, however on a fine analysis of both the concepts it is imperative that for one to exist the other cannot be harmed or overlooked. This case acted as the stepping-stone in the green revolution of the Indian judiciary.

Tracing the evolution of the jurisprudence on Forest Conservation through landmark case laws.

Along the lines of what was held in the Vellore Citizen case, the major stepping-stone for the Indian jurisprudence on conservation of forests was the case N. Godavarman Thirumukalpad V. Union of India[4], also known as the “Forest case”. The case concerned addressing a writ petition filed to protect a part of the Nilgiris forest from deforestation by illegal timber felling. The judiciary in this case played a monumental role in reinterpreting the definition of forests within the ambit of section 2 of the Forest Conservation Act 1980. It widened the definition of the term ‘forest’. Before this judgment, the definition was restricted to if the government declared the region as a forest, regardless of whether there was adequate tree cover or not. However, post the judgment it was opined that ‘forests’ shall include all such regions which fall within the ambit of the dictionary meaning of forests.  Furthermore, the SC passed a series of orders: “ordered all non-forestry activities anywhere in the country that had not received explicit approval from the central government to cease immediately. It also suspended tree felling everywhere, except in accordance with working plans approved by the central government. It completely banned, with minor exceptions, tree felling in three whole states and parts of four other states in the forest-rich north-east. It ordered sawmills to close down not only where a complete ban was directed but even within a 100 km radius of Arunachal Pradesh’s state boundary. Finally, it banned any transportation of timber out of the northeast states.”[5] The SC hence invoked the public trust doctrine[6] (as was invoked in M.C. Mehta v. Kamal Nath and Others), wherein it is the responsibility of the government to preserve and protect resources like air, sea, waters and the forests which are of great importance to the public as a whole and it would be unjustified to subject them to private ownership.

It also strictly interpreted that non-forestry activities must require prior approval of the Central Government thus, imposing procedural requirements to ensure there were no loose ends for exploitation of forests. This indicates that there was no total ban on development and industrialization thus indicating that there was scope for development in the forest region. However, the same was subjected to prior approval of the government which is expected to act according to due diligence and with the mindset of protection of the environment.

In State of Himachal Pradesh v. Ganesh Wood Products[7], the dispute had arisen owing to the permission granted by the Himachal Pradesh government for felling of Khair trees used in Pan Masala factories. The Court in this case applied the principle of intergenerational equity.  The court stated that, “After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations…The obligation of sustainable development requires that a proper assessment should be made of the forest wealth and the establishment of industries based on forest produce should not only be restricted accordingly but their working should also be monitored closely to ensure that the required balance is not disturbed.”[8] Thus, the Court held the permission granted by the Himachal Pradesh government to be violative of the principles of sustainable development as it attracted a large number of pan masala manufacturers in the state and it was giving way to depletion of Khair trees.

In Rural Litigation and Entitlement Kendra vs. State of U.P[9], the SC expanded on how sustainable development can be promoted in forests keeping ecological balance in consideration. In this case, SC permitted a mine to operate till the expiry of its lease. This process of mining was causing deforestation to occur. When it was brought to the notice of the SC that deforestation had occurred in an unscientific way which could, hence, have a negative effect on the ecology, the Hon’ble court took cognizance. The SC directed the lessee to pay compensation for the unscientific deforestation hence invoking the polluter pays principle in promoting the doctrine of sustainable development. Similarly in The Center for Environmental law (CEL), WWF VS. Union of India and Others[10] there was a major change made to forest management by the central government. It was provided in this judgment that no forest can be de-reserved without prior permission from the SC. Further it was provided that, non-forest activities would be permitted only if they were permitted under the Forest Conservation Act, 1980.

Criticisms of the judgments.

From the precedents discussed above it is evident that the Indian judiciary has beyond its functions assumed upon itself the role of promoting forest conservation along with sustainable development. However, there are certain criticisms of these judgments that need to be highlighted. One of the primary criticisms as was also discussed after the Godavarman case is that the orders by the SC in the case were an act of judicial overreach and took control of the function of the Ministry of Environment and Forest. Due to this intervention by the SC, the Ministry was overpowered by the SC. Further, the mandates such as prior approval from the SC create liability and judicial overload which leads to delay in the already pending plethora of cases. Another setback of this judgment was that there was a rise in black market sale of timber and small scale and local producers applying for non-forestry activities and using it for illegal purposes. The order passed in the CEL case causes a strain on the resources of the judiciary as it assumes upon itself the role of supervising the protection of forests directly along with undermining the role of the executive. It was argued that the day-to-day governance of forestry rules creates an additional burden on the pendency of cases before the judiciary and hence deviates from the judicial function to an executive role and a legislative function.

Whether the judgments passed by the judiciary in view of conserving the forests could be viewed as a judicial overreach?

In my opinion, the criticism of the orders passed by the SC in light of protecting the interests of forest conservation and sustainable development, although creating a strain on the resources of the judiciary itself, cannot be viewed as judicial overreach. To compensate for the inefficiency of the government in protecting forests and promoting sustainable development in forest regions, it was imperative that the judiciary practiced its discretionary power of judicial activism. Matters of creation of a balance between ecology preservation and development require a certain sense of urgency. Once depleted, environmental resources require years to replenish and hence require certain safeguards. As already discussed, the forest cover in India is already less than the recommended standard hence it is important to treat it as a priority. Although the policy framework of sustainable development in forest regions should be adhered to, the judiciary through the precedents set as discussed above, provides for the lack of procedural provisions along with invoking the principles of sustainable development, hence the orders cannot be seen as a judicial overreach. As seen from the general practice of law, the judiciary creates a balance by providing for the policy lacunas observed through the discussed judgments. The judiciary has tried to fill the gap between the black letter law and its implementation through its interpretation of Forest laws.

Conclusion

In conclusion, the Indian judiciary has played a vital role in safeguarding the environmental jurisprudence on forest conservation. This can be seen from the various judgments as mentioned which includes the evolution of the jurisprudence in cases such as: N. Godavarman Thirumukalpad V. Union of India, State of Himachal Pradesh v. Ganesh Wood Products, Rural Litigation and Entitlement Kendra vs. State of U.P and The Center for Environmental law (CEL), WWF VS. Union of India and Others. It can be seen that there may be a need to assess the current forest protection regime in India considering the current status of the forest cover in the country. However, there still remains a question of whether it lies in the ambit of the legislature or the judiciary to provide a safeguard through legislating provisions for the same. It is noticed in the stated precedents that even though safeguards exist for creating a safeguard for there are lacunas which arise on a case-to-case basis which do not find its safeguard in any of the cases. In such instances, it is imperative that the judiciary steps in to provide guidelines are safeguarding provisions to maintain and conserve the purpose of the Forest Act. Through the various guidelines and precedents, it has acted as a constant support in securing the forest covers keeping in mind the balance between development and preservation of ecology.

[1] Stockholm Declaration, 1972.

[2] S.Shanthakumar, ENVIRONMENTAL LAW AN INTRODUCTION, pp. 122, 123,Chennai: Surya Publication, (2001).

[3] (1996) 5 SCC 647.

[4] [WP (Civil) No. 202 of 1995], (India).

[5] Rosencranz, Lele, Supreme Court and India's Forests, Vol. 43, Issue No. 05, 02 Feb, Economic and Political Weekly, (2008).

<https://www.epw.in/journal/2008/05/commentary/supreme-court-and-indias-forests.html>

[6] M.C. Mehta v. Kamal Nath and Others [(1997) 1 SCC 388].

[7] 8 (1995) 6 SCC 363.

[8] Ibid.

[9] AIR 1987 SC 359.

[10] AIR 1999 SC 354.