THE SUPREME COURTS RESPONSE TO DEFORESTATION

The Forest (Conservation) Act, enacted in 1980, was meant to stop the diversion of forest land for non forest purpose and to stop further deforestation in the country. Although the act was successful to the extent that the amount of land diverted for non forest purpose showed a drastic decline, yet it provided for enough loopholes for forests to be cut down. The Supreme Court decision in the TN Godavarman case was landmark it made the Act applicable for the purpose for which it had been enacted.

In its first order dated 12th December 1996, the Supreme Court stresses that the FCA was enacted with a view to check further deforestation  which ultimately results in ecological imbalance. Further the court noted that the provisions made their in for the conservation of forests must apply to all forests irrespective  of the  nature  of ownership  or classification thereof. The term "forest Land', occurring in Section 2, will not only include "forest" as understood in the dictionary sense but also any areas recorded as forests in the Government record irrespective of the ownership. This is the way it has to be understood for the purpose of section 2 of the Act. The Supreme Court ordered that in accordance with section 2 of the Act, all ongoing activity within any forest in the state throughout the country, without the prior approval of the Central government, must cease Further the Court issued the following important directions:

>       All ongoing activity within any forest in the state throughout the country, without the prior approval of the central government must cease.

>        In the tropical forests of Tirap and Chaglang in the state of Arunachal Pradesh, there would be a complete ban on the felling of any kind of trees in view of the of need to preserve biodiversity.

>        The felling of trees in all forest is to remain suspended except in accordance with the working plans of the state government.

>        There shall be a complete ban on the movement of cut trees and timber from any of the seven north eastern states to any other state in the country either by rail, road or water ways.

>       State Governments were to constitute an expert committee to identify areas that are "forests", degraded lands, and plantations. In its order the Court made many specific recommendations such as the in the case of Himachal Pradesh and the hill regions of UP and West Bengal the ban will not affect felling in any private plantations comprising of trees which are not forests. Further the ban will not apply to permits granted to the rights holder for the bonafide personal use in Himachal Pradesh.

The supreme Court order forced the government to act with respect to controlling the diversion of forest land for non forest purposes. In particular it was concerned about the condition of forests in the northeastern states. In its order dated March 4th 1997[1] the Court constituted a High Powered committee to oversee the implementation of the orders of the Court in the North eastern region. The committee was to oversee the preparation of an inventory of all timber in all forms. In the mean while there were protests in many of the states mostly in the north east against the restriction on cutting down of trees. The state of Meghalaya in its affidavit had stated that a significant quantity of timber was required by the rural tribal population in the state. Further there has been a loss of revenue to the state also on account of the Courts restriction. In its order the Court also clarified that the orders of the court shall apply to all autonomous Hill Councils in the North Eastern States as well as Union Territories.

In its order dated January 15, 1998 the Supreme Court noted that although the proliferation of wood based industries ahs been the main cause of degradation of forests in the North eastern states, however considering the dependence of the local people on the fores6t resources in the region, it is neither feasible, nor desirable to ban completely either the timber trade or running of the wood based industries. However their number and capacities need to be regulated ....they are also required to be relocated in specified industrial zones. Most importantly the court stated that "industrial requirements have to be subordinated to the maintenance of environment and ecology as well as bonafide local needs." [Para 3] Further in view of the fact that a huge amount of felled timber was decaying the Court ordered that no fresh felling in the forests belonging to the Government, District Council and regional council till the disposal of their existing stocks and illegal timber.

In terms of institutional set up the Court stated that in view of the multi dimensional issues impinging upon forest protection, fool proof institutional arrangement need to be put in place, and made functional under the strict supervision of the North - Eastern Council (NEC). In its detailed order the Court listed out the series of measures to control the massive incidence of deforestation in the North eastern region. Of particular significance are

@       The State Governments shall formally notify industrial estates for locating the
wood based industrial units in consultation with the Ministry of Environment and Forests [Para 6]

@       Number of wood based industries shall be determined strictly within the quantity of timber which can be felled annually on sustainable basis as determined by the approved working plans from time time. If its is found that units after relocation in industrial estates have excess capacity then their capacities shall be reduced pro rata to remain within the sustainable levels.

@       To ensure protection of the forest wealth the forest officers in the North Eastern States may be empowered with the authority to investigate, prosecute and confiscate on the lines of the power conferred on the forest officers in many other states in the Country. [Para. 21]

@       Working plans of all forest division shall be prepared by the State Governments and got approved from the Government of India. Forest working shall be carried out strictly in accordance to an annual felling programme approved by the MoEF. [23]

@       The forests under the District regional and Village Councils shall be worked in accordance with the working schemes which shall specify both the programme for regeneration and harvesting and whose period of shall not be less than 5 years. [Para. 24]

@      The states shall identify ecologically sensitive areas in consultation with leading institutions such as the Indian Council of Forestry research and Education, wildlife institute of India, North Eastern Hill University, North Easter Regional Institute of Science and Technology leading NGOs etc.

In the meanwhile a number of incidence of violation of the Courts order came before the Court. In its order dated January 7, 1998 the Supreme Court appointed a committee to inquire into the incidence of illegal mining activity taking place in Doon valley. Even the Union Environment and Forest secretary personally informed the Court of the continuation of illegal mining. The Scope of the T. N Godavarman case got expanded with whole range of issues relating to the cutting of timber whether legal or illegal came before the bench. A very shocking event was that of the Madhya Pradesh Forest department, which in the garb of removing infected Sal trees (Shorea robusta), non infected trees were also being cut. Even more the Court restrained the State government of Madhya Pradesh and its functionaries to cut any of the trees thereafter, even if in the opinion of the state government, the particular tree or trees are considered to be diseased[2].

Following the hardship caused by the people of the people of hill areas, on account of ban on felling of trees, the Court clarified that nothing in the orders of the Court prevents the UP Forest Corporation from directly undertaking the exercise of collecting forest produce including fallen wood (but not any felling or cutting of trees or timber) to the extent strictly necessary[3].

The Supreme Courts intervention in the conservation of forests had the positive impact of the Government constituting authorities for the protection of forests. Thus in exercise of the powers conferred by sub -Section 3 of Section 3 of the Environment (Protection) Act, 1986, constituted an authority for Auranachal Pradesh called the Arunachal Pradesh Forest Protection Authority. It was for the first time that the Environment (Protection) Act, 1986 was used to create such a protection authority. The Supreme Court was of the view that the feasibility of such an Authority both at the state level and at the national level is thought of[4].

The various orders of the Court did make the State Government' to act, however many of the state governments were in search of loopholes to the orders of the Court (similar to the one adopted by Madhya Pradesh). Nagaland found a loophole in the earlier order where the court which after taking into account of the proliferation of wood based industries is the main cause of degradation of forests in the North -Eastern States, ordered that the wood based industries be located only in specified industrial zones formed on the basis of consultation with the Ministry of Environment and Forests. The states were directed to identify industrial estates within 45 days of the date of the order and to develop the industrial estates within six months thereafter.  In a blatant misuse of its powers the Government of Nagaland designated the whole of the whole foothill areas of Nagaland and all areas within IKm of National and State Highways state roads as Industrial Estates for locating wood based industries. Further the State government had not even consulted the Ministry of Environment and Forests while notifying the industrial estates.

The Supreme Court issued a show cause notice to the Nagaland chief Secretary. Similarly, Assam had notified certain Town Areas/ Municipal Corporation Areas as Industrial Estates for locating wood based industrial units. According to the Court, the Notification of the Government of Assam does not comply with the requirements as stipulated by the Court.

The fact that the forest (Conservation) Act, 1980 does not put a blanket restriction on the cutting of trees, but only transfers the power to allocate land for non-forest purpose the Central government became clear in the IA filed by the National Minerals Development Corporation (NMDC)[5]. NMDC had acquired six leases in forest land for mining purposes. The central government had given permission for the same. The Court clarified that " ....as far as this Court is concerned, it had prohibited the carrying on of any non-forest activity in a forest area without the permission of the Central Government. Now that the Central Government has granted permission subject to the conditions which may be imposed, the applicant would of course be at liberty to operate on the said mines" The Court further stated that "......what was prohibited by the Court was illegal cutting of trees and cutting of trees without the permission of the Central government. Its is nobody's case ....that the cutting of trees in carrying on the mining operations in the present case would be environmentally hazardous or contrary to any law especially in view of the fact that an obligation has been cast on the applicant to carry out afforestation ...."

A very important order which was a point of debate by human rights and adivasi groups was the order passed by the Court on an application filed through the Amicus Curie praying for clarification that the order dated 12th December, 1996 contained a ban against the removal of any fallen trees or removal of any diseased or dry standing tree from the areas notified under Section 18 or 35 of the Wildlife (Protection) Act, 1972[6]. The Coun issue notices to all the respondents. In the meantime it restrained the Government from ordering the removal of dead, diseased, dying or wind fallen trees, drift wood and grasses, etc. from any National Park or game Sanctuary or forest. Further the Court stated that if any order to this effect has already been passes by any of the respondent - states, the operation of the same shall be immediately stayed.

In its order dated September 8, 2000[7] was an important order.

In this order the procedure for dereservation of land was analysed by the Court in particular the procedure whereby the applicant deposits money with the State government and the State government is required to carry out the afforestation work. The Court was of the opinion that in order to ensure reforestation by release of reserved forests, the primary responsibility of carrying out the afforestation should be of the applicant concerned ie. the party which is going to use the dereserved land. The Court went a step further and stated that while granting permission (under the FCA) the Central Government must specify the period within which the afforestation must commence and be completed. Furthermore, there should be a requirement of environmental audit in order to ensure that after the sapling have been planted the survival rate is high. Besides, the Government might consider requiring each applicant who is under an obligation to carry out the afforestation to publish the results of the environmental audit every year in a newspaper and forward the same to the Central government. It should be specified that if the survival rate of the trees planted is not upto a specified percentage, the permission which is granted shall be automatically cease and the non-forest activity will have to be stopped. In other words, the applicant is not only responsible for planting trees but it should be its responsibility to look after and maintain the same and ensure its survival and growth. Besides, the Court desired that the Central Government before granting permission to dereserve the forest should be satisfied that the applicant to whom the permission is ultimately granted is such whom will be in a position to carry out the afforestation as prescribed.

CONCLUSION

The T.N Gbdavarman case has included within its ambit a whole range of issues other than the illegal feeling of trees. It has dealt with mining, protection of National parks and sanctuaries, violence against forest officials etc. Further it has through its various orders made policy initiatives that aims at systematic change in the forest acts aimed at biodiversity conservation.

It has been controversial to some extent also. The initial order of the Court which banned the movement of timber from the North eastern region was severely criticised by the many of the political leaders of the region on the ground that it would deprive many tribals of their livelihood. How genuine was the concern of the leaders is doubtful since it is a known fact that the group to benefit the maximum from the tree felling are timber traders from outside. Further, most of the export of timber is in round log form and very minimal value addition is taking place in the region.

Further there was an urgent need for putting to an immediate halt the unrestricted deforestation that was taking place in the areas under the control of the District Councils and other such tribal institutions. The District Councils and other tribal institutions, as also private owners did not follow any systematic plan for harvesting of timber and this had resulted in massive ecological damages in the region. The Supreme Court allowed only timber extraction that is in accordance with an approved working plan. Thus for the first time not only the Forest department but also the other managers/ owners of forests were required to prepare a Working Plan.

The Court also looked critically at the whole procedure that is followed by the Government in granting clearance for diversion of forest land for non forest purposes. It also suggested that a new approach towards compensatory afforestation be worked out given the dismal survival rate of trees at present. It right observed that the present system whereby the responsibility is of the Forest Department to carry out compensatory afforestation has to give way to a system whereby it is the responsibility of the project proponent to carry out the afforestation.

The order of the Court directing that the removal of dead/decaying trees be banned from National Parks and Sanctuaries was also looked at as something which would have a drastic impact on those dependent on forests. How much was the impact of the order is yet to be ascertained. Yet in terms of biodiversity conservation this was a landmark order for it highlighted the need to even protect dead trees and dry grasses given their importance for the ecosystem.

It can be said the effect of the various orders were fold: (i) the ecological impact of the order and (ii) the impact on the forest dependent people (iii) impact on Industry ; (iv) Impact on the Forest department and Government

ECOLOGICAL IMPACT OF THE ORDER

@    The Forest (Conservation) Act, meant to prevent deforestation was made more
holistic. Prior to the order the Act was limited only to lands notified as forests in government. The supreme Court order made it applicable to all categories of forests whether government or private or community controlled.

@   Secondly, the wide definition of forests has resulted in various floral elements being included within the purview of forests.

@   The order is of critical importance to the forests of the North East since this was the region where the highest rate of deforestation was occurring.

IMPACT ON PEOPLE

@   It is difficult to ascertain the exact impact of the order since very little empirical data is available.

However, the order did stop the unrestricted logging that was happening in the North East thereby depriving the people of all the life support system. Besides, the removal of forest produce for bona fide local use was not curtailed. The order restricted in some instance the removal of forest produce from protected areas. But being an interim order its exact impact is yet to be assessed.