13 Forest Conservation

Mr Sujith Koonan

Introduction

According to the State of Forest Report 2013 by the Forest Survey of India, th e total forest and tree cover in India is estimated to b e 78.92 million hectares. This constitutes 24.0 1 per cent of the total geographical area of the country. Out of which the forest cover of the country is 69.79 milllion hectares and this constitutes 21.23 per cent of the total geographical area of the coun try. According to the National Forest Policy, 1988, id eally, one-third of the total land area of the country should be under forest or tree cover to ensure eco logical stability.

Forests play crucial role in the economic development of India. Forest is one o f the major sources of raw materials for industries. Fo rests are also the key centres of mining activities. In addition to the economic relevance of forests, their ecological relevance includes the fact that t hey provide shelter for wildlife and play crucial roles in maintaining the balance of ecosystem. Forests a re also part and parcel of life and livelihood of tribal an d forest dwellers. Further, forests are crucial for rural communities as a source of fuel, fodder and food. Forest is the home for tribal communities. But forest land is sacrificed for big development projects. Fo rests are being exploited for industrial and comm ercial purposes. Many of these interests often conflict w ith each other.

Forests have been the subject matter of legal regulation for a long time. In this context, this unit explains the evolution of forest laws in India during the colonial period and discusses the existing forest laws in India. This unit also discusses key cases and analyse the role played by the India judiciary in the development of forest laws in India.

Learning Outcomes

By the end of this unit, students will have understood the legal regime in India on forests including its historical evolution. Students a re also expected to understand the critical aspects of some of the important provisions of the Ind ian Forests Act, 1927 and the Forest (Conservation) Act, 1980. After reading this unit, students will b e familiar with some of the landmark cases on iss ues relating to use and conservation of forests in India.

Forest Laws during the C olonial Period

The approach of the colonial state towards forests was mainly driven by econ omic interests. Forests were seen as a source of timber for ship building and iron smelting. Forest areas were cleared on a massive scale to facilitate agriculture. From the mid 19th century onwards, the deforestation process intensified due to high demand for timber for railway sleepers. One of the o bjectives of exercising control over forests was to dis connect forest dependant people and the smelt ing communities from forests so that the forests could be used for plantation and construction work an d the government can exercise monopoly over manufa cturing of weapons (Divan & Rosencranz, 2001: 25-26; Sivaramkrishna & Jyotish, 2013: 39; Leelakrishn an, 2008: 42-43).

This is the context in which the colonial state adopted forest laws and established the forest bureaucracy. The imperial forest department was formed in 1864. The initial ap proach of the colonial government was to recognise forests and waste land as the property of the v illage communities. A paradigm shift in this approach was initiated in the Indian Forest Act, 1865 by asserting state monopoly over forests. A major purpose of this Act was to acquire forest areas to sup ply timber for railway related purposes (Divan & Rose ncranz, 2001: 26).

The forest law was further stren gthened through the enactment of the Indian Fore st Act, 1878. This Act classified forests into three types . The first category was reserved forests which w ere, in practice, meant for the exploitation of timber for commercial purposes. Customary rights were not recognised in reserved forests. The second category was protected forests. The rights and privileges of forest communities were recorded but not settled. The third category was village forests which implied that any revenue from village forests was meant for the village communities managin g such forests.

The implementation of the Indi an Forest Act, 1878 strengthened state control over forests. Gradually,more areas classified as protected forests were converted into reserved forests where the state could exercise more control. The 187 8 Act advocated total state control over India’s f orests by ignoring the existing customary rights, norm s, and practices relating to access to forestland and forest resources. Traditional rights were converte d to privileges that were either limited or abolished at the will of the Forest Department (Bose and ot hers, 2012: 669).

The 1878 Act was further mod ified by the Indian Forest Act, 1927 consolidati ng the law relating to forests in India. This law contin ues to be in force to the extent not modified by t he Forest Conservation Act, 1980. Another major devel opment from a legal point of view is the enact ment of the Scheduled Tribes and other Traditional Forrest Dwellers (Recognition of Forest Rights) Ac t 2006. This Act seeks to undo the historical injustices inflicted on tribals and other traditional forest dwellers by providing a framework for recognising their rights over forests. Since the Scheduled Tribes and other Traditional Forest Dwellers (Recognition o f Forest Rights) Act 2006 has been dealt with in detail in another module, this module limits its fo cus on the Indian Forest Act, 1927 and the Fore st (Conservation) Act, 1980.

4. Indian Forest Act, 1927

The Indian Forest Act, 1927 was enacted to consolidate the law relating to fores ts, the transit of forest produce and the duty that can be levied on timber and other forest produce. The Act gives ample powers to state governments to e xercise control over forests.

4.1. Categories of forests

The Act provides for different categories of forests where different degrees of control and regulations are applicable.

4.1.1.  Reserved forest

The state governments are empo wered to declare any forest land or waste land w hich is the property of the government as a reserved forest. The Act also gives power to the government to de-notify a reserved forest. A reserved fore st is a strictly regulated area under the control of the government. The government is entitled to own all or any part of the forest produce in a reserved forest. No right could be acquired over reserved forests except by succession, grant or contract by the government or by any other persons having pre-existin g rights. The activities that are prohibited in a reserved forest mainly include clearing of trees, setting fire to the forest, fishing, burning of charcoal, and hunting. Carrying out such prohibited activities is a punishable offence under the Act.

4.1.2. Protected forest

The Act provides for another category of forests called protected forest. The sta te government has the power to notify any forest which is the property of the government and which is not a reserved forest as a protected forest. While the Ac t prohibits several activities in reserved forests, it does not prohibit any activities in a protected forest. However, the state government can regulate activities in protected forests such as reservation of trees, burning of charcoal, quarrying of lime and removal of forest produce through notifications.

4.1.3. Village forest

The state government has the poower to assign rights over a reserved forest or a protected forest to any village community. Such forests constitute village forests under the Act. The state government can frame rules to give some rights to the village community. All regulations applicable to a reserved forest are applicable to a village forest also to the extent to which it is not contradictory to the rules made by the state government for the spe cific purpose of regulating village forests.

4.2. Settlement of rights

The Act establishes an elaborate procedure for the settlement of rights while noti fying a reserved forest. A Forest Settlement Officer (FSO) is required to consider the claims of the local inhabitants to certain usage rights. The state govern ment is first required to issue a notification de claring its intention to notify any area as a reserved for est, and appoint an FSO to inquire into the existe nce of any rights of the local people. Once the existing rights have been settled under the Act, no new rights in the notified land can be acquired. Rights which a re not asserted during that period are extinguish ed, although there are provisions for later assertions in extraordinary cases until the final reservation ord er is published.

4.3. Regulation of forests which are not government property

Provisions relating to reserved f orests and consequent regulation are applicable to forests which are the property of the government. The Act gives power to state governments to notify any land which is not a government property as a forest. A number of activities such as clearing of land, pasturing, setting fire, cutting of trees, removal of timbber and burning of charcoal can be regulated or prohibited by the state government in a notified forest.

4.4. Economic approach of the Indian Forest Act, 1927

The Indian Forest Act, 1927 de monstrates the exploitative intention of the col onial state. Instead of protecting ecology, the Act focussed primarily on revenue generation. This is evident from the presence of a large number of provisions in the Act dealing with revenue generation. These include provisions for levy of duty on timber and other forest produce. The idea of a reserved fore st and state monopoly over forests, in fact, paved the way for commercialisation of forests to supp ly materials for forest dependant industries and infrastructure building activities. This economic app roach towards forests resulted in rampant destruction of the forest ecosystem. It also took away the customary rights of forest dependant tribal and rural popul ations (Leelakrishnan, 2008: 42-43).

5. Forest Conservation Act, 1980

The widespread degradation of forests in India led to the enactment of the Forest (Conservation) Act, 1980 (FCA). The Act was enact ed to achieve two objectives – restriction on the use of forest land for non-forest purposes and control of de-reservation of forests that have been reserved under the Indian Forest Act, 1927. In 1988, the Act was amended to include two new provisions to restrict leasing of forest land to private individuals or companies, and to prevent felling of naturally growing trees.

FCA can be considered as a legal response from an environmental point of view . The rationale behind FCA was to check deforestatio n and the consequent ecological imbalance. It was first passed as the Forest (Conservation) Ordinanc e, 1980 and was later replaced by the Forest C onservation Act, 1980. The word ‘conservation’ in the Act not only denotes preservation of forests, but a lso ‘afforestation’ (see M/s Anupama Minerals v. Union of India, AIR 1986 AP 225). This is parti cularly relevant in the context where forest areas have been used over the years for various developm ental and commercial purposes. FCA was the result of the realisation that the objective of ecological balance cannot be achieved just through protection of existing forests; it requires further proactive afforestation measures.

FCA shifts the power to contro l forests from state governments to the Central Government. It makes prior approval of the Central Go vernment mandatory for the use of forest areas for non-forest purpose. The expression ‘non-forest pur pose’ means breaking up or clearing of forest for cultivation of tea,coffee, spices  spices,  rubber,  palms,  oil-bearing  plants,  horticultural  crops  or  medicinal  plants.

However, clearing of forest for reafforestation or any work for conservation and management of forest and wildlife does not amount to ‘non-forest purpose’. FCA makes prior approval of the Central Government mandatory for state governments to de-notify a reserved forest.

FCA lays down the procedure t o be followed in the implementation of the law. The MoEF is required to refer every proposal to the Forest Advisory Committee (FAC) constituted by t he central government under section 3 of the FCA, which advises the MoEF whether the forest land sh ould be allowed to be diverted. FAC can also specify conditions and restrictions in such permissions for diversion. While considering the proposal for conversion of forest area for non-forest purpose, the FAC considers factors such as whether the forest land to be converted is a part of a protected forest, whether the use of the land is for agricultural purpose s or for rehabilitation of persons displaced due to any river valley or hydro-electric project (rule 7 of Forest Conservation Rules, 2003).

6. Protection of Forests in In dia: Role of the Judiciary

The judiciary has played crucial role in expanding the scope of forest laws in India through judicial interpretations. Some of the key areas where the higher judiciary has made notable contributions are discussed below.

6.1. Defining the term ‘forest’

The Supreme Court of India has played an important role in widening the meaning of the term ‘forest’ for the purpose of forest laws. In one of the orders issued in T.N. Godavarman Th irumulpad v. Union of India, WP (Civil) No. 202 of 19 95 (the Godavarman case), which is reported in AIR 1997 SC 1228, the Court held that the term ‘forest’ must be understood according to its dictionary meaning and that it covers all statutory recognised forests. It was further explained that the term ‘for est land’ will not only include ‘forest’ as understood in the dictionary sense, but also any area recorded as a forest in the government record irrespective of ownership. The order of the Supreme Court w as in the context where state governments were interpre ting the meaning of the term ‘forest’ narrowly to include only reserved forests and going ahead with d e-notification of other forests for non-forest p urposes. The Supreme Court’s intervention brought all forests within the purview of the term ‘forest’ for the purpose of the FCA and thus arguably prevent ed such misuse of the legal provisions by states (Divan & Rosencranz, 2001: 304).

6.2. Regulation of activities

The Godavarman case is a land mark in the context of the legal regime for protection and conservation of forests in India. The Supreme Court radically re-oriented licensing and functtioning of forest-based industries. Subsequently, more than 2,000 interlocutory applications have been admitted, and several hundred orders have been issued , many with far-reaching implications. The case is still pending before the Supreme Court.

In the process, the Court has go ne far beyond its traditional role as the interprete r of law, and assumed the roles of policymaker, lawmaker and administrator (Rosencranz & Lele, 2008: 11). Through a series of orders, the Supreme Court of India controlled or prohibited a number of act ivities affecting forest ecology. It was held that runningg of saw mills and mining of minerals are non-fo rest purposes requiring permission from the Central Go vernment. The Supreme Court banned felling of trees in the tropical ever-green forests in the State of Arunachal Pradesh. Movement of cut trees f rom any of the seven North-Eastern states to any other states was also banned.

In another case, Sushila Saw M ills v. State of Orissa, AIR 1995 SC 2484, where the constitutional validity of the Orissa Saw Mills and Saw Pits (Control) Act, 1991 which bans saw mills within a distance of 10 kms from reserved forests was challenged, the Court held that pr otection of forests is in public interest and therefore it is not violative of Article 14 of the Constitution and it is not arbitrary.

6.3. Policy and institutional roles

The Supreme Court has also us ed its power to interfere with policy and administrative matters. For example, in the Godavarman ca se, after finding the Indian Railways to be using wooden sleepers for laying tracks, the Court directed it to file an affidavit giving full particulars abou t the quantity of wood used, its sources and the measur es taken to find alternatives.

In T.N. Godavarman Thirumulpad v. Union of India, (2006) 1 SCC 1, the Sup reme Court introduced afforestation schemes. The Cour t held that when forest land is used for non-fore st purposes, provisions must be made for compensatory afforestation. The logic was that diversion of forrest land for non-forest purposes leads to tangible and inntangible losses. In this case, the Court went on to suggest that the user agencies ought to pay compen sation on the basis of the net present value of the land diverted for afforestation purposes.

The judiciary’s key contributionn, from an institutional point of view, is the setting up of the Central Empowered Committee (CEC). In 2002, pursuant to an order of the Supreme Court, the CEC was established by the MoEF under section 3(3) of the Environment (Protection ) Act, 1986. The key functions of the CEC are to exa mine the interlocutory applications, reports and affidavits filed by the states in the Godavarman case and to submit their recommendations before t he Court. The CEC is entrusted with the power to de cide complaints filed by individuals regarding a ny steps taken by the government or compliance with the orders passed by the Supreme Court.

The reports of the CEC have played a crucial role in the functioning of thee Supreme Court. For example, in T.N. Godavarman Thirumulpad v. Union of India, MANU/SC/ 8100/2006, when the Supreme Court faced the question whether the grant of lease by the Governme nt of Chhattisgarh to a company concerned a forest lan d or not, the Court relied on the report of the CEC and decided that the land in question was not forest land and therefore, prior approval from the Cen tral Government is not needed.

The creation of the ad-hoc Co mpensatory Afforestation Fund Management a nd Planning Authority (CAMPA) was another instance where the Court played a proactive role. Even though the MoEF issued a notification in 2004 for establishing CAMPA, it had not been made operation al. In this context, the Supreme Court, through an ord er on 5 May 2006 in the Godavarman case, constituted the ad-hoc CAMPA. The Supreme Court has also actively interfered on the issue of expenditure of money received by states from user agencies to whom permissions were granted for using forest land for non-forest purposes. For example, in a recent order in the Godavarman case (12 March 2014), the Supreme Court made its leave mandatorry for transferring or utilising the money available with the ad-hoc CAMPA (http://judis.nic.in/supremecourt/imgs1.aspx?filename=41309).

6.4. Role of judiciary: A critiquee

The role played by the judiciary has been criticised on many grounds. First, it haas been argued that the judiciary got involved in the mic romanagement of the forests in India. The activism of the judiciary has gone to the level of assuming re gulatory and legislative functions such as defining the value of forests across the country, banning the transport of timber, determining the location of s awmills outside forest lands, or giving permission for pruning of shade trees in coffee plantations.

Second, the critique highlights that the judiciary has created quasi-executive st ructures like the CEC that function in a manner that is at complete odds with the separation of pow ers, since the CEC is nominated by and reports only to the Court. This may amount to bypassing of the powers of the executive and the establishment of a monopoly over the forest law regime. Th is can create problems because the MoEF has the powe r, under FCA, to constitute the FAC (Rosencranz & Lele, 2008: 13).

Third, the manner in which the Supreme Court has addressed the issue of forest encroachments led to a violation of the rights of tribals and forest dwellers. When the Supreme Court ad dressed the question of forest encroachments, the Co urt-appointed amicus curiae highlighted that states were allowing encroachments despite the Co urt’s directives. Taking cognisance of this situation, the MoEF unilaterally issued a directive on 3 May 2002 to all states requiring that they sum marily evict all illegal encroachers on forest land, and t o complete the process by 30 September 2002. T his directive was both impractical, given the magnitude and complexity of the encroachment issue,, and also completely contradictory to the MoEF’s earlier detailed guidelines (issued in 1990) on how such matters should be dealt with. The MoEF circular led to a series of evictions violating the rights of tribals and forest dependent communities (Rosencranz & Lele, 2008: 13).

Fourth, it has been highlighted that in many cases, the directions of the Supreme Court are both unsound and impractical and la ck an understanding of the complexities of cond itions and laws across such a diverse country. Rationalising the boundaries of ‘forests’ may require notifying some revenue lands and de-notifying some foreest lands. However, the Court does not go beyond the notified forests.

7. Summary

Law relating to forests in India has undergone significant changes over time thr ough adoption of new laws and judicial interventions. The rampant deterioration of forests in India under the Indian Forest Act, 1927 prompted the centra l government to strengthen its role in forest g overnance through the adoption of the Forest (Conservation) Act, 1980. This Act makes central go vernment’s permission mandatory for diversion of forest for non-forest purposes. The Indian judiciary, particularly the Supreme Court, has also playe d significant roles in the development of fore st laws in India. For example, the Supreme Court has treated the Godavarman case as a continuing ma ndamus and continues to monitor forest governance in a big way which also includes establishment of i nstitutional mechanism such as the CAMPA. However, the role played by the Indian judiciary in the field of forest governance needs to be analysed critically from the point of view of the ability of the judiciar y to micro manage the forests in India as well as from t he point of separation of power as envisaged under the Constitution of India. Further, the whole legal reegime on forests needs to be assessed not just from the point of view of its contribution to the conserva tion of forests, but also from the point of view of its implications on tribals, forest dwellers and forest dependent communities.

References

• Bose, Purabi and others . “Forest Governmentality’: A Genealogy of Subject-making of Forest-dependent ‘Scheduled Tribes’ in India.” Land Use Policy 29 (2012): 664 -673.
• Divan, Shyam and Arm in Rosencranz. Environmental Law and Policy in India. New Delhi: Oxford University Press, 2001.
• Forest Survey of India,  MoEF, India – State of Forest Report, 2013.
• Leelakrishnan, P. Enviro nmental Law in India. Gurgaon: LexisNexis, 3rd edn., 2008.
• Rosencranz, Armin and Sharachchandra Lélé. “Supreme Court and India ’s Forests.” Economic and Political Weekly 43 , no.5 (2008): 11-14.
• Sivaramkrishna, Shashi and Jyotish, Amalendu. “Unearthing the Roo ts of Colonial Forest Laws: Iron Smelting and the State in Pre and Early-Colonial India.” E conomic and Political Weekly 48, no.5 (2013): 39-49.