FOREST LAW IN INDIA- A CRITICAL ANALYSIS

(K.R MANGALAM UNIVERSITY, SOHNA ROAD,GURUGRAM)

(ANIRUDH GUPTA)

ABSTRACT

This paper focuses on the ‘Forest Law in India: Policy and Assessment’. Apart from dealing with the Indian Forest Act, and the development of the other allied acts in relation to the environment and forests in particular, the paper also intends to focus on the formation of a distinct environmental jurisprudence in relation to forests and its relationship to the dynamic qualities of a democratic polity in India. The analysis will also be emphasizing on how the environment came to be a legal object in India over the last century.

Forest policies in India have recently been a subject matter of prolonged discussion among social scientists including anthropologists, sociologists, economists, and historians. However, since most of the studies view the formation and evolution of forest policies in colonial India in isolation, they fail to relate it both with the broader their legacy in the post-colonial era and the historical issues of the day. Part of the failure is rooted in the absence of a detailed study of the evolution of forest policies in the regional context from the multiple ideas and legal discourses involved in the process. In the light of what has been stated above, the paper also seeks to elaborate upon the Colonial Legacy of the Forest Policies in India.

Despite the legal provisions for the functioning of expert bodies like the National Board of Wildlife and the Forest Advisory Committee, the forest bureaucracy disdains the experts and often overrides scientific evaluations. The training course of the India Forest Service too lacks a social science component that can help new foresters understand the social ramifications of forest-related issues. The paper will emphasize on the issue, apart from the others. So as to give a clearer view of the policy prevailing in the nation since a long time, in relation to Forest Law and policy, this paper will also be delving into different events such as the Chipko Movement incident and the Sacred Groves. An emphasis will also be laid upon various case laws

INTRODUCTION

India is the seventh largest country in the world occupying 2.4 percent of the world area. However, only 1.8 percent of forests cover lies in India. In spite of recent efforts to increase forest cover through reforestation, being carried out mainly under Compensatory Afforestation Management and Planning Authority (CAMPA), India’s forests are in a devastated condition, with just over 21 percent of India under forest cover in 2007. Dense forests cover only 12 percent of land. The policy requirement is that the forest cover should be 33 percent of the area of the country, and all of this should be closed forest. However, we are far from achieving this figure.

Forests in India are under immense pressure today and are reducing at an alarming rate due to the rapid population explosion of human and livestock, over-utilization and exploitation of forest resources, conversion of forest land for non-forestry purposes, expansion of agriculture and other illegal activities such as illegal logging, poaching and unauthorized occupation of forest land. The paper would also be dealing with this issue, apart from sustainable development and precautionary measures in relation to forests. Until before 1976, forest and wildlife were State subjects in the Indian Constitution. The forest departments are regulated forests in accordance with the Forest Act of 1927. Recognizing the significance of forests and wildlife, the 42nd Amendment to the Constitution deleted both from the State list and placed them in the Concurrent list, bringing them under the purview of both the Central and State governments. Now, Centre and States may legislate on issues pertaining to forests and protection of wildlife.

 

 

 

 

 

 

ANALYSIS

This paper seeks to lucidly analyze, explain and elaborate upon the topic at hand by means of the following sections which deal with different perspectives and cases in relation to Forest Law and Policy, that will be instrumental in providing a multifold view into the former:

1. Colonial Legacy of Forest Policies in India
2. Environment, Forest Law, and Policy in India
3. Forests: Law vs. Policy
4. The Impact of National Policy on the Conservation and Management of the Sacred Groves in India
5. The rights of nature: conferring legal parenthood on natural objects
6. Positive effect of the Chipko Movement on the development of Forest Law and Policy in India
7. Forest Conservation: A Leap Forward
8. The Godavarman Cases: the High-water Mark in Forest Protection

1. Colonial Legacy of Forest Policies in India

Forest policies in India have recently been a subject matter of prolonged discussion among social scientists including anthropologists, sociologists, economists, and historians. However, since most of the studies view the formation and evolution of forest policies in colonial India in isolation, they fail to relate it both with the broader their legacy in the post-colonial era and the historical issues of the day. Part of the failure is rooted in the absence of a detailed study of the evolution of forest policies in the regional context from the multiple ideas and legal discourses involved in the process. This section identifies and analyses the colonial legacy of foreign policies, especially in the later stages of their development.

It can be presumed here that the colonial watershed was an important marker in the evolution of forest policies in India, when compared with the pre-colonial era. Perceptions of the state towards the forests began to change radically from the arrival of the British colonial interests in India in the late eighteenth century, “when forests were increasingly viewed as an asset of the state with great commercial potential.”.

The saga of forest legislation in colonial and post-colonial India, when studied in a long time framework, may highlight a few general issues, some of which are repetitive and some historically unique. Four such broad issues are as follows:

1. The material interests of the state, especially the wood requirements for ship-building, railways, government departments and industries, were the main driving force for the forest policies of the colonial state, and for a considerable degree even for the national state. The conflict and collaboration of private bodies came largely in the context of sharing of profits.
2. There is a long history of the desiccationist discourse both in the colonial and post-colonial periods. While in the colonial period, conservation of forests was often linked with the change of rainfall and climate, it has been increasingly connected in post-colonial era with the wider issue of environment and sustainability.
3. In the forest policy formulation process, the colonial bureaucracy was often in conflict with their respective departments. The conflict between the forest and revenue departments in colonial India is well known. Agriculture and Industry’s priorities are also often emphasized in the post-colonial period. Much of the legal debates and discourses in the framing of forest policies should be read in this context.
4. Different kinds of access of people, both residing in the forests and in the neighboring villages, are age-old. Imposition of regulation for the reserved and protected forests of various kinds and limitation of the rights and privileges of people in other forests naturally led to sporadic conflicts between the state and the communities. However, the involvement of communities in the protection and management of forests – the so-called communal forests in the past and social forests – is sometimes felt necessary from the point of view of state, dominant groups at society and people at large. The impact of policies, communities and participation requires careful investigation in this context.

 

 

 

 

 

2. Environment, Forest Law, and Policy in India

The Government of India Act of 1935, and the Constituent Assembly Debates, of 1947-1950, added a key dimension to the development of about the environment and its government in India by inserting them other debates about the shape of Indian federalism. The constituent assembly debates are interesting in this context. When it came to natural resources and rural development, or, for that matter, health and sanitation, these debates were mostly about which level of government would administer what sectors of the economy and society as the prime mover in those sectors. Arguably, the vision of federal government that animated deliberations leading to the framing of the constitution favored states’ empowerment in the management of land and other aspects of human development.

Only the sharing of state rivers invited some consideration of central administration. The effects can be seen till this day in the legislative history of forests since independence. It took the Forest (Conservation) Act, and the Forest Rights Act, to abrogate the powers vested in states, each in very different and with contrasting intent. The former operated in the name of central vision of the process and purpose of forestland conversion for other goods, and the latter worked in the name of ensuring local rights to forestland were effectively identified and protected, especially for Scheduled Tribes.

Association is kin to mobilization and associations can strengthen and multiply each other as social phenomena. Such indeed was the case in India 1960s shaded into the 1970s. At one level political parties proliferated, another level so did NGOs. Along with these trends varied social movements lured the imagination and energy of urban middle classes and varied groups across the countryside. Courts entered this ferment through their own brand of activism, with the initiation of public interest litigation soon after the political Emergency of 1975-77, and they used their activist persona to focus on socioeconomic rights and the quality of life. “The judges began incorporating rights health, food, education, shelter, and so forth, into the fundamental rights equality envisaged in Article 14 of the Constitution of India and life and liberty in Article 21 “. In their growing body of rulings, many originating in Public Interest Litigations (referred to hereinafter as PILs), a clean environment, sanitation, and potable water became a part of the right to life while getting industries like brick kilns, rice mills, and stone crushing units to move out of residential and urban areas was deemed crucial to its peaceful existence and quality. If the first cases (from the early and mid-1980s) focused more on pollution; by the 1990s the implementation of the Forest Conservation Act (1980) became the vehicle for a series of sustained interventions and the creation of a governance apparatus that is of particular interest in the landmark cases of MC Mehta v. Union of India, Indian Council for Environmental Legal Action v. Union of India; and Environmental Awareness Forum and TN Godavarman Thirumalpad v. Union of India. Through the two cases, now popularly known as the Godavarman and the Council for Environmental Law case, both concerned with the implementation of the Forest Conservation Act (1980), the Supreme Court created a forum for continuing intervention and governmental innovation that is becoming an ever more tangled web of federal relations on the one and citizen rights and aspirations on the other. The key orders passed on December 12, 1996 and November 13, 2000 prevented states and even statutorily authorized federal agencies from de-notifying (i.e. opening up to private exploitation) forests and parks without due review by the courts. The Godavarman case, in particular, made use of the public law instrument of continuous mandamus,10 a fairly uncommon constitutional jurisdiction available to it in the Constitution of India.

As an outgrowth of these rulings, and drawing on powers vested in the Environment Protection Act (1986), the Court also moved to constitute a series of high-powered committees, authorities, and, in May 2002, the Central Empowered Committee, to oversee the implementation of court orders and interim rulings emanating from the suite of litigation folded into the growing and segmented portfolio constituted by the two originating cases. This CEC, consisting of three federal government officers, and two NGO representatives, was also authorized to dispose of petitions that would implement court orders and send reports to the bench on larger issues as needed. Arguably such outgrowths of judicial activism, and government responses, including special judicial mechanisms like the National Environmental Appellate Authority, are an expression of how “quality of life” questions have shaped the formation of new state spaces – institutional hybrids combining judicial oversight and executive accountability, and new notions of citizenship.

 

 

 

 

 

1. Forests: Law vs. Policy

While mega-projects involving large-scale destruction of even natural forests are readily cleared by the central government, the provisions of the Forest (Conservation) Act of 1980, and the amendment of it enacted in 1988 are invoked to refuse clearance to small projects directly benefiting adivasis and other rural poor.

It is often said that in the case of the government of India the right hand does not know what the left hand is doing. It now appears that in the case of forest development the right hand is undoing what the left hand is trying to do. The Hon’ble prime minister, while addressing a conference on Panchayat. Raj and Tribal Communities, announced that a committee will be appointed to consider the Forest (Conservation) Act of 1980 and the recent amendment to the same made in 1988. It is surprising to note that a resolution on National Forest Policy was also passed by Rajya Sabha in December 1988. After independence the government of India adopted the National Forest Policy Resolution on May 12, 1952. It was stated that the National Forest Policy should be based on paramount national needs that were listed as follows:

(1) need for evolving a system of balanced and complementary land use,

(2) need for checking,

(a) denudation in mountainous regions,

(b) erosion on river banks and invasion of sea sands on costal tracts,

(3) need for amelioration of physical and climatic conditions,

(4) need for ensuring increase in supplies of grazing, small wood and firewood,

(5) need for sustained supply of timber and other forest produce to defense, communications and industries, and

(6) need for the realization of the maximum actual revenue in perpetuity consistent with the above needs.

3.1. People’s rights over forests

Thus, there was not much mention of peoples’ rights over forests. On the contrary, it was stated that, if undue weight was given to the consideration of entitlement of neighboring areas to a prior claim over forest. and its produce and a preferential claim of agricultural requirement over forests lands, it would lead to loss of natural well-being in the long run. It was also stated that the use of forest produce by the village communities in the neighborhood of a forest should in no event be permitted at the cost of the national interest and that the scientific conservation of a forest necessitated the regulation of the rights and privileges of the user, however irksome such restraints may be.

3.1. Eventual Classification of Forests

Forests were classified as protective forests, national forests, village forests, and tree lands as a result.

• The protective forests were those on river banks, hill slopes, etc., where the forest cover was dictated by purely protective physical considerations, such as conservation of moisture, prevention of corrosion, and control of rushing torrents and floods.
• The national forests constituted the basis of India’s wealth that yielded valuable timber indispensable for defense, communications, and vital industries.
• The village forests were basically fuel forests intended to serve the needs of the surrounding villages in respect of small timber for agricultural and housing implements, firewood, leaves for fodder and manure, grazing, .etc. These forests were to be managed mainly to meet the needs of the local population.
• Tree lands were basically for ecological purposes. The forest department was advised to popularize the creation of tree lands in agricultural areas.

 

 

 

1. The Impact of National Policy on the Conservation and Management of the Sacred Groves of India

India is home to thousands of community – protected forests, called sacred groves. Sacred forests or groves are sites that have cultural or spiritual significance to the people who live around them. These areas may also be key reservoirs of biodiversity. In India, most sacred groves are managed by a community group, not by a government agency. They are often private or community land, not formal protected areas or parks. This poses an interesting challenge in terms of future management and possible policy relating to the sacred groves. On the international level, organizations such as the International Union for the Conservation of Nature and UNESCO have created guidelines for management of sacred sites. On the national level, India’s past Forest Acts and recent Forest Rights Act have relevance to the sacred groves. Local differences in land tenure also affect the groves. Ethnographic research conducted in 2009 and 2010 in the states of Meghalaya and Karnataka, India, evaluated the historic and current management and beliefs associated with sacred forests. Cultural change and pressure to use natural resources within the groves is leading to reduction of these forest areas. In the future, a creative combination of policy approaches to conserve groves that respects their spiritual values is recommended.

The Forest Act of 1878 (a revision of the 1865 act) designated state-controlled forests as either reserved forests, which were managed and surveyed by the Forest Department and had restricted access, or protected forests that were unsurveyed and remained open for limited use. Under the British in India, the Forest Department “nationalized and brought under its control all forested land”. Sacred Groves were protected through social fencing and local community traditions, not by legal status or government protection. Social fencing in relation to sacred groves is when community cultural practices maintain and create a virtual boundary that is recognized in addition with the groves.

 

 

 

 

1. The Rights of Nature: Conferring Legal Personhood on Natural Objects

Mankind, or most of it, has always regarded nature, as an instrument of property rights. For most of men, it is a commodity, of varying value, whose mere employment is to be bought and sold. The frightful debasement of natural environment in past century, has obligated some to re-question this attitude. These some advocate a novel theory, that of rights of nature. This thesis promotes a structure of law which grants legal personhood, and in turn, certain rights on the nature. This leads to protection of environment as an entity with rights. Currently, legal systems, only protect a man, if his rights are damaged by environmental degradation, they do not protect the environment itself. `Rights of Nature’ is a philosophy, rather easy to understand. Simply put, it advocates legal personage for the environment, and ecosystems, which impliedly includes forests. A legal person is any entity which the law regards as capable of rights or duties. The fundamental of characteristics, of a legal person is that that such a person is subject of rights or duties. If an entity is conferred either a legal duty or a legal right, it is recognised as a juristic person. The specifics of legal personhood are subject to adequate controversy, discussions, and dialects.

The concept of legal personhood has always been applicable beyond human beings: corporations, the state, even temple idols, etc. are non-human entities, yet they are considered as “persons” for the law.

‘Rights of nature’ extend legal personality to the natural environment. It argues that trees, rivers, lakes, mountain ranges, entire ecosystems, can have a locus standi in a court of law. The concept of juristic persons has always evolved, initially even all even human beings were not protected by law, societies which possessed the despicable institution of slavery did not consider slaves to be persons. The notion changed according to time, law later accepted corporations as humans. As society grows, as our moral development reaches new heights, the conception of legal person expands. Law resonates the societal and moral change by conferring personhood on ‘entities: prisoners, foreign citizens, children, women, corporations were gradually added to the list of juristic persons when it was necessary, or when it was overdue. The promoters of rights of nature claim that our societal, moral, and legal development is at a point, where the natural environment should be recognized as a legal entity.

This concept should be distinguished from normal environmental litigation. Currently, a person must plead an indirect violation of his or her rights, or a conflict with greater public interest due to some developmental or commercial activity, in an environmental suit. Therefore, it is the petitioner’s right or his claim of public interest that substantiates the proceedings.

1. Positive Effect of the Chipko Movement on the development of Forest Law and Policy in India

The Chipko Movement contributed immensely to international and national ecological movements. According to Shekhar Patnaik, a Chipko activist now teaching history at Kumaon University in Nainital, “A distinction is necessary between what happened locally and the national and international movement that grew out of it. Chipko put forests on the political agenda in the country. The Forest Conservation Act of 1980 and the very creation of the environment ministry are due to the consciousness created by Chipko.”.

Wooden Furniture Work and Ors. vs. The Government of Andhra Pradesh and Ors.

The forests in India are dwindling. An aerial survey by Indian Space Research Organisation in 1974 found many of the Reserve Forests sans trees. The Satellite photographic showed tree growth in 1.5 million hectares was lost every year. The-establishment while it prescribed 33 per cent of the land is to be covered by green belt, curiously the records showed only 23 per cent of the land was covered by forests. On physical verification in 1975 forests were found in less than eleven per cent of the total land The situation discovered was rather alarming Then followed an intense activity to preserve trees. Simultaneously strenuous effort was made to stop illicit felling of trees. In Andhra Pradesh there is no “Chipko” movement Effort however is made to streamline the statutes, to preserve trees. In this regard on May 23, 1985 by G. O. Ms. No. 234 Andhra Pradesh Saw Mill Regulations of 1969 were radically amended.

It can be seen in the above case-law that the court considered the Chipko incident, and this in turn was instrumental in directing the mind of the court towards a just outcome and judgement.

 

 

7. The Godavarman Cases: The High-water Mark in Forest Protection

The idea of sustainable development, i.e., the balance between environment and development, had its influence on the judiciary in interpreting the provisions of laws relating to the forests. Various dimensions of forest protection were examined by the court. T N Godavannan Timmulpad v. Union of India is a remarkable illustration of the concept of sustainable development. The pronouncements of the apex court in this regard can be summarised as follows:

(i) ‘Forest’ includes the area noted in the government records as forest, irrespective of its ownership.

(ii) Mining licence in such an area without prior approval is violative of the Forest Conservation Act. All on-going activities under such invalid license must cease. The state governments have to take necessary remedial measures which is a mandatory guideline under the former.

(iii) Running saw mills of any kind is a non-forest activity. All saw mills within a distance of 100 kilometers from the border of the state of Arunachal Pradesh are to be wound up.

(iv) Responsibility is imposed on each state government to report on the number of saw mills, actual capacity of the mills. proximity to the nearest forest and their sources of timber.

(v) Complete ban on felling of trees in the tropical wet ever-green forests in Arunachal Pradesh is essential ‘because of their significance to maintain ecological balance needed to diversify biodiversity’. Felling: of forest in other states except in accordance with working plans is suspended.

(vi) Movement of the trees cut down and also timber is banned with the exception of the certified timber that is immensely required for the various defence and military purposes.

(vii) Each state government should constitute a certain number of expert committees to identify and determine the forest areas. denuded forests and areas covered by plantation trees and to assess whether how much the sustainable capacity of the forest qua saw mills is.

(viii) In the state of Jammu and Kashmir. no private agencies should deal in timber or in felled trees. No permission and approval should be given for saw mills that are situated within a distance of eight kilometers from the boundary of demarcated forest area.

(ix) ln Tamil Nadu, the tribal people who are part of the social forestry programme in respect of patta lands other than forests may continue to grow and cut trees only in accordance to the government scheme and in accordance with the related laws applicable.

(x) Plantations are not allowed to expand further and encroach upon forests by way of clearing.

The Godawarman case came back within four months for review of the follow up action as directed by the court. Interestingly, the court proceeded to constitute a High-Powered Committee to oversee the strict and faithful implementation of its orders in the North Eastem region. Directions were given that the committee should prepare an inventory of all timber. whether in transit or lying in mills and to examine whether the use or sale of timber or timber products could be permitted through the state forest corporations under its overall supervision. Collection of minor forest produce, including bamboo, could be exempted. This exception is a significant holding of the court. Unlicensed saw mills and veneer and plywood industries in the states of Maharashtra and Uttar Pradesh were to be closed. The plantations were ordered to deliver all shade trees felled in janmam areas in Tamil Nadu to the state government. However. plantations were permitted to cut down the fuel trees subject to certain restrictions. The court did not consider any chance to allow the plantations any further cleaning in janmam lands.

The pronouncements in the Godavarman cases are important in many respects. Under the wildlife protection law, trade and commerce of wild animals. animal articles and trophies could be done only through a state corporation. The Godavarman cases seem to suggest that sale of timber and felled trees shall also be made through state corporations and not through private channels. It is significant that the apex court continued to monitor the activities in a series of Orders subsequently. Proliferation of wood-based industries is feared to the main cause of forest depletion. Any industrial venture in an area must be subject to the maintenance of environment and ecology, and must enter to the demands of bonafide local needs.

 

CONCLUSION

The original intention of the framers of the Forest Act was to safeguard the forests from feudal and imperial interests of the state. An analysis of the above discussed Godavarman Thirumalpad Case shows how the courts tailored the needs of the changing times into the prevailing meachanism. The role of judiciary played in protecting forest and wildlife, by leaving the core areas uncovered by law as fields appropriate for legislative action rather than for judicial formulation, is significant. Besides, emphasizing the importance of forests, the courts endeavored to protect the rights of tribal people and persons affected by development projects, who form part of the forest environment. Relying on the ‘public trust’ doctrine to protect and preserve forest and natural resources, they tried to enforce the concept of sustainable development to solve the environment-development dilemma. The decisions bear ample testimony to the increasing judicial concern for creative purposive interpretations of the law, with a view to protecting the forest and wildlife environment.