FOREST CONSERVATION ACT, 1980

 Introduction

 Historical Perspective

 British Period

 Forest Act, 1927

 Forest (Conservation) Act, 1980

 Judicial decisions

 Conclusion

Introduction

Forests are a major natural resource and are also recognised as a colourful expression of nature.
They are also recognised as guardians and protectors of the wildlife of the country. Forests are
valued not only for various kinds of flora and fauna but also for minerals, watersheds, cradles of
rivers, check on desertification, as an important recreational resource and for their scenic beauty.
Therefore, management of forests is an essential aspect of the protection of the environment. It
also becomes more important as the trees are known as pools or banks of carbon dioxide. Cutting
of trees releases carbon dioxide into the atmosphere which has largely contributed to the
greenhouse effect or global warming. This global warming, in turn, has resulted in the melting of
ice-caps and rise in the sea level; a change in a climate patterns has also been experienced all over
the world.

During the last century, forests have been cut at rates 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 per cent of the total land area as against the accepted ideal of 33 per cent in India and over
40 per cent internationally. Thus, vegetation cover is much less than required.

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Historical perspective

The Rigveda and the other Shrutis make it abundantly clear that often people saw the images of
God in nature (trees, plants, animals, etc.) and treated them as divine objects with great devotion
and love. Some trees were declared as sacred (e.g., peepal, banana, tulsi, amla, etc.) and this, in
turn, automatically worked to protect the forests from the onslaught of mankind.

Mastya Purana: one pond is equal to 10 wells, one son is equal to 10 ponds and one tree is equal
to 10 sons. Manusmriti declares the cutting of green trees an “offence”. Kautilya has provided in
his Arthashastra that it is the duty of the king to guard, upkeep and plant forests for the kingdom.
He also prescribes that it is the duty of the king to plant forests which grant safety to animate and
inanimate objects. Emperor Ashoka is also known for his work to protect forests and for planting
trees along public roads. The edicts issued by him include “forests must not be burned”, and “trees
shall be planted on both the sides of the roads”.

British Period

During British period forests were treated as a source of revenue for the government and not as a
natural resource. During this time most of the forests were destroyed in the name of agriculture
and the need for more land for cultivation.

The first Forest Act was enacted in 1865 and the Forest Department was established. The main
purpose of this Act was to facilitate the acquisition of the Indian forest areas to supply timber for
railways and to establish the claim of the State on the forest land. But the Act did not have
provisions to protect the existing rights of the people living in the forests. Basically, this Act was
meant to regulate forest exploitation, and the management and preservation of forest resources.

Indian Forest Act, 1878 classified forests into three types.

• The first category was reserved forests meant for- 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.

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 • The third category was village forests which implied that any revenue from village
forests was meant for the village communities managing such forests.

Forest Act, 1927

To make forest laws more effective and to improve the Forest Act, 1875, a new comprehensive
Forest Act was passed in 1927 which repealed all the previous laws. The Act consists of 86 sections
divided into 13 chapters. The main objects of the Act are to consolidate the laws relating to forests)
regulation of and the transit of forest produce; and to levy duty on timber and other forest produce.
The term “forest” has not been defined in the Act.

Forest (Conservation) Act, 1980

• 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.

FCA shifts the power to control forests from state governments to the Central Government. It
makes prior approval of the Central Government mandatory for the use of forest areas for non-
forest purpose. The expression ‘non-forest purpose’ 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 is mandatory for state governments to de-notify a reserved
forest.

Banwasi Seva Ashram v. State of UP

Raised an important question relating to the right of the state notify an area as reserved forest and
its effect on Adivasis already living there. State pleaded that the forest land had been acquired to
set up thermal power station and provide cheaper electricity to people. The court declared that the
land which had been acquired already been acquired would not be part of writ petition FCA lays
down the procedure to be followed in the implementation of the law. The MoEF is required to

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refer every proposal to the Forest Advisory Committee (FAC) constituted by the central
government under section 3 of the FCA, which advises the MoEF whether the forest land should
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 purposes or for rehabilitation of persons displaced
due to any river valley or hydro-electric project.

Defining the term ‘forest’

In Godavarman case 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 ‘forest 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 was in the context where state governments were interpreting the meaning of the
term ‘forest’ narrowly to include only reserved forests and going ahead with de-notification of
other forests for non-forest purposes. The Supreme Court’s intervention brought all forests within
the purview of the term ‘forest’ for the purpose of the FCA and thus arguably prevented such
misuse of the legal provisions by states.

• The expression ‘non-forest purpose’ means breaking up or clearing of forest for cultivation
of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal
plants. Using of forest for re-forestation or any work for conservation and management of
forest and wildlife does not amount to ‘non-forest purpose.

• non-forest purpose do not include any work relating or ancillary to conservation,

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Regulation of activities

The Godavarman case is a landmark in the context of the legal regime for protection and
conservation of forests in India. The Supreme Court radically re-oriented licensing and functioning
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.

The Court held that when forest land is used for non-forest purposes, provisions must be made for
compensatory afforestation. The logic was that diversion of forest land for non-forest purposes
leads to tangible and intangible losses. In this case, the Court went on to suggest that the user
agencies ought to pay compensation on the basis of the net present value of the land diverted for
afforestation purposes.

The judiciary’s key contribution, 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 examine the interlocutory applications, reports and affidavits filed by
the states in the Godavarman case and to submit their recommendations before the Court. The
CEC is entrusted with the power to decide complaints filed by individuals regarding any steps
taken by the government or compliance with the orders passed by the Supreme Court.

When Supreme Court faced the question whether the grant of lease by the Government of
Chhattisgarh to a company concerned a forest land 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 Central Government is not needed. The creation of the ad-hoc Compensatory Afforestation
Fund Management and 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 operational. In this context, the Supreme Court, through an order
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.

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In Godavarman case, the Court has gone far beyond its traditional role as the interpreter of law,
and assumed the roles of policymaker, lawmaker and administrator. Through a series of orders,
the Supreme Court of India controlled or prohibited a number of activities affecting forest ecology.
It was held that running of saw mills and mining of minerals are non-forest purposes requiring
permission from the Central Government. The Supreme Court banned felling of trees in the
tropical ever-green forests in the State of Arunachal Pradesh. Movement of cut trees from any of
the seven North-Eastern states to any other states was also banned.

In another case, Sushila Saw Mills 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 protection of forests
is in public interest and therefore it is not violative of Article 14 of the Constitution and it is not
arbitrary.

Role of judiciary: A critique

The role played by the judiciary has been criticized on many grounds.

First, it has been argued that the judiciary got involved in the micromanagement of the forests in
India. The activism of the judiciary has gone to the level of assuming regulatory and legislative
functions such as defining the value of forests across the country, banning the transport of timber,
determining the location of sawmills 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 structures like the
CEC that function in a manner that is at complete odds with the separation of powers, 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. This can create
problems because the MoEF has the power, under FCA, to constitute the FAC.

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 addressed
the question of forest encroachments, the Court-appointed amicus curiae highlighted that states
were allowing encroachments despite the Court’s directives. Taking cognizance of this situation,

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the MoEF unilaterally issued a directive on 3 May 2002 to all states requiring that they summarily
evict all illegal encroachers on forest land, and to complete the process by 30 September 2002.
This 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.

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

Conclusion

The rampant deterioration of forests in India under the Indian Forest Act, 1927 prompted the
central government to strengthen its role in forest governance through through the adoption of the
Forest (Conservation) Act, 1980. This Act makes central government’s permission mandatory for
diversion of forest for non-forest purposes. The Indian judiciary, particularly the Supreme Court,
has also played significant roles in the development of forest laws in India. For example, the
Supreme Court has treated the Godavarman case as a continuing mandamus and continues to
monitor forest governance in a big way which also includes establishment of institutional
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
judiciary to micro manage the forests in India as well as from the point of separation of power as
envisaged under the Constitution of India. Further, the whole legal regime on forests needs to be
assessed not just from the point of view of its contribution to the conservation of forests, but also
from the point of view of its implications on tribals, forest dwellers and forest dependent
communities.

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