Assignment

Environment Law Assignment

FOREST LAW IN INDIA :

Policy and Assessment

Submitted by:
Name- Anushka Raj
Enrl no. - A3211120177
BA, LLB (H) Sec C
Submitted to- MS Richa Yadav
 TABLE OF CONTENT

1. Environment, Forest Law, and Policy in India

2. Forests: Law vs. Policy

3. The Impact of National Policy on the Conservation and Management of

the Sacred Groves in India

4. The rights of nature: conferring legal parenthood on natural objects

5. Positive effect of the Chipko Movement on the development of Forest

Law and Policy in India

6. Forest Conservation: A Leap Forward

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

INTRODUCTION:

India is the seventh largest country in the world occupying 2.4 percent of the

world area. However, only 1.8 percent of forest 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.
 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 the environment and

its government in India by inserting them into 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 the 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 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 in the

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. 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.

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 coastal 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.

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.

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 men, it is a commodity, of varying value, whose mere

employment is to be bought and sold. The frightful debasement of the natural

environment in the 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 nature. This leads to protection of the 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 characteristic of a legal person is that such a person

is subject to 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. Rights of nature

grants, understandably, rights to the natural environment. Therefore, a litigator

need not be a personal or institutional stakeholder to institute a claim, one must

prove apparent harm to rights and entitlements of the natural environment. The

concept makes the environment subject to rights, rather than a mere object of

rights and duties.

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 photograph 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 percent 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.

Forest Conservation: A Leap Forward

The widespread concern for large-scale deforestation resulting in ecological

imbalance and environmental degradation led to the enactment of the Forest
(Conservation) Act, 1980. No state government or other authority can, without
the prior approval of the central government, make any order to:

(i) de-reserve forest

(ii) use any forest land for non-forest purpose;

(iii) lease out forest land to a private agency; or

(iv) cut naturally grown trees in forest land for the purpose of using it for
re-afforestation.

The expression ‘non-forest purpose’ is significant. It denotes breaking up or

clearing of forest land for the cultivation of tea, coffee, rubber, plants, oil
bearing plants, horticulture crops, or medicinal plants. Breaking up or clearing

of forest land for the purpose of re-afforestation is not a use for a non-forest

purpose, and therefore can be allowed. However, for the purpose of

re-afforestation, naturally grown trees cannot be cut without prior sanction. Any

work relating, or ancillary, to conservation, development, and management of

wildlife and forest is also not a non-forest purpose and hence, it can be allowed.

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 sawmills 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 sawmills, 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 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
sawmills that are situated within a distance of eight kilometers from the
boundary of the 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 be 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.

BIBLIOGRAPHY:

★ Online Source

https://acadpubl.eu/hub/2018-120-5/4/373.pdf

https://thelawbrigade.com/wp-content/uploads/2019/05/Ashutosh-Nilakhi-1.pdf

http://www.legalservicesindia.com/law/article/1302/14/forest-laws-in-india-a-critic
al-analysis