Perhaps no judiciary in the world has devoted as much time, effort and innovativeness in protecting our forests as the Supreme Court of India has for the last eight years. In doing so it reinterpreted the Forest (Conservation) Act, 1980, created new institutions and structures and conferred additional powers on the existing ones. It has been a process of continuous involvement of the apex court in forest management. The traditional supremacy of government forest departments has gradually been challenged and in some cases replaced by the continuous supervision of the court aided by concerned citizens and NGOs.
The Supreme Court's involvement in forest conservation largely centres on the Public Interest Litigation viz T. N Godavarman Thirumulpad Vs Union of India (W.P 202 of 1995). The Godavarman case attracted the limelight when on 12-12-1996 the court in its order 'suspended' the felling of trees in all forests except in accordance with the working plans of the state governments which were approved by the central government. In the same order the court clarified that the word 'forest' must be understood according to the dictionary meaning.
What is the Godavarman Case?
On 12 December 1996, forest governance got a thumbs-up as the Supreme Court expanded the scope of the term "forest". In T.N. Godavarman Thirumulkpad Vs Union of India and Environmental Awareness Forum, Jammu and Kashmir vs State of Jammu and Kashmir, the SC reinterpreted the Forest (Conservation) Act, 1980. It now included within its scope not only forests as mentioned in government record but all areas that are forests in the dictionary meaning of the term irrespective of the nature of ownership and classification thereof. The case came to be popularly known as the Godavarman case.
Both the Godavarman and the Centre for Environmental Law (CEL), WWF vs Union of India and ors cases have led to fundamental changes that have wide impact on forest management. For example:
1) No forest, National Park or Sanctuary can be dereserved without the approval of the Supreme Court.
2) No non-forest activity is permitted in any National Park or Sanctuary even if prior approval under the Forest (Conservation) Act, 1980 had been obtained.
3) An interim order in 2000 prohibited the removal of any dead or decaying trees, grasses, driftwood, etc from any area comprising a National Park or Sanctuary. It was also directed that if any order to the contrary had been passed by any State government or other authorities, that order shall be stayed.
4) New authorities, committees and agencies have been set up such as the Central Empowered Committee (CEC) and the Compensatory Afforestation Management and Planning Agency.
Updates on our forests
Disempowering forest management
Saw mills in a see-saw
Perhaps nowhere was the impact of the expanded meaning of the word 'forests' felt so severely as was in the case of the north eastern states (NE) of the country. In many cases, the interpretations and impacts have also been extremely controversial.
Less than two years after the first order in the Godavarman case, was another one on 15-01-1998. In this order, the court directed that working plans for all forest divisions shall be prepared by the state governments and would have to be approved by the central government. It was clarified that the term 'State Government' would also include District Councils constituted under Schedule VI of the Constitution of India.
Autonomous District Councils are local bodies under Sixth Schedule [Articles 244(2) and 275(1)] of the Constitution. The Sixth Schedule has provisions for the administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. The district councils are the key local governance institutions in many parts of the north east.
The 1998 order met with stiff criticism in the north east, on the grounds that the court was making an arbitrary directive which had not taken into account the special constitutional provisions for the region. More importantly, it was felt that the order had failed to appreciate the traditional management systems of tribal communities in the region. These orders were seen as being aimed at reinforcing centralized power structures.
It is important to trace the development of the case to clarify where the problem perhaps lay. The sequence of events leading to the 12-12-1996 (first) order was clearly a reaction due to the lack of response of the north eastern states to the issue of forest conservation. Prior to the passing of the order prohibiting felling of trees, the Supreme Court directed the Forest Secretaries of the all the seven north eastern states (excluding Sikkim), to be personally present in court, in view of them not responding to the notice of the court.
Contrary to the general perception of what the court actually ordered, the Supreme Court had taken note of the dependence of the people on timber trade and in its order stated clearly "considering the dependence of the local people on the forest resources in the region, it is neither feasible, nor desirable to ban completely either the timber trade or running of the wood based industries". It therefore, allowed the continuation of timber extraction but after developing appropriate working plans. It did however block the transport of timber outside the region.
In the second order, the court further concerned itself with the issue of reforming the Forest Administration in the north eastern states. It directed that in view of the multidimensional issues impinging upon forest protection:
The court also directed the north eastern states to identify ecologically sensitive areas in consultation with institutions such as the Indian Council of Forestry Research and Education, Wildlife Institute of India, North Eastern Hill University, North Eastern Regional Institute of Science and Technology and leading NGOs and ensure that the identified ecologically sensitive areas be protected from any kind of exploitation. It further stipulated that the extent of all such areas put together be atleast 10% of the total area of a state.
In another order, considering the remoteness of the north east, the Supreme Court constituted the Arunachal Pradesh Forest Protection Authority under the provision of Section 3(3) of the Environment (Protection) Act, 1986. This section of the EPA law gives power to the central government to constitute an authority or authorities to take measures to protect and improve the environment. This Authority could hear any appeal against any order passed by any Authority with reference to the compliance of the orders of the Court. Further, this appeal was to be disposed in conformity with the orders of the Court and only if that couldn't be done, it would be referred to the Supreme Court.
The innovativeness of the Supreme Court lay in the fact that the Arunachal Pradesh authority was the first instance where the provisions of the Environment (Protection) Act, 1986 was used to set up a body to protect forests. This became the model, when the court setup the Central Empowered Committee (CEC) in 2002 as a central body to assist it on forest related issues. The CEC has today emerged to have a very significant influence in forest governance in the country.
Despite these positive developments, the implementation of the court's orders has had critical problems. In an interesting study, Dev Nathan has documented how in Meghalaya, the Supreme Court's order on prohibiting logging without an approved working plan led to some serious and perverse, unintended consequences (Economic and Political Weekly, Jan 22, 2000). According to the study, commercial sale of timber was carried on by large number of farmer families and income from such sale of timber was a regular feature of their livelihood system, being the main source of cash. This was used to meet household needs, including that of education.
As a result of the court's restrictions mentioned earlier on, cash incomes fell and families were forced to reduce their cash expenses, including on education, especially higher education. Shops in the villages report ed lower sales than before. Families consume less of purchased foodstuffs, clothes and medicine. Even though this study was limited to one district and may not have held true for other areas, it does bring out the difficulties that can arise.
But most disturbingly, the Nathan study notes that the most important change is in the use of trees. Since trees have no sale value as timber, farmers have turned to harvest trees for usage of lower value. Pine trees, instead of being sold as high value timber, are being sold for one tenth the price as firewood, on the sale of which there is no ban. Making charcoal from burning cut logs and tree branches, which had virtually disappeared, has come back with a vengeance. Infact even the bark of the trees are been harvested leading to the death of the tree. Most alarming is the large scale conversion of timber forest into jhum (shifting cultivation) fields. As timber has no value, farmers prefer to convert forested lands into agricultural plots.
But it is also worth recollecting that prior to the Supreme Courts intervention, the north eastern region with only 7% of the land area was accounting for over 60% of the timber supplied. Many of the traditional systems of forest management could not cope with huge market demands. Uncountable number of saw mills operated in remote tribal areas most often under dejure tribal ownership and in actuality controlled by non tribals/non locals. In order to meet the burgeoning requirement of timber, virgin natural forests were being stripped bare.
It is this situation then had demanded an urgent and immediate response. Something which the political and executive machinery (including the autonomous district councils) had not responded to or did not have the will to do so. But there were also difficulties with the implementation of the apex court's orders and getting feedback from the north east on the nature of the issues. All of this precipitated the second, January 1998, order.
Since the Godavarman case is ongoing, modification and clarifications of orders and directives can be easily sought by filing intervention applications in the Supreme Court. There have been many instances where modifications were made in order to deal with specific situations. For instance, in the case of Uttaranchal, the Supreme Court clarified that none of the orders will affect the rights and concessions conferred to the inhabitants of the hill region.
Similar interventions could help the court address conservation needs of the north eastern states too. Biodiversity conservation and livelihood rights are critical for the ecological and social security here. Unfortunately, the north east has not seen such region-specific intervention. There is currently very little information about this case, its orders and how they effect the region. Any intervention first needs to begin with the awareness. The legal complexities need to be demystified, creating the space and possibility for simple but factual communication on the issue as well as public debates on concerns and solutions. These tasks though daunting are certainly achievable.
Today, judicial intervention in forest matters is a reality. The Supreme Court has been taking a proactive role in passing orders that impact forest governance. While this may not be an ideal situation, it is what has emerged. The development trends in the country today are at the cost of the environment because of disregard for environmental laws. Citizens have asked the Supreme Court repeatedly to intervene because 'private' interests have attempted to bypass laws. Clearances required under the Forest Conservation Act or the Environment Protection Act, are often simply not taken. As a result legal intervention is sought.
There are problems with the Supreme Court oversight on forests as well. As pointed our earlier in this article, the court's intervention is also sometimes viewed as one which is centralised and does not take local realities in mind. But the judiciary is there as forum of redressal and even crisis management in some situations. In fact, the declaration of some Eco-Sensitive Areas in the country has happened through Godavarman case interventions, when even the Ministry of Environment and Forests had not acted.