Supreme Court Judgement May Bring Balance To The Forests

The Supreme Court order, only interim right now, restores the definition of forests to its broader dictionary meaning and not just to areas that are registered as forest land in government records. That means any land that resembles a forest would be treated as a forest whether it is categorised as such or not. It also means that these would be subject to forest protection laws. Moreover, the activities inside it would be regulated according to provisions of law.

Monday’s order reopens old debates over deforestation, tribal rights and the nature of development.

The Forest Conservation Act, 1980

The story goes back at least half a century when forest protection and management was brought into the Concurrent List of the Constitution through the 42nd Amendment of 1976. At that time, state governments, which had full jurisdiction over forests, were seen as liberally permitting the use of forest land for other activities. Between 1950 and 1975, about 4.1 million hectares of forest land was estimated to have been diverted for non-forest purposes, or about 1.65 lakh hectares every year on an average, according to data from the Ministry of Environment, Forests and Climate Change.

The inclusion in Concurrent List was followed, four years later, by the enactment of the Forest Conservation Act (FCA), 1980. The FCA required permission from the Central Government to divert any forest land for ‘non-forest purposes’, including industries, mining, infrastructure or even agriculture. It was meant to curb deforestation, and regulate the diversion of forests for ‘non-forest’ uses. Government data shows that the FCA brought down the average annual forest diversion to about 35,000 hectares between 1980 and 2015, or about 1.2 million hectares in 35 years.

But FCA applied only to designated forest areas, the lands that were notified as forests in government records. There were vast areas outside these notified forests, which could easily be classified as forests but had not been recorded as such. These forests had no legal protection and were quickly being taken over for construction or developmental activities. Even the FCA-mandated diversions in the notified areas were aplenty.

This continued for a decade and a half, till a 1996 order of the Supreme Court redefined the contours of forest management in the country, and cracked down heavily on illegal felling of trees, encroachments and rampant diversion of forests.

The Godavarman Case

The 1996 order came on an innocuous-sounding petition filed by T N Godavarman Thirumulpad a year earlier seeking to stop large-scale felling of timber in the Gudalur taluka of Nilgiri district of Tamil Nadu. The Court used this relatively local matter to rule on several substantive and fundamental issues related to forest management and made them applicable to the entire country. Hundreds of other petitions from different parts of the country, seeking similar relief, were later clubbed with the Godavarman case, and the Court passed a series of landmark orders that have become the defining guidelines for the way forests are protected and managed in the country.

The most important of these was passed by the bench of Justice J S Verma and Justice B N Kirpal on December 12, 1996. This is the same order that the Supreme Court referred to in Monday’s order. The most significant import of this order was the definition of the word forest over which the Forest Conservation Act applied.

“The Forest Conservation Act, 1980, was enacted with a view to check further deforestation, which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests, and matters connected therewith, must apply to all forests irrespective of the nature of ownership, or classification thereof,” the bench ordered.

“The word ‘forest’ must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated or reserved, protected or otherwise for the purposes of Section 2(i) of the Forest Conservation Act. The term ‘forest land’, occurring in Section 2, will not only include ‘forest’ as understood in the dictionary sense, but also any area recorded as forest in the government record irrespective of the ownership,” the order said.

The bench also ordered a ban on all felling of trees inside forest areas, except in accordance with the forest management working plans developed by the state governments, on approval of the central government.

This order is considered the turning point in India’s forest management practices and became the basis for several other judicial pronouncements and legal frameworks like the Forest Rights Act of 2006, which brought in additional safeguards against indiscriminate cutting of trees and diversion of forest land.

The Amendment of 2023

These legal provisions had severely tied the hands of governments, corporations like mining companies, and other user agencies, which needed to use forest areas for ‘non-forest’ purposes. They argued that the provisions were extremely restrictive and difficult to comply with.

Over time, several exceptions and relaxations to the Forest Conservation Act were introduced through executive orders -- for linear projects like highways or railway lines, for example -- with the justification that these were essential to cater to the country’s developmental needs.

Last year, the government brought in more largescale amendments to the FCA. Among them was a redefinition of forest land. The FCA was now made applicable only to notified forest land or land categorised as forest in government records. It also exempted certain kinds of strategic infrastructural projects, those lying near the border or in the left-wing affected areas, from the provisions of this law.

Writing in The Indian Express, Environment Minister Bhupender Yadav said the amendments had been drafted “with a vision to ensure that tribal people have access to basic amenities that enhance their ease of living. It responds to the aspirations of a New India and lays the ground for enhancing green areas outside forests and making forests more productive”.

He also went on to argue that the amendment did not give any blanket permission for the diversion of forests and only allowed “minor exceptions” and that too after taking care of all conservation concerns. He said the 1996 order had resulted in differing interpretations.

“After the (1996) order, the Act (FCA) was made applicable to revenue forest land or in lands, which were recorded as forests in government records and to areas which resembled forests as per their dictionary meaning. Many such lands were already put to non-forestry use with the required approval of the competent authority. This resulted in different interpretations of the FCA’s provisions, especially in recorded forest lands, private forest lands and plantations. Developmental work could not be undertaken in government-recorded forestlands that had been put to non-forestry use after state sanction,” he said.

“Fear had also crept in that FCA could be applied to private plantations. Afforestation outside forests failed to get the desired impetus. This was becoming a hindrance to enhancing the green cover…,” he wrote.

What Next

Supreme Court’s Monday order is only interim in nature. It has asked the central government to submit a report, by March 31, on an exercise that the 1996 order had asked the states and union territories to complete.

In their 1996 order, the bench of Justice Verma and Justice Kirpal had asked all the states and union territories to form an expert committee to identify all areas within their jurisdiction, which were forests by the dictionary meaning irrespective of whether they were so notified or recorded as such in government records.

The expert committees were also supposed to identify land that were earlier forests but had been denuded or cleared over the years.

The Supreme Court, in its latest order, has directed the central government to compile the reports of all the expert committees and submit them to the court by March 31. It has also asked it to digitise them and make them public by April 15.

This exercise will provide a consolidated assessment of all lands, anywhere in the country, that can be classified as forest land according to dictionary meaning. It will also reveal the proportion of forest land that is officially classified as such and is part of government records.

The true extent of forests that are not part of government records, and are thus affected by the 2023 amendment to the FCA, will also become clear. Further directions by the Supreme Court in this case would come only after that, and the maintainability of the 2023 amendments would also be up for question. In the meanwhile, the interim order has restored status quo ante. The final judgment in this case, when it is delivered, can have far-reaching consequences for the management of forests in the country.