INTRODUCTION:
The roots of forest regulations can be traced back to the colonial period in India, which was a British Empire colony. The Indian Forest Act was passed in 1972 in response to the rising industrial economy[1] of the United Kingdom’s need for timber[2], particularly for railways and shipbuilding. The colonial authorities, on the other hand, knew that merely taking the forest’s resources by force would elicit opposition and stimulate theft and rivalry among colonial rulers of India. The new Forest Act devised a framework in which an area was declared a “government forest” and then became the de facto property of the colonial state, subject to the settlement process outlined in succeeding Acts. Even today, the effects of colonial legislation can be felt; for example, it is observed that the forest department’s working plans are primarily concerned with maintaining trees, although the Forest (Conservation) Act considers tree plantations as an adequate substitute for natural woods.
Forests in India:
In India, tribal and forest dwellers depend on trees and forests for their survival, and the degree of dependence varies from village to village[3]. They lost their land and access to resources as a result of government interference. For these folks, the Forest Rights Act represents a glimpse of hope for regaining access to land. The Act guarantees tribal access to forest resources as well as forest conservation. The 2015 Paris Agreement[4] was an international pact that India adopted, agreeing to climate adaptation, mitigation, and financial . Forest protection is unachievable without the cooperation of its inhabitants. Tribal groups and local people play a significant role in maintaining forest ecological balance by providing heartfelt assistance in enforcement actions. Furthermore, the flourishing practice of cooperative forest management can only succeed if forest policies prioritize the social goals, economic desires, and ecological opinions of the individual who lives there.[5]
Forest Acts reforms in India:
Although the role of forests evolved in the post-colonial state, many aspects of the fight remain consistent in Indian capitalism, which influences the type of political action that occurs. ‘The significance of the law as an oppressive instrument still persists,’ to elucidate, ‘because of the Forest Department’s overwhelming presence in these places, the state is a clear, glaring, and direct exploiter of the people, utilizing forest laws as its instrument.’ State complicity is both obvious and prohibited where other exploiters, such as landlords or contractors, operate.[6] The forest rules were enforced on the afflicted areas at a time when private property and fully commoditized production relations had not yet infiltrated the impacted areas. As a result of this imposition, it became more difficult to establish a relationship between private property and fully commoditized territory. Both of these factors make the argument between the state and the ‘people’ more realistic and truer. The fight around the Forest Rights Act, as well as the law’s potential, must be considered against this backdrop. The establishment and fine-tuning of the system of government expropriation of forest regions and their takeover as state property may be seen in the Indian Forest Acts of 1865, 1878, and eventually 1927. Following a thorough examination of the numerous Acts, the State establishes that forests are a commodity that can be demolished as long as they are “replaced” elsewhere.
‘Reserved forest’ and ‘Protected forest’:
The 1980 Forest Laws defined the terms “reserved forest” and “protected forest.”[7] According to the 1927 Act, once a “reserved forest” was designated, it was the responsibility of a single authority to investigate and resolve the land and forest rights that people held in the region. Land rights, rights to watercourses and forest produce, and shifting cropping were among the rights. The Forest Settlement Officer had sole authority over whether or not these rights should be recorded. Collective rights and powers were rarely documented. If a territory fell under the criteria of “protected forest,” the government might seize any land over which a rights settlement had previously been reached and impose limitations or controls on a wide range of uses and activities.[8]
T.N. Godavarman Thirumalpad and Ors. Vs. Union of India and Ors[9]:
This case represents a significant shift in national forest policy. The issue before the court was the definition of “forest” under the Forest (Conservation) Act, and whether the Act’s limits are confined to government forests or apply to all forests. The court ruled in 1996 that the term “forest” in the statute refers to any place that meets the dictionary definition of a forest or has been proclaimed a forest according to official records. The court also ruled that the act’s prohibitions had a broader scope and were not limited to solely government forests. Any additional forest that was subject to the act’s restrictions was included. The directive significantly increased the power of the Forestry Department. On many of these properties, the injunction meant that any “non-forest” activity was forbidden. The “dictionary definition” of forests was a hotly debated topic. The problem became even worse when the court, in a subsequent order in 2001, barred all land title regularization for “encroachments.” The order served as a tool for the Forest Service, which used it in subsequent eviction campaigns. The court established a “Central Empowered Committee” in 2002 to help deal with a huge number of unresolved forest clearance applications. The forest bureaucracy has been given enormous powers as a result of this case. The court assumed jurisdiction over the majority of the timber harvesting process. The court also took responsibility for deciding whether or not forest clearance can be given for projects. In 2002, the court devised a new notion known as “Net Present,” which was intended to levy a penalty on individuals who wanted to divert forest land for non-forest use.
Forest (Conservation) Act, 1980[10]:
The Indian Forest Act of 1927 was primarily designed to generate revenue.[11] The concept of a sovereign monopoly over land paved the way for the commercialization of forest products, resulting in significant forest ecosystem damage as thousands of trees were felled during this time. As a result, the Forest (Conservation) Act of 1980[12] was adopted to prevent forest exploitation. The goal was to restrict the de-reservation of forests that had been reserved by the Indian Forest Act, 1927, and to limit the use of forest property for non-forest purposes. In addition, new measures were included to limit the leasing of forest areas to private corporations and to protect trees that fall naturally.
The Judiciary’s Role in Forest Conservation:
The purpose of enacting the aforementioned Act was to prevent deforestation and economic imbalance. The state government’s control over the forest was further eroded by this Act. It requires the approval of the federal government before any non-forest activity can be carried out in the forest. Through judicial activism, the judiciary has played a critical role in establishing the limits and scope of forest law.
T.N Godavarman Thirumulpad v. Union of India[13]:
In a landmark judgment, the Supreme Court defined the term “forest” as “all statute recognized forests,” and “forest land” as “forest as well as any area listed as forest in the government record.” This issue is still pending before the court, which is treating it as a continual mandamus and has taken on the role of policymakers by implementing afforestation initiatives. An ad-hoc compensatory afforestation fund management and planning authority (CAMPA) was established[14] by another decree.
Sushila Saw Mills v. the State of Orissa[15]:
The Supreme Court ruled that prohibiting sawmills within 10 kilometers of conserved forests did not violate the Constitution’s Article 149.
Judiciary’s Contribution and Criticism:
The most significant contribution of the judiciary to forest conservation was the establishment of the central empowered committee (CEC) in 2002, under a Supreme Court order, under section 3(3) of the Environment Protection Act, 1986[16]. The role of the CEC is to adjudicate individual complaints about government actions and to ensure that the Supreme Court’s order is implemented. The judiciary’s interference has been challenged for a variety of reasons. The judiciary has entered the realm of legislative powers, such as prohibiting the shipment of timber and establishing a location for a sawmill outside of forest property. The Supreme Court actively intervened in the Godavarman case on the subject of government expenditures of money collected from user agencies. When dealing with the issue of forest encroachment, the Supreme Court has delivered erroneous and impracticable directions on numerous occasions, resulting in the infringement of the right to forest independence. As a result, the judiciary’s role should be limited to the degree of its ability to regulate forest issues. The role of the court should be examined further in light of the separation of powers philosophy enshrined in the Constitution. Furthermore, the rights of forest-dependent populations must be respected, and no forest matter should be judged solely based on its conservation value.
Conclusion:
With the massive development of industries and the commencement of development operations in the country, a slew of environmental concerns has arisen. There have been a number of occasions where human activities have resulted in environmental harm that, in some cases, cannot be reversed. India is one of the countries in the world that places a high value on environmental management and preservation. Several laws dealing with the environment and forest conservation and protection have previously been passed by Parliament. The Green Tribunal adds another feather to the cap by focusing on environmental issues. Setting up a body like the National Green Tribunal appears to be a wonderful idea for a country that has seen one of the world’s most devastating industrial disasters, the Bhopal Gas Tragedy.
Author(s) Name: Abhishek Chadha (Guru Gobind Singh Indraprastha University, Delhi)
References:
[1] < https://forestlegality.org/risk-tool/country/india > accessed on March 27, 2022
[2] < https://www.drishtiias.com/to-the-points/Paper2/indian-forest-act-1927 > accessed on March 27, 2022
[3] < https://www.culturalsurvival.org/publications/cultural-survival-quarterly/forest-policy-and-tribal-development > accessed on March 26, 2022
[4] < https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement > accessed on March 26, 2022
[5] < https://www.fao.org/3/W9615E/w9615e0c.htm > accessed on March 26, 2022
[6] Krishnan, S. Gopal. Rights Legislations and the Indian State: Understanding the Nature and Meaning of the Forest Rights Act. 2010.
[7] < https://www.dgms.net/HANDBOOK_GUIDELINES18_03_2019.pdf > accessed on March 26, 2022
[8] Krishnan, S. Gopal. Rights Legislations and the Indian State: Understanding the Nature and Meaning of the Forest Rights Act. 2010.
[9]T.N. Godavarman Thirumalpad and Ors. v. Union of India and Ors (WP 202/95)
[10] < https://legislative.gov.in/sites/default/files/A1980-69_0.pdf > accessed on March 27, 2022
[11] < https://www.downtoearth.org.in/news/forests/the-indian-forest-act-1927-amendment-will-create-new-markets-generate-millions-of-jobs-for-poor-communities-59712 > accessed on March 27, 2022
[12]The Forest (Conservation) Act, 1980, No. 69, Act of Parliament, 1980.
[13]T.N Godavarman Thirumulpad v. Union of India, (1997) 2 S.C.C. 267
[14] < http://forestsclearance.nic.in/writereaddata/FAC_Agenda/AboutCAMPA.pdf > accessed on March 27, 2022
[15]Sushila Saw Mills v. the State of Orissa, (1995) 5 S.C.C. 615
[16] < https://indiankanoon.org/doc/66315068/#:~:text=(3)%20The%20Central%20Government%20may,such%20of%20the%20powers%20and > accessed on March 27, 2022
