Judicial Intervention and Conservation of Forests

1. Judicial Intervention and Conservation of Forests Sanjay Upadhyay Advocate Supreme Court of India Managing Partner Enviro Legal Defence Firm August 2013

2. Conflicts over forests in Court Rooms- Pre Godavarman • Trends in Forest Cases-From Timber Use  Conservation • Mining & Mining leases (a privilege & not a right) • Property rights (forest-dwellers) • Procedure conflicts • Inquiry • Proforma • Language of notification • Control over forest – Centre-state relations • Conflicts of jurisdiction within depts. of state. • Use of forest for non-forest purpose • Forest rights of forest dwellers • Application of FCA • Provisions of FCA not only applicable on fresh leases of forest land but also on those which are being renewed. • Renewal not a matter of Right. (Ambica Quarry Works)

3. The Godavarman Case • WHY DID THE BRITISH DID NOT DEFINE FORESTS? • THANK GOD FOREST HAS BEEN DEFINED • THE BIGGEST GAINERS? • Anybody’s Guess!!!

4. The Godavarman Case: Refining & Re-defining Forestry in India • The Godavarman case represents the single biggest judicial intervention in administration of forest in the country and perhaps in the world!. • Judicial activism has been at its zenith -since 1995, a few thousand Interlocutory Applications have been filed representing different interest groups • from different States, • different sectors, • non government organizations, • industrial sectors, • traders, • political interest, • social activists, • environmentalists, • forest dwellers………the list is endless.

5. The apex court has touched on • substantive and definitional issues such as definition of forest, dereservation, wood based industry, working plans, “encroachment”. • ecological aspects of forests such as conservation of forests, ecologically sensitive areas, • strategies to deal with diseases on forests (sal borer), • removal of forest produce, • restrictions on clear felling and green felling. • economic role of forests such as forest land valuation including compensatory afforestation and net present value • staffing and budgetary issues such as financial outlays for forests and wildlife, • salaries of staff • the role and constitution of Forest Advisory Committee.

6. The Godavarman Case: Refining & Re-defining Forestry in India • The SC has also • dealt with commercial and livelihood aspects of forestry in relation to mining, sawmills, plantations and wood based industries. • The court has adopted numerous legal and judicial strategies through inquistionary, advisory, judicial and statutory Committees to assist itself in arriving at fair and just decisions. • It has adopted strategies to implement its own orders through new and innovative methods by imposing pecuniary restrictions to use of contempt proceedings. • The case has also resulted in creation of new structures ( unheard in any part of the world) -the Central Empowered Committee (CEC) which has been created under the powers of the SC. • Last but not the least, the role of amicus curiae is perhaps the most evolved in this case. • Is this is a good sign?

7. Impact on Trade • Running of saw Mills in close proximity of any forest area banned. • All Wood based Industries to be relocated in industrial zones earmarked by the Government • Fresh Licenses for Saw mills to be awarded after proper consultation with CEC • All mining in any forest area without prior approval of the Union Government to be banned. • Officers allowing illegal mining held in contempt and vehicle and equipment of miners seized

8. Impact on Transit • Complete ban on movement of timber within and outside the North Eastern States • Prior Certification by the HPC for Commercial use of any Timber • State Governments of North East directed to come up with guidelines for transit of timber in consultation with MoEF • All other government departments like railways directed to follow these guidelines • The Court has prohibited collection of dry, dead and fallen wood from the PA’s.

9. Mining in Forest Areas • Clearance under FCA made mandatory for new as well as leases to be renewed. • Non implementation of the Court order resulted in blanket ban on mining (e.g. Aravallis). • The Court criticized inconsistent approach of the Central and State Government on the issue of grant of short term permits for mining. • Court took strong note of non implementation of its directions and initiated contempt proceedings against responsible officials. • Orissa Mining Case- new avenues created for cultural and religious rights to be recognised

10. Central Empowered Committee: The Administrative face of forestry • To oversee implementation of Courts Order within the Country. • Also assigned powers for dispute resolution and redressal of grievance caused due to implementation of courts order for State and Individuals • This committee comprised of nominees from the Union Ministry, NGO’s and a representative of the Amicus Curiae • The Committee has since been notified under the Environment Protection Act, then withdrawn and now under the SC order. • De Facto the Committee has been placed above all High Courts of the Country. • Two thoughts: While some laud the great tasks done… Is this good institutionally for FD and if not what are we doing about it?

11. Committees Appointed: Executive Committees • Monitoring Committee to oversee reafforestation, mining activities and other related matters in Doon Valley Mining Matter • High Powered Committee for the North Eastern region. • R. B. Lal Committee to present a report on the Sal Borer issue • R.M.N. Sahay Committee on encroachment in Thatkola resreve forest • Shekhar Singh Committee on Encroachment in Andaman Nicobar Islands

12. Encroachment • All encroachment on any forest to be identified as pre 1980 and post 1980 • All post 1980 encroachment to be phased out in a time bound manner • State Government directed to come with guidelines for removal of encroachment. • In this Process CEC to be consulted • But what is “encroachment”. Who decides? What is the legal definition? Is it too discretionary? Private forest? 1952?

13. Influence on Executive Action • Constitution of CAMPA • Supply of timber and forest produce to industries including government undertakings at full market rates • State of Assam revised the rates of the royalty on timber in Aug 1998 in pursuance to the Court order. • Creating a revolving fund from the amount realized out of the penalties levied on the wood based industries and the proceeds from the sale of seized timber as well as timber products • The Court had asked the State governments to frame rules with respect to felling of tress from non-forest lands, with the concurrence of the MOEF • The Assam (Control of Felling and removal of tress from non-forest lands) Rules, 2002, formulated

14. Ecological Restoration • Corporate Houses like pepsi and coke imposed with cost for causing ecological degradation: Himanchal Rock Painting Case • Reliance Industries issued notice for causing damage to a National Park in M.P. • Emphasis on sustainable use of resource for development and • precautionary principle

15. National Parks and Sanctuaries • Two cases which have had great influence are the CEL WWF-India Case and the Navin Raheja Case. • The CEL Case was filed to understand the State position on settlement of rights in national parks and sanctuaries • It was in this case that the Apex Court made the clearance of National Board of Wildlife mandatory before according clearance for diversion of a forestland in any of the PA’s for non-forestry purpose

16. Recent Important Rulings • Lafarge case – Implementing Policy; Setting up Institution; Joint Process in case of dispute • Ajay Dubey – Tiger Tourism • Orissa Mining Judgment- cultural and religious rights to be inquired under FRA

17. Lafarge- Broader Implications on forest law and policy • Is this just and environment versus development case? No. It raises larger questions of due process and the mess in which are environmental laws are! • Should we have such an unclear system where it should take anyone to sort out a dispute in 14 years?

18. Lafarge- Broader Implications on forest law and policy • Regulator for FP, 88 But why only for FP and why not for Env Policy too? • Regional offices? • Regional CECs? • FC before EC? • Corporate Env Policy? • Completion of “WHAT IS FOREST”?? • comprehensive policy for inspection, verification and monitoring and the overall procedure relating to the grant of forest clearances

19. Lesson Learnt!! • An over active judiciary is a sign of a weak Executive!

20. THANK YOU +91-9810298530 sanjay@eldfindia.com www.eldfindia.org