But first, what is a forest? This definition will determine our future - Hindustan Times
close_game
close_game

But first, what is a forest? This definition will determine our future

Feb 26, 2024 07:21 PM IST

A SC interim order provides an opportunity to revisit the definition to balance India’s economic interests and infrastructure needs with sustainable goals

A buzz has erupted across the country once again over the definition of what constitutes a forest, in light of the recent interim order by a Supreme Court bench presided over by Chief Justice of India Dhananjaya Y Chandrachud on February 19, 2024. The court directed all states and union territories to identify their total forest land per the dictionary definition of forest, as had been ordered by the Supreme Court in a landmark 1996 order, and submit the information to the Central government by March 31.

April 1995 marked the watershed moment in Indian forest conservation history when the Supreme Court entertained the Godavarman case over large-scale illegal felling of timber and denudation of forests in Gudalur taluk of Tamil Nadu’s Nilgiri district (Photo by Manoj Kumar/ Hindustan Times) PREMIUM
April 1995 marked the watershed moment in Indian forest conservation history when the Supreme Court entertained the Godavarman case over large-scale illegal felling of timber and denudation of forests in Gudalur taluk of Tamil Nadu’s Nilgiri district (Photo by Manoj Kumar/ Hindustan Times)

The Supreme Court was examining a batch of petitions filed by former Indian forest service officials and the Mumbai-based non-governmental organisation Vanshakti which works on environmental conservation issues, which challenged the validity of Parliament’s 2023 amendments to the Forest (Conservation) Act, 1980.

Should the 2023 act be allowed to come into force in its entirety, about 1.97 lakh km sq of forest as defined in the 1996 order would lose legal protection, the petitioners stated. The amendment removed from the purview of the Forest (Conservation) Act, 1980 all those forests which were not already deemed to be forests, as well as officially notified forests put to non-forest use before December 12, 1996 — the date of the famous Godavarman apex court order.

The act thus contradicted the 1996 order which asked states to identify their forest area based on the dictionary definition of forest, thus including even those forests which were not officially notified as such.

The evolution of ecological jurisprudence

This important conversation over the definition of a forest needs to be placed in context to avoid another round of contestation, which began with the Supreme Court order of December 12, 1996, in the now famous TN Godavarman Thirumulpad vs Union of India and Others case. The case was perhaps the longest-ever one on forestry monitored by a country’s apex court in enviro-legal history — worldwide.

April 1995 marked the watershed moment in Indian forest conservation history when the Supreme Court entertained the Godavarman case over large-scale illegal felling of timber and denudation of forests in Gudalur taluk of Tamil Nadu’s Nilgiri district, and, parallelly, the indiscriminate felling of khair (catechu) trees in the then state of Jammu and Kashmir.

The Supreme Court adopted a comprehensive approach and extended the scope of its orders on the complex issues involved, throughout India. During the Godavarman case, which is still lives on a continuous mandamus (ongoing relief in a case, given by a court over a long period, usually directing a government authority to fulfil a duty or obligation in the public interest), the apex court employed several innovative approaches through inquisitory, advisory, judicial and statutory committees to assist it in arriving at fair decisions on complex forest jurisprudence. It determined that states go by the dictionary definition of forest-extended legal protection even to those forests which were not officially recognised.

One of the most contested aspects of the Godavarman litigation was the definition of forest itself.

Those familiar with forest laws would know that the definition of forest was conspicuous by its absence in both central and state laws on forests throughout India. Constitutionally speaking, the forest as a state legislative subject was transferred to the Concurrent List (common to states and the Centre) as early as 1976 by the 42nd Amendment of the Constitution. This paved the way for the enactment of the Forest Conservation Act, 1980, which was seen as a response to the indiscriminate forest denudation across the country by states. The National Commission on Agriculture in 1976 again emphasised the pivotal role of forests in balancing the country’s agricultural and food security needs. Only one state, Meghalaya, defined what a forest is, but did so in a rather loose manner.

It is against this backdrop that the latest order by the Supreme Court needs to be examined.

No doubt, the 1996 definition itself should be clinically evaluated to see whether it has served its purpose in the last 28 years, or not. The 1996 definition of forests broadly covers notified forests (reserved forest, protected forests, village forests) and other such notified forests at the state level under their respective Forest Acts. A second category is forests which are often recorded in the revenue records as jungle, jhadi, darakht, gramya jungle, sarna, deobani, kanker bani, known by different names throughout the country.

Then there are deemed forests on private lands, which each state was supposed to identify according to set criteria under the supervision of the principal chief conservator of forests, assisted by the district authorities from both the revenue and the forest departments. Many states have developed these criteria, and some which were contested at the apex court have also attained finality in terms of defining such deemed forests on private land.

This, too, is one of the most contested spaces in forestry management in India, which is still to be complied with by all states to attain finality of the extent of private forests that are subjected to the Forest Conservation Act, 1980 in every state. A mere ocular assessment periodically with loosely defined criteria of what can be a forest has given rise to many disputes across the country from Kerala to Jammu and Kashmir.

This needs closure.

People must reflect on policy

The failure to engage with forest-dwelling communities, using their immense traditional knowledge and weaving them into the formal statutory plans, such as the working plans, management plans and micro plans, is starkly visible in India’s forest governance systems. Against this backdrop, the definition of forest therefore becomes critical, because the role of the regulator is accordingly defined.

It is often stated that usually, forest clearance applications take two to three years for any business entity aiming to use forest land for non-forestry purposes. Such uses are more often than not site-specific projects like mining, linear projects which seek to cut forests, or the creation of public infrastructure. The attempt through the Forest Conservation Amendment Act, 2023 to remove from its purview all those forests which have been converted into non-forestry uses before 1996, needs a serious relook.

The reason is simple: Conversion of forest land into non-forest use does not render it useless as a forest in subsequent years, especially when projects come to their logical end and are decommissioned. A good example is the forest areas which have been handed over to the numerous public sector coal agencies, who have mined and then abandoned these areas unscrupulously without rehabilitating the mined forest lands. If such areas, which run into thousands and thousands of hectares, continue to be deemed as non-forest lands, then the opportunity to meet the national goal of maintaining 33% forest cover to ensure forest sustainability will always remain illusory.

In fact, such denuded, mined and scarred forest lands should be handed back for regeneration at the project proponent’s expense, or by the huge Compensatory Afforestation and Management Planning Authority (CAMPA) fund which is being used — and some say abused — for such rehabilitation of degraded forest lands. Such huge funds should be targeted at assisting natural regeneration and rehabilitation of degraded forests on a priority basis.

I firmly believe that this particular order, as we reflect on it, is a great opportunity to revisit the experiences of the definition of forest as initiated by the court, as perceived and now weaved into the Forest Conservation Act amendments. Ultimately, the aim should be to secure not only the forest for future needs but also balance India’s economic interest and public infrastructure needs with the sustainable development goals of this great nation.

Sanjay Upadhyay is a Senior Advocate in the Supreme Court and has written a widely known paper on the top court's Godavarman judgement of 1995, titled The Godavarman Story.

Unlock a world of Benefits with HT! From insightful newsletters to real-time news alerts and a personalized news feed – it's all here, just a click away! -Login Now!

Continue reading with HT Premium Subscription

Daily E Paper I Premium Articles I Brunch E Magazine I Daily Infographics
freemium
SHARE THIS ARTICLE ON
Share this article
SHARE
Story Saved
Live Score
OPEN APP
Saved Articles
Following
My Reads
Sign out
New Delhi 0C
Friday, April 12, 2024
Start 14 Days Free Trial Subscribe Now
Follow Us On