This Article is submitted by Sanjay Rawat, which talks about: The Role of Supreme Court in Forest Conservation in India
“The forest affords protection to all beings, offering shade even to the axe-man who destroys it.”Gautama Buddha
Forests form a very important part of our natural ecosystem. They help in maintaining ecological balance. They render the climate equable, add to the fertility of the soil, prevent soil erosion, and promote perennial stream flow in rain-fed rivers. They also shelter wild animals, preserve gene pools, and protect the tribal population. There is a need to balance both the development and conservation providing a good governance model.
The current process of industrialization, urbanization and globalization are adversely influencing on the natural resources like land, water, forests etc. There is utmost need to conserve and utilize these resources in a sustainable manner since they are the very basic components of human development.
As the twenty-first century enters its second decade, India’s population growth stands to place it as the world’s most populous nation by 2030. Most of India’s population lives in rural villages, near the nation’s forests rather than major metropolitan centres, like Delhi. With a land area about one-third the size of the United States and a population almost four times as large, Indian forests are under increasing pressure from population growth as well as economic modernization.
Unique among common law jurisdictions, India provides constitutional protections for the environment as well as a wide array of statutory schemes that address particular environmental concerns. Additionally, over the last thirty years, the Indian Supreme Court has adopted a more activist approach to its jurisprudence as it relates to social issues.
It is a fact that there are number of legislative steps taken to ensure forest conservation in India but the contribution of Indian Supreme Court in this context is unparallel. Since last two decades the Supreme Court of India has been performing the stellar role by taking a Herculean task of comprehensive conservation and protection of forest across the country.
ENVIRONMENTAL PROTECTION MECHANISMS IN INDIA
There are three basic legal mechanisms for protecting the environment in India: the Common Law, the Constitution, and more recently, environmental statutes, particularly the Forest (Conservation) Act of 1980.
A. Indian Common Law
Prior to 1970 and the beginnings of a statutory approach to environmental protection, Indian common law derived from the British legal system in place since the colonial era provided several avenues for protecting the environment. Similar to the British and American legal systems, Indian tort law recognizes nuisance, trespass, negligence, and strict liability as the central causes of action available for protecting the environment. A brief description of each right of action is necessary to understand the overall framework of environmental protection in India.
The Indian common law divides nuisance into public and private nuisance. The law defines public nuisance, which is both a tort and a crime, as “an unreasonable interference with a right common to the general public.” A member of the public, however, must show special damages in order to create a private right of action. As a result, environmental protection litigation based on a public nuisance cause of action rarely occurs.
A nuisance action generally requires the plaintiff to establish the reasonableness of the defendant’s conduct, something notoriously difficult to prove in Indian courts. Moreover, nuisance law application varies from jurisdiction to jurisdiction in India and therefore consistent results for plaintiffs are rare.
Trespass is a less-used, but still viable, cause of action in Indian environmental cases. Trespass requires “an intentional invasion of the plaintiff’s interest in the exclusive possession of property.” Trespass closely resembles private nuisance. It differs, however, with respect to the nature of the injury involved. With trespass the injury is direct, whereas with private nuisance it is consequential. Though courts readily give relief for trespass, even displaying an activist sentiment by bending the trespass definition to accommodate a wide range of pollution sources, invocation of this tort is rare.
The negligence cause of action in India is identical to that available in the United States. Negligence requires
(1) a legal duty of care;
(2) a breach of that duty by the defendant;
(3) a causal connection between the breach and injury; and
(4) the resulting injury.
Negligence is used infrequently in environmental actions, often appearing only because of technical difficulties in nuisance actions. Additionally, negligence actions prove difficult in environmental contexts because of the need to establish a causal connection between the breach and injury given the inherent challenges in tracing the sources of pollutants.
- Strict Liability:
The Rylands v. Fletcher Rule Though technically still good law, the strict liability rule derived from the English case Rylands v. Fletcher is infrequently applied in environmental protection actions in India. The rule states that “the person collects and keeps on his land anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” Because the liability is strict, defendants can raise few defences. The Indian Supreme Court, recognizing the difficulty in applying the Rylands rule, articulated a harsher strict liability rule in M.C. Mehta v. Union of India. There, the Court introduced an enterprise liability theory for businesses engaged in inherently dangerous activities. The theory creates absolute liability for any harm resulting from a hazardous activity engaged in by the enterprise.
B. The Indian Constitution
This section discusses first the basic structure of the Indian Constitution; second, Article 21 of the Fundamental Rights, a common source of environmental protection.
- Basic Structure
Operating much like the American Constitution, the Indian Constitution contains the fundamental legal precepts of Indian society. The document is split into twenty-two parts. The relevant sections for the purposes are Part III, Fundamental Rights; Part IV, Directive Principles of State Policy (Directive Principles); and Part IVA, Fundamental Duties.
Part IVA, Fundamental Duties, prescribes social behaviours incumbent on the Indian people to follow, in the interest of society. Article 51A(g) states that it is the duty of every Indian citizen “to protect and improve the natural environment including forests.” Like the Directive Principles, the Fundamental Duties are nonjusticiable, though they do guide the Supreme Court in determining governmental duties
- Environmental Protection Based on Article 21 of the Fundamental Rights
Article 32 of the Indian Constitution provides Indian citizens “the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights.” The Court uses Article 21 (India’s version of the American Due Process Clause) to expand substantive rights available for enforcement through Article 32. By interpreting the right to life as it has, the Court created the market for public interest litigation—its preferred vehicle for enforcement of constitutional rights
C. Environmental Statutes
- Indian Forest Act, 1927
To make forest laws more effective and to improve the forest Act, 1875, a new comprehensive Forest Act was passed in 1927 which repealed all previous laws. The Act consists of 86 sections divided into 13 chapters. The main objects of the Act are:
1) – To consolidate the laws relating to forests.
2) – Regulation of and the transit of forest produce. And,
3) – To levy duty on timber and other forest produce
- 2. Forest Conservation Act, 1980
In 1980, the Parliament, in response to the rapid decline in the forest covers in India, and also to fulfil the Constitutional obligation under Article 48-A, enacted a new legislation called the Forest Conservation Act, 1980. Deforestation causes ecological imbalance and leads to environmental deterioration.
With a view to check further deforestation, the President promulgated the Forest (Conservation) Ordinance, 1980 on the October 25, 1980. The Ordinance made the prior approval of the Central Government necessary for de-reservation of reserved forest and for use of forest land for non-forest purposes. Ordinance also provided for the constitution of an advisory Committee to advise the Central Government with regard to grant of such approval.
- The Scheduled Tribe And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed almost unanimously by the Lok Sabha as well as the Rajya Sabha on December 18, 2006. This legislation, aimed at giving ownership rights over forestland to traditional forest dwellers. The law concerns the rights of forest dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India. A little over one year after it was passed, the Act was notified into force on December 31, 2007.
THE ROLE OF THE SUPREME COURT OF INDIA IN FOREST CONSERVATION
The judiciary played an important role in protecting forests and wildlife, by leaving the core areas uncovered by the law as appropriate for legislative action than for judicial formulation. Besides, emphasising the significance of forests, the courts endeavoured to protect the rights of persons affected by development projects and tribal people, who form part of the forest environment.
Relying on the „public trust doctrine‟ to protect and preserve forest and natural resources they tried to enforce the concept of sustainable development to solve the environment-development dilemma and upheld the controls and exploitation of forest resources. The role of the Supreme Court of India needs special reference in developing the jurisprudence for forest conservation in India.
The independent judiciary embedded with the power of judicial review has performed a stellar role in the conservation of Forest and wildlife in India. The expansion of the locus standi has given momentum to judicial activism in the development of environmental jurisprudence in India.
- PIL: An Effective Tool for the Forest Conservation
Through the tool of PIL (Public Interest Litigation) the Supreme Court had dealt with variety of issues related to conservation of forest, preservation and protection of wildlife, protecting the rights of tribal people and thus balancing the symbiotic relationship between the forest dwellers and the goal of forest conservation. The court has also addressed the issues of balancing the right to freedom of trade and business and the conservation of forest and wildlife and issues related to biodiversity. With the help of PIL the Supreme Court has interpreted the provisions of the FCA, 1980.
- Interpretation and Implementation of Forest Act, 1980 by the Supreme Court: Role of Supreme Court in Forest Conservation
The Supreme Court has interpreted and enforced the provisions of Forest Conservation Act 1980 strictly in T.N.Godavarman Thirumalkpad v. Union of India. The Court issued sweeping directives to enforce the FCA. All wood based industries were closed and an embargo was imposed on the exploitation of forest and forest product. The Court also created Central and State committees to enforce the directions it issued in this case. The court recognized that FCA was enacted with a view to check ecological imbalance caused by rapid deforestation. The court also defined the word forest used in the FCA. The Court said the provisions of the act must apply to all the forests irrespective of the ownership or classification thereof
“The word forest must be understood according to its dictionary meaning. This description covers all statutory recognized forest, whether designated as reserved, protected or otherwise for the purposes of s.2 (I). The word forest will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of ownership.”
- Contribution of the Supreme Court through Godavarman Case
The Godavarman case represents perhaps the single largest intervention by any court in the world on any single issue. It is presently in its fifteenth year and is now heard two days a week by two separate benches of the court. In the last 15 years over 15 judges heard the cases at different times. It represents in all its myriad form, a unique judicial effort to deal with the deforestation and forest governance issues. It has without doubt given the subject of forest some degree of seriousness in the national policy debate.
The genesis of the Godavarman case was a result of the non responsiveness of various State Governments to the issue of forest conservation. The Godavarman Case concerns, primarily the Forest (Conservation) Act, 1980, together with the National Forest Policy, 1988. However the case progressed, and diverse issues were raised, the court could not limit itself to the narrow confines of the FCA of 1980. At numerous occasions, issues concerning wildlife protection were raised. Most of these were concerned with the protection of National parks and Sanctuaries. The various orders in the Godavarman Case have touched each and every aspect related to forest and wild life conservation in country. The court had tried to fill the gap between the law on forest conservation and its implementation.
In T .N. Godavarman Thirumulkpad v Union of India the Court issued sweeping directives to enforce the Forest Conservation Act, 1980. The Court ordered to close wood based industries and on exploitation of forest and forest product. The Court also created Central and State committees to enforce the directions it issued in this case. The court recognized that FCA was enacted with a view to check ecological imbalance caused by rapid deforestation. It was clearly stated by the Court that the provisions of the act must apply to all the forests irrespective of the ownership or classification thereof.
The Supreme Court has touched wide range of issues related to forest conservation through the different orders in Godavarman case. Through this case the court has addressed the issues like defining the term forest and implementation of Forest Conservation Act, 1980, Constitution of High Power Committee to oversee implementation of Court’s orders in Northern Eastern States, encroachment of forest land, constitution of Arunachal Pradesh Forest Protection Authority, Formation of State and central level Authorities under the Environment ( Protection) Act, constitution of Central Empowered Committee, Forest advisory committee, the issues related to regulation of non-forest use of forest land and protection of wild life and sanctuaries and national parks throughout the country.
The constitution of Central Empowered Committee is the positive step taken by the Court to preserve forest resources. Any individual having grievances against any steps taken by Government or any other authority in purported compliance with the order passed by the Supreme Court will be at liberty to move the committee seeking suitable relief. Any application which cannot be disposed off by the Committee can be referred to the Supreme Court.
Also Read: History of Environmental Protection in India
Forest conservation law in India is not only impacted by the Godavarman case alone but also by the decisions of the Supreme Court in the Centre for Environmental Law, WWF- India v. Union of India which is related to protection of National Parks and Sanctuaries. Although the principle concern of the case is related to the issues of settlement of rights in National parks and Sanctuaries, yet its scope is much beyond this issue. The most significant was the order of 13-11-2000, wherein the Supreme Court through interim order restrained all State government from dereserving National Parks, sanctuaries and Forests.
The contributions of the judgments in these cases have made unique contribution to the movement for conservation of forest in India. The Godavarman case is undoubtedly one of the classic cases for the study of continuing mandamuses and the scope of Public Interest Litigation.
CONCLUSION: Role of Supreme Court in Forest Conservation
The Judiciary has contributed to the development of forest law in India by widening the scope of locus standi and entertaining Public interest litigation in India, enunciating a web of doctrines and interpreting Constitutional law from environmental perspectives. It is true. The provisions of Forest law were mere letters but the judicial interpretation has given life and blood to them. The myth created by the black letter law tradition that judges do not make law but merely find it or interpret is not true in the field of environmental law in Indian context. They do make law.
The Godavarman case and Centre for Environmental Law, WWF- India v. Union of India are the best examples of it. The Supreme Court has tried to fill the gap between law and its implementation by creative interpretation of forest laws in India. The judiciary has performed the role of law maker and established various committees and empowered them to enforce the provisions of forest laws.
The thrust for economic development and the need for protection of forest resources has put a challenge for the developing country like India. In such situation the apex Court has tried to strike a balance by giving green signals to big projects and dams in the interest of the development of the county but at same time the efforts have been made by the court to take care of the environment impact assessment of these projects and protection of the rights of the forest dwellers and taking care of their rehabilitation and other issues.
It can be concluded that the judges do make law. The judicial law –making is the part of the judicial process. Today, it is no longer a matter of doubt that the substantial volumes of law governing the lives of citizens and regulating the functions of the State flows from the decisions of the Superior Court. The Supreme Court’s effort in the conservation of the forest resources is unique.
BIBLIOGRAPHY: Role of Supreme Court in Forest Conservation
Saving the trees one constitutional provision at a time: judicial activism and deforestation in India, available at: https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1004&context=gjicl (visited on September 22, 2021).
 Kailash Thakur, Environmental protection law and policy in India 184 (Deep & Deep Publications, 2002).
  UKHL 1, 3 (H.L.) 330
 (1987) 1 S.C.R. 819 (India).
 The Constitution of India.
 Rights of Tribals and Forest Dwellers, available at: https://pib.gov.in/newsite/PrintRelease.aspx?relid=108222 (visited on September 22, 2021).
 Forest Conservation Act, 1980 (Act 69 of 1980)
 T.N. Godavarman Thirumulpad v. Union of India, (1996) 9 S.C.R. 982.
 Supra 11
 Centre for Environmental Law v. Union of India, AIR 1999 SC 354
 Saving the trees one constitutional provision at a time: judicial activism and deforestation in India, available at: https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1004&context=gjicl (visited on September 23, 2021).
 Centre for Environmental Law v. Union of India, AIR SCR 337 1995
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