SC Restores ’96 Definition Of Forests In Recent Interim Order

The Supreme Court, on February 19, directed the Union Ministry of Environment, Forests and Climate Change (MoEFCC) to revert to an older definition of forests whose protections were more “broad and all-encompassing”, as opposed to the more narrow definition in the amended Forest (Conservation) Act. The directions were made in an interim order as part of an ongoing case challenging the government’s amendments. A final verdict in the case will be made in July.

The Forest (Conservation) Act of 1980 was passed to limit infrastructure development activities on forest land, but it was amended in 2023 to reduce the scope of its applicability. The amendments to the Act, now called the Van (Sanrakashan Evam Samvardhan) Adhiniyam, 1980, limit legal protections to only those forests which are notified in the Indian Forest Act of 1927 and which find mention in government records. This opens up vast tracts of unrecorded forest land to other uses without any protections or compensatory mechanisms. According to the 2021 Forest Survey of India, 28% of India’s forests are unrecorded.

A Supreme Court bench, led by Chief Justice D.Y. Chandrachud, has now directed the government to comply with the definition in the landmark 1996 Godavarman judgment, in which it said that apart from those notified and found in government records, all forests resembling “dictionary meaning” would be entitled to protections under the Forest (Conservation) Act, irrespective of ownership and status. It was decided in the 1996 order that state governments would set up expert committees and conduct surveys to make a note of all such forests falling within their jurisdictions. In its interim order on February 19, the Supreme Court asked the government to publicly reproduce these state records by April 15.

The Supreme Court was acting on an urgent plea by a group of retired forest officials and conservationists to stay the implementation of the amended law. Their petition challenging various aspects of the Van (Sanrakashan Evam Samvardhan) Adhiniyam was filed in October 2023, after the amendments were given the President’s assent and passed by both houses of Parliament without discussion.

During court proceedings on November 30, 2023, the Union government assured the Supreme Court that it wouldn’t take any action based on the amended definition of forests until further orders. But the government had already notified the Rules and Guidelines for the amended law a day prior, on November 29, instructing states on how to identify forests as per the amended law. “The contents of the Rules and Guidelines and the decision-making powers that they give to various government officials without doubt amount to precipitative actions,” the petitioners wrote in their petition.

Recording Forests

Despite nearly three decades since the Godavarman judgment was passed, it is unclear whether states followed through with the survey exercise. The central government has repeatedly said the amended law wouldn’t violate the apex court’s 1996 judgment because states have identified and recorded all forest areas, including those deemed forests by their dictionary meaning.

The central government even told a Joint Parliamentary Committee last year that these surveys “have been taken on record,” when proposing the amendments. However, a Right to Information (RTI) application filed on January 17 by Prakriti Srivastava, a retired forest officer, revealed that the Union Ministry’s Forest Conservation department had no record of such reports.

“In this connection, it is to inform that no information on report submitted of Expert Committees by State/Union Territories is available in the Forest Conservation Division, as the subject matter of the information pertains to the respective State government/UTs,” said the reply on January 25, which was reviewed by Mongabay-India. The request was forwarded to each state department. As of February 26, the state forest departments in Odisha, Uttar Pradesh, Haryana, Arunachal Pradesh and Assam had replied. Of these, the first three states replied saying they too did not have any records of the expert committee reports and further forwarded the request to other offices.

“This is unacceptable, since these records should be with the state headquarters,” Srivastava, who is also a petitioner in the case, told Mongabay-India. “It’s very concerning also because the Ministry and Director General of Forests told the Parliamentary Committee that the state reports had been taken on record, and that they would be included in the implementation of the Act. But the Central government doesn’t seem to have a copy of these reports anywhere,” she added.

In its guidelines issued in November 2023, the central government has given states one year to “prepare a consolidated record of such lands, including the forest-like areas identified by the Expert Committee, unclassed forest lands, or community forest lands, on which the provisions of the Adhiniyam shall be applicable.” As per the Forest Survey of India, unclassed forests are those which are “are recorded as forest but not included in reserved or protected forest category. Ownership status of such forests varies from state to state.”

Between Government And Courts

In its interim order, the Supreme Court also said no safaris and zoos in forest areas (which fall outside Protected Areas) could be permitted without its prior approval. The amended Act says zoos and safaris are “ancillary” to conservation efforts, which was challenged by the petitioners.

“The history of the Godavarman case has shown that when the apex court is approached to mediate or reverse an executive action, the deliberations have remained centralised. This is especially when legal and policy matters are negotiated only between courts and the governments,” said Kanchi Kohli, an independent legal environmental expert. “The challenge to the amended Forest (Conservation) Act is also an opportunity to redesign and democratise decision making processes by creating a feedback loop. This will help develop a bottom up understanding of the enforcement challenges and shape regulations through a closer involvement of forest dwelling and dependent communities those who are directly affected by these decisions,” she added.

Experts had told Mongabay-India earlier that the amended law does not explicitly safeguard the rights of forest dwelling communities over land which may be diverted for development projects, since consent is no longer required before the project is granted forest clearance.

The petition also challenges the exemptions granted towards “security infrastructure” and the construction of “strategic linear project of national importance and concerning national security,” within 100 kilometers of international borders. The Supreme Court will pronounce its final judgement on the case in July.

“A law that is so manifestly arbitrary in its scope, blatant in its intent to circumvent the interpretation of law as adopted by this Hon’ble Court and will likely endanger ecological and food security of the country must be struck down,” the petitioners wrote.

(Published under Creative Commons from Mongabay-India. Read the original article here)