Role of Judiciary in the Conservation of Forests

I.INTRODUCTION

Deforestation and decline in forests are on increasing frequency as a result of industrialization and globalization. The total number of forests in our country is declining as a result of the felling of forest trees for development and consumption. The conservation of forests requires action since they constitute a significant portion of the biodiversity. As has been quoted by Senior Programme Officer of the UNEP-WCMC, “We cannot protect the earth’s biodiversity without protecting our forests. They harbor most of the world’s terrestrial biodiversity and support food security, jobs, and livelihoods for millions of people.”  
Although there are tons of legislative laws for forest conservation, but as it is said that “Without adequate implementation, a law is merely theory on paper”. In India we have Forest conservation laws but it is essential that its implementation must be done. In this Article, “the role of judiciary in the conservation of the forests” is discussed, including its role in the implementation of Forest Conservation Law, along with its other major roles for forest conservation.

II.CONSTITUTIONAL MANDATE AND FOREST CONSERVATION 

• The Constitution of India imposes duty on the State and People of India to protect the environment including forests through “Article 51(A) (g) and Article 48-A”. 
  Article 48-A, imposes the duty on the State “to protect and improve the environment and safeguard the forests and wildlife”. 
  Article 51- A (g), imposes duty on the Citizen of India to “protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”
• The "Forest" was first covered under "Entry 19 in List II of the VII Schedule." It was a matter of State. However, the Parliaments eliminated "Entry 19 in List II of the VII Schedule" after comprehending the national importance of forest conservation. Thereafter, a new entry linked to forests, “Entry 17-A”, was inserted to the “Concurrent list of Schedule VII” through the "Constitution (Forty-second Amendment) Act, 1976." As a result, both the State and the Centre government will be able to pass forest-related legislation.

III.LEGISLATIVE PROVISIONS FOR THE CONSERVATION OF FORESTS 

A.THE FOREST ACT, 1865
The Forest Act, 1865, was the first forest act. However, its aim was not to conserve the environment. Instead, it was to acquire forest areas in order to providing the timber to railway officials and establish a claim on public territory.  

B.THE FOREST ACT, 1927
Thereafter, to enhance the efficiency of the law for forest protection, the “Forest Act,1927” was enacted. However, the objective of this act wasn't forest conservation. Because this act was made in British colonial era, it indicated nothing but the “exploitative intentions of colonial feudal society of the time” rather than the “environmental and ecological interests to preserve the forest” . Since the Act was entirely industry-friendly, it was leading to the depletion of forests. 

C.THE FOREST (CONSERVATION) ACT, 1980
The aim of “Forest (Conservation) Act of 1980(herein after referred as FCA 1980)” is to conserve the forests and the matters ancillary or connected with it, which is clearly stated in “The Statement of Objects and Reasons” of the Act. 

The Act states that prior approval of Central Government is required for both the “de-reservation of reserved forests” and “the utilization of forest land for non-forest purposes”. The law also empowered the Central Government to constitute a committee to advise the Central Government regarding the provision of the Government’s approval. 

IV.ROLE OF INDIAN JUDICIARY FOR THE FOREST CONSERVATION

The sheer existence of laws is insufficient for forest conservation. It is crucial that the law be put into action. Laws for the conservation of forests did exist, it is true. But it failed to perform that well. “Here, Judiciary of India has been performing the stellar role by taking a Herculean task of comprehensive conservation and protection of forest across the country” . With the help of various landmark cases, it has covered almost all aspects related to forest conservation and contributed in many ways for the conservation of forests. 

A.PUBLIC INTEREST LITIGATION
Under the Doctrine of Public trust, “Public Interest Litigation (PIL)” is allowed. The scope of the “locus standi” has been broadened by the Judiciary's use of PIL. Any “public spirited person” can go to the higher courts to seek remedy.

By allowing PIL, the Supreme Court had dealt with many issues concerning the forest conservation, protection and preservation of wildlife Pyarelal Vs State (AIR1995SC1159), Lakshman Vs State of MP (AIR 1983 SUPREME COURT 656) . Through PIL, Supreme Court interpreted and implemented the FCA 1980 and given many landmark judgments again and again so as to conserve the forests, as well as the forest dwellers and wildlife.

B.INTERPRETATING AND IMPLEMENTING THE FOREST ACT, 1980

• The Supreme Court have interpreted and enforced the provisions of the “FCA 1980” in the case of T.N.Godavarman Thirumulkpad v. Union of India (AIR 1997 SUPREME COURT 1228) . In this case the Supreme Court interpreted the term “forest”. Earlier, “forests” were confined to the “reserved forests”, receiving “maximum amount of legal and environmental security”. However, in this case the Court interpreted it and held that “Forests must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof.
  Thus, by expanding the scope of “forests”, to include the “forests of those dictionary meaning covering all statutorily recognised forests, whether designated as reserved, protected or otherwise and also any area recorded as forest in the Government record irrespective of their ownership and classification”, it had provided the protection and conservation to all kinds of forests against dereservation and non-forest activities.
  For implementing the interpreted provisions of the Act, the Court issued many directives. In the whole nation, complete ban had been imposed on the felling of trees, except those to which the central government had approved. The Court held that “All non-forest operations in forest regions will be halted if prior authorization from the central government is not obtained. As a result, several saw mills, including veneer and plywood mills, as well as mining enterprises, were shut down by court order. The felling of trees in all forests has been outlawed, and felling and logging are only permitted if they are carried out in conformity with the State Government's operating plans. The Court has established central and state committees to ensure that its directives are carried out properly.”
• In the case of Shree Bhagawati Tea Estates v. Government of India (AIR 1996 SC 201), the Supreme Court yet again interpreted what was laid in the FCA 1980. Here, the petitioner challenged the validity of “Kerala Private Forests (vesting and Assignment) Act 1971”, contending that this act violated the provisions of FCA 1980. The “Kerala Private Forests (vesting and Assignment) Act 1971” aimed to acquire private forests land which then will be given to the landless peasants. Contention was made that “this acquisition for agricultural purpose would mean clearing of forests on such land, and this was not permissible without the approval of the central government. It was also contended that since FCA prohibits the leasing of lands to private individuals or industries therefore it should not be distributed to the peasants”. The Court held that “FCA 1980 do not completely ban on granting the lease to private individuals or industries, however, it should be done with prior approval of the central government”. Thus, the Court dismissed the petitioner’s contention and upheld the legality of “the Kerala Private Forests act”. And further held that “along with the need of conservation, the need of the livelihood problems of the poor should also be addressed”. 
• Likewise, for the purpose of grant or renewal of license of the forest area, through numerous judgments, the Court have settled the provision of FCA and properly implemented it that the prior approval of Central Government is necessary to grant or renewal of license for non-forest activity in forest area. In State of M.P. and Ors. v. Krishnadas Tikaram (AIRONLINE 1994 SC 2), mining license was granted to the respondents before the FCA 1980 came into effect. After the Act came into force, the State Government renewed the license for 20 years without any prior approval of the Central Government. The Court held “the cancellation of the license as valid”. Similarly, in Ambika Quarry Works v The State of Gujarat (1987 AIR 1073), the Court held that “renewal of mining license after FCA came into force can be made only on getting prior permission from the Central Government.” In the case of Dhirendra agrawal v. State of Bihar and Ors (AIR1993PAT109), the Court held “it as a serious breach of duty when lease for stone crushing was renewed without prior permission of the central government”.  
• The Courts have cleared that non-forest activities not only include mining but also other non-forest activities. In the case of Rural Litigation and Environment Kendra v. State of Uttar Pradesh (1989 AIR 594) and Tarun Bharat Sangh Alwar v. Union of India & Ors. ( 1993 SCR (3) 21), the issue of mining was confronted. The Court prohibited the mining activities in the forest areas. 
• In the case of State of Bihar v. Banshi Ram Modi & Ors. (1985 AIR 814), the Court denied using the forest land for non- forest activities. 
• In B V Joshi v State of Andhra Pradesh (AIR1989AP122), the excavation of iron ore was denied by the court in the forest areas.
• In the case of Union of India v Kamath Holiday resorts Pvt. Ltd. (1996 AIR 1100), the Court criticized tourism in the forest areas.

C.WRIT OF CONTINUING MANDAMUS
Under the Article 32 and 226, “Writ of Mandamus” is issued for enforcement of the fundamental rights. “Continuing mandamus is a process by which the court issues directions periodically, keeps the matter pending and monitors the process of implementation”. The Supreme Court is utilizing the writ of Continuing Mandamus for the forest conservation. The “TN Godavarman Case” is still ongoing so that that the Court can keep issuing the “writ of Continuing Mandamus” from time to time on every hearing to the executives for different aspects of the forest conservation. This has streamlined the executive’s administrative actions. 

D.CENTRAL EMPOWERED COMMITTEE
The Supreme Court in “T N Godavarman” by its order (Writ Petitions (Civil) Nos. 202/95 & 171/96) dated 09-05-2002, constituted the “Central Empowered Committee (CEC)”. Under the “Section 3 (3) of the Environment (Protection) Act of 1986”, CEC was set up as an authority. It was established to hear and decide complaints regarding wildlife and forest matters.

• Any individual may plea the Committee for relief from any action taken by the Government or any other authority pursuant to a Supreme Court order in cases involving “encroachments, deforestation, wood-based industries, plantations, Working Plans, illegal tree felling, illegal mining, timber transportation, or any other conservation issue or with the implementation of the Forest (Conservation) Act, 1980, or the Wild Life (Protection) Act, 1980”. This Committee will decide on these applications “in accordance with the Court's directives”. If the Committee is unable to resolve the application, it may present its suggestions to the Supreme Court for appropriate orders or clarification.
• CEC become an “investigative wing” of the Supreme Court. Almost all the reports are sought by the Supreme Court before it passes any order on matters related to the conservation of forests. Various landmark orders have been passed by Supreme Court, for instance Report by CEC on “Ghats, Illegal mining in Bellary, Karnataka, Mining activities in Kudremukh National Park situated in fragile Western etc”.

E.COMPENSATORY AFFORESTATION MANAGEMENT & PLANNING AGENCY (CAMPA)
Another significant step taken by the Judiciary for the forest conservation is, constituting the “Compensatory Afforestation Fund Management and Planning Authority (CAMPA)”. It was constituted under “section 3 (3) of the Environmental (Protection) Act” for the management of the funds collected for the compensatory afforestation.

It is a body for “management of Compensatory Afforestration Fund” as well as collecting the “Net Present Value and other charges in lieu of diverted forest lands”. As National Advisory Council for "technical assistance, monitoring, and assessment of compensatory afforestation activities".

The CAMPA funds have been a huge assistance in improving damaged forests by providing funds for compensatory afforestation. In addition, the foundation of CAMPA has resulted in a decline in the need for forest projects. The requirements of imposing the Net Present Value and other taxes in place of diverted forest lands, as well as compensatory afforestation charges, had lowered forest land demand. People are also considering other options to this complicated and time-consuming practice.

F.GODAVARMAN CASE SERIES
The “Godavarman Case” series served as the primary vehicle for the judiciary's role in conserving forests. By numerous orders, the Court have touched each and every facet related to forest and wild life conservation in India. “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 State Government's inaction on forest protection problems is what led to this case.
• T.N. Godavaraman Thirumulpad in 1995 filed a writ petition in Supreme Court for protecting a part of the Nilgiris forest, where the felling of timber was leading to deforestation.
• The Court in its first order had interpreted the term “forests”. The Court ruled that “all woods must be subject to the provisions of the act, regardless of who owns them or how they are classified. The term "forest" will refer to any region listed as forest in the government description, regardless of possession, in addition to forest in the dictionary definition”. 
• Then by the order in 1996, it also enforced the provision of FCA for conserving the forests and thus “imposed the ban on the felling of tress across the nation”. Further, the Court banned all the “non-forest activity” in the forest area if it is done without the prior approval of the “central Government”. The order was given by the Court to constitute “Expert Committee” for the implementation of its orders.
• Constitution of “High-Power Committee” to supervise 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.
• Then by its order the Court ordered for the Constitution of “Central Empowered Committee (CEC)” under “Section 3(3) of the Environment (Protection) Act, 1986”, to resolve people's issues about issues of forest conservation including non-compliance with court orders by any authority.
• In the order of 2005, the court in case of using the forest area for non-forest purposes, made mandatory for all “States” to pay the “Net Present Value (NPV)” of the amount of land which will be used for “non-forest activity”.
• The Court in other order, directed for the constitution of “CAMPA under section 3 (3) of the Environmental (Protection) Act.” It was established to oversee the funding for compensatory afforestation.

It is evident from the discussion of the courts' contributions till now that the majority of them were made through the Godavarman case series. Be it the writ of continuing mandamus for giving orders to executives for proper implementation of FCA for forest conservation or constituting CEC or CAMPA or interpreting the “forest” for properly conserving all type of forest in implementation of the Act along with issuing directives and constituting the committees for its implementation. Through this landmark case, the court via continuing writ of mandamus had dealt with almost all aspects of the forest conservation. Thus, through this case, the Judiciary had changed the whole scenario for forest conservation.

G.APPLICATION OF INTERNATIONAL PRINCIPLES SUSTAINABLE DEVELOPMENT FOR FOREST CONSERVATION
“Principle of sustainable development” means that a balance must be maintained between the development and the environment. In simple terms, there should be development for human needs, however this should not fully degrade the environment. This is an international principle and in various judgments, the Supreme Court adopted this principle in order to resolve the issues of forest conservation through the tool of PIL.

In Himachal Pradesh v. Ganesh Wood Products (1996 AIR 149), the issue was regarding the felling of Khair trees for katha industries. Here the Court applied the “principle of sustainable development” and held that “The requirement of sustainable development requires that a proper evaluation of forest riches be conducted, and that the construction of companies based on forest produce be not only regulated, but also continuously monitored to guarantee that the required balance is not disturbed.”

In the case of M.C. Mehta v Kamal Nath and Others (AIRONLINE 1996 SC 711), the Supreme Court felt that there is a need to strike a balance between “public utility as well as necessity to maintain the environment”. The Court stated that, “Sustainable development is a strategy or programme for social or economic development that does not deplete the environment's natural resources. When we think on the present, we must remember the future. A bleak tomorrow cannot be tolerated for a beautiful day; we owe a duty to future generations.”

DOCTRINE OF PUBLIC TRUST

“Doctrine of the Public Trust” is developed by the ancient Roman Empire. It is founded on the belief that "natural resources such as the sea, air, water, and forests are extremely valuable to the general public, and making them available for private use would be unjustified.” This doctrine imposes a duty on Government to act as “a trustee for the natural resources and to protect it from exploitation by private use”.

The Courts in India accepted this doctrine as common law and have applied this doctrine in various cases for protecting the natural resources, including forests. 

In M.C Mehta v. Kamal Nath (AIRONLINE 1996 SC 71), “Our legal system is built on English law”, the Supreme Court said, and “it incorporated the 'doctrine of public trust,' which is inherent to British jurisprudence. The state is the trustee of nature, which is for the enjoyment and use of the entire people. Natural resources such as running streams, seashores, and ecologically sensitive terrain benefit the general public. The state is the trustee of these natural resources, and it is their legal responsibility to safeguard them from private ownership”. Hence, the Court quashed the “prior approval” which was given to the government to lease the forest area for creating a motel on it. And it further directed the Himachal Pradesh Government to take over the area and restore the forest area in its original condition.

POLLUTER PAY PRINCIPLE

This principle is based on the idea that “the polluter should be held responsible”. According to it “when the environment is damaged by the polluter, then they are held to be responsible to pay to victim the compensation as well as charges to recover from such damages”.  This is an international doctrine and the Court in many cases has adopted this doctrine in India for the forest conservation so that the damaged done to the forest can be restored and afforestation can be done.

In the case of M.C Mehta v. Kamal Nath (AIRONLINE 1996 SC 711), the issue was that the major area of River Beas, which was the part of the protected forests, was given to the respondent on a lease to build a motel for the commercial purpose. The Court held that under “Article 32” in PIL it can award “exemplary damaged”. The person responsible for the pollution will be liable for paying the “exemplary damages”. It will act as a deterrent for others to not to do the same. In this case the Court “imposed on them to pay the ‘exemplary damages’ of Rupees ten lakhs”.

H.THE NATIONAL GREEN TRIBUNAL

• In numerous judgments like “Indian Council for Environmental-Legal Action v. Union of India, M.C. Mehta v. Union of India, A.P. Pollution Control Board v. M.V. Nayudu”, the Hon’ble Supreme Court has observed that there is a requirement for the establishment of a fully-fledged “Environmental Courts”. 
• Taking this into account, the “Law Commission” recommended the formation of the “National Green Tribunal” in its “186th report”. 
• The “National Green Tribunal Act, 2010” was enacted by Parliament, and the “National Green Tribunal” was created as a result.
• It was established to deal with the issues regarding the environment, wildlife and forests. The jurisdiction of tribunal is in the environmental matters, which will provide speedy environmental justice. 
• It lessens the burden litigation in the higher courts.
•  It was proposed to set up at 5 places which were Delhi (Principle place for sitting of tribunal), Bhopal, Chennai, Kolkata and Pune.
  Hence, by suggesting the constitution of such courts, the Judiciary had contributed for the conservation of forests.

V.CONCLUSION

“Protect our Forests, Preserve our Nature.”
Conserving our forests is very crucial for our life on this planet. And our Indian Judiciary took this very seriously and played a part of “Knight in shining Armor” to protect India’s forest life. As been discussed, the Court have again and again by various judgments have proved to be a “protector of forests” when the legislation and Government failed to do it.

In many ways, the judiciary has played the most important role for conservation of forests in India. Through PIL it had entertained many cases regarding forests conservation. Also, through interpreting and proper implementing the FCA, the judiciary has given “life to the law” and have contributed for forest protection against all activities causing harm to the forests. The judiciary via its judgment have constituted the authorities like CEC and CPA, which is again an important role. By using writ of continuing mandamus, the court have given many orders regarding the forest conservation and it still giving directions.  However, the most important judgment given by court was of T. N Godavanman case. Through this case, the court has changed the whole scenario of forest conservation and had given many orders covering almost all the aspects of forest conservation. Through this judgment, the Court had played a role of an “activist” for protection and conservation of the forests. Judiciary also, by using various international doctrines, had given judgments so as to protect the forests. Lastly the suggestion for constituting the NGT was another significant contribution. 

Hence, from the above discussion, it can be seen how  the Judiciary had been the most important player for conserving the forests in India. The legislations were there, but it was the Judiciary who took the entire burden on its shoulder and given remarkable judgments and used various tools and doctrines for conserving and protecting the forests in India.