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Mohit Paliwal
Institute of Law, Nirma University
Abstract
India has long history of forest-related law, British in garb of conservation of forest and produce thereof enacted forest laws. However, the main objective was to control forest produce in order to regularize it for the purpose of sell at international market and Moreover, to control the land resources. The Act was passed with bad intention and the state was more interested in economic aspect then that of ecological aspect of the forest and therefore, lacks forest friendly provisions. Thus, after independence various Act were enacted for the conservation of forest in India but proper implementation was major problem as the government itself was endangering the forest in the name of development but judiciary played active role in implementation of this laws through continuous monitoring.
Introduction
That as per the state of forest report 2019, the overall forest of India cover 21.67% of the total geographical area of country. According to survey reports it is necessary that 1/3 of the area of any country should be forest so as to maintain ecological balance. The forest is highly contributing to economic development of India as well as providing shelter to wildlife, forest dwellers, and tribal communities[1]. At the time of colonial period, the state was more interested in the economic aspect then that of ecological aspect of the forest. Forests were cleared at rapid extent due to high demand of timber. In order to clear the hurdles like forest dependent and smelting communities living in the forest, the colonial government state introduced forest laws to exercise monopoly over forests[2].
Indian Forest Act, 1865 & Indian Forest Act, 1878
The British government in order to control forest resources in India had introduced, The Indian Forest Act, 1865 which provides for state monopoly over forests and thereafter, Indian Forest Act, 1878 was enacted which further tightened grip of state over forest. This Act classified the forests into three category. The first one was the reserved forest which was in exclusive control of state and resources of Such forest were used for the commercial purposes further no customary right was given in reserved forest to any communities. The second one was the protected forest wherein the right of forest communities were recognized but not settled. The third category was village forests wherein if any revenue received from sell of produce of such forest by state government then it would go to the village communities[3].
Indian Forest Act, 1927
The 1878 Act led to unlimited state control over forest ignoring the customary right of the people and forest dwellers. The more and more protected forest was converted into reserved forest. This Act was later repealed and new Act was introduced known as Indian Forest Act, 1927[4] which further regularized the forests land and its produce. The Act was introduced to levied duty on the timber and other forest produce. This Act also provides different categories of forest.
Three type of forest were categories in 1927 Act. The first category was reserved forest wherein the government were empowered to consider any forest land or waste land as property of government by declaring it to be reserve forest. The right under this forest could be acquired through succession, grant or control by the government or through pre-existing rights. Certain activities were prohibited in reserved forest like clearing trees, setting fire, fishing and hunting. The second category was of protected forest where the state government was provided with power to notify any forest which is government property as well as unreserved forest as protected forest. Herein the government was provided with power to regulate activities such as reservation of trees, burning of charcoal and removal of forest settlers. The last one is the village forest where the state government has power to assign right over reserved or protected to any village community. However, all rule and regulation applicable to reserved forest would be applicable to a village forest[5].
This Act further provides for the settlements of right while notifying a reserved forest. A forest settlement officer was appointed in order to consider the claims of local inhabitant right over forest land. Once the right over notified land have been settled no new right would considered on the said land. If no right has been claimed during the notified period then such right automatically get defeated after time period. The said Act further empower the state government to notify any land which is not a government property as forest.
Forest (Conservation) Act, 1980
The prime objective of Indian forest Act, 1927 was to generate revenue. The idea of state monopoly over land in fact gave way for commercialization of forest produce which lead to widespread destruction of forest ecosystem as thousands of threes where cut down during this period. Therefore, in order to curb the exploitation of forest, the Forest (Conservation) Act, 1980[6] was enacted. The purpose was to limit the use of forest land for non-forest purposes and control of de-reservation of forests that have been reserved under the Indian Forest Act, 1927. Further, new provisions was inserted to curb the leasing of forest land to private corporate bodies and to preserve the trees felling naturally.
Role of Judiciary in Conservation of Forest
The objective behind the insertion of aforesaid Act was prevent deforestation and economic imbalance. This Act further took away the state government control over forest. It makes prior approval of central government necessary before the use of forest for any non-forest activity.
The judiciary has played pivotal role in defining the limitation and scope of forest law through judicial activism. The Supreme Court in the landmark judgment of T.N Godavarman Thirumulpad v. Union of India[7] define the term “Forest” which means all statutory recognized forests and the “forest land” includes forest as well as any area recorded as forest in the government record. This case is still pending before the court while treating it as continuous mandamus and has assumed the role of police maker and introduced the afforestation schemes. Through one another order an ad hoc compensatory afforestation fund management and planning authority (CAMPA) was constituted. Moreover, in the case of Sushila Saw Mills v. State of Orissa[8] wherein the Supreme Court held that banning of saw mill within a distance of 10 kms from the reserved forests does not violates Article 14[9] of the Constitution.
Contribution and Criticism of Judiciary
The major contribution of Judiciary towards the forest conservation was to setting up the central empowered committee (CEC) in the year 2002 under section 3(3) of Environment Protection Act, 1986 pursuant the order of Supreme Court. The role of CEC is to decide the complaint filed by individuals regarding the step taken by government and to check the due compliance with the order passed Supreme Court[10].
This interference of judiciary has been criticized on many ground. The judiciary has entered into the domain of legislative functions like the banning the transport of timber, fixing the place for sawmill outside the forest land. In the Godavarman case the Supreme Court even actively interfered on the issue of expenditure of money received by states from user agencies. Many a time dealing with the matter of forest encroachment, Supreme Court has given unsound and impractical direction as well which led to violation of right of forest independent. Therefore the role of judiciary need to be limited the extent of its ability to manage the forest affairs. Further role of judiciary is need to be analyzed from the point of view of separation of power doctrine envisaged in the Constitution. Moreover, the right of forest dependent communities must also be given due share and every affairs of forest should not be assessed from the view of conservation forest.
Conclusion
The role of government often criticizes when it comes to Forest Conservation as many Acts and laws is introduced but miserably failed when it comes to implementation and therefore, the Supreme Court and High Courts intervene to curb the destruction of forest by the Industrialist and sometimes by government itself in the name of development. However, such intervention must not unreasonable. Thus, it can be concluded that India has framed various law for the conservation but better mechanism for the implementation.
[1] India State of Forest Report, 2019; Available at: http://www.indiaenvironmentportal.org.in/files/file/isfr-fsi-vol1.pdf. [2] NCERT, Forest Society and Colonialism, Class 9th Chapter 4; Available at: https://ncert.nic.in/textbook/pdf/iess304.pdf. [3] Suparna Sanyal Mukherjee, Indian Forest Act and Democracy: Effect on the Traditional Tribal System, MAINSTREAM, (April 16, 16); Available at: https://www.mainstreamweekly.net/article6363.html. [4] Indian Forest Act, 1927. [5] Videh Upadhyay, Legal and Policy Frameworks related to Forest Conservation; Available at: http://awsassets.wwfindia.org/downloads/lecture_notes_session_9_1.pdf. [6] The Forest (Conservation) Act, 1980, No. 69, Act of Parliament, 1980. [7] T.N Godavarman Thirumulpad v. Union of India, (1997) 2 S.C.C. 267. [8] Sushila Saw Mills v. State of Orissa, (1995) 5 S.C.C. 615. [9] INDIA CONST. art. 14. [10] Armin Rosencranz & Sharachchandra Lele, Supreme Court and India’s Forest, 43 Issue No. 5 EPW (Feb. 2, 08); Available at: https://www.epw.in/journal/2008/05/commentary/supreme-court-and-indias-forests.html.