THE GROWTH OF FOREST CONSERVATION LAW IN INDIA

Ever since the advancement in science and technology has taken place, the environment
around us has witnessed severe depletion and deterioration. The balance of nature has
constantly been disturbed. In order to control the damage done to the environment and to
regulate developmental activities so that they can take place in an environmental friendly
way, various legislations have been enacted in this area.

A look at the environmental ethics of the olden times contained in Vedas, Upanishad, smritis
and puranas discloses environmental harmony and conservation since sun, air, fire, water and
earth were considered as manifestations of divine personification.1 In ancient India, there
were various traditions which facilitated the protection of the environment around us. It was
considered to be a ‘duty’ or ‘dharma’ to protect and preserve the environment.

Forests form a very important part of our natural ecosystem. They help in maintaining
ecological balance. They render he 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.2

During the last century, forests have been cut at rates unequalled in the world and they are
disappearing at an alarming rate. In India, it has been claimed that we have got vegetation
cover over 19% of the total land area as against the accepted ideal of 33% in India and 40%
internationally. Thus, vegetation cover is much less than required.3

The first important legislation relating to forests in India was the Indian Forest Act of 1927.
The Act was enacted by the British and focused more on their colonial interests rather than
forest conservation. Based on a revenue-oriented policy, its main object was to regulate
dealings in forest produce and augment the public exchequer by levy of duties on timber.4
The Act, therefore, proved to be inadequate for obtaining the objectives of forest
conservation and protection in India.

1
P. Leelakrishnan, Environmental Law in India (3 rd ed, 2008).
2
P. Leelakrishnan, Environmental Law Case Book (2nd ed, 2006).
3
S. C. Shastri, Environmental Law(4th ed, 2012).
4
P. Leelakrishnan, Environmental Law in India (3 rd ed, 2008).
This led to the enactment of Forest (Conservation) Act 1980. Section 2 of the Act makes a
stringent rule according to which without the prior approval of the Central Government, no
state government or other authority can make any order to :
i) De-reserve forest;
ii) Use any forest land for non-forest purpose;
iii) Lease out forest land to private agency;
iv) Cut naturally grown trees in forest land for the purpose of using it for re-afforestation.5

This era also saw various mass movements like the Chipko and Tehri movements aimed at
preserving the environment. The Scheduled Tribes and Other Forest Dwellers (Recognition
of Forest Rights) Act, 2006 was enacted to recognize and protect the rights and interests of
the forest dwellers.

Previously, the courts were reluctant to entertain environment matters especially the ones
which related to policy matters. The case of Society for the Protection of Silent Valley v.
Union of India6 (also known as the Silent Valley case) is an example of the same. A Hydro-
Electric Project was planned for the Silent Valley in the district of Palghat in Kerala, which
contained one of India’s largest evergreen forests. A petition was filed against the State of
Kerala as the said Project would adversely harm the environment. The Kerala High Court
casually refused to entertain the petition proving that environmental issues were not
considered as important as developmental activities.

Unregulated and indiscriminate mining activities were taking place across the forests of the
country causing irreparable loss to the environment. However, it was in the late 1980s and
with the onset of the 1990s that the judiciary started to take an active role in the protection of
the forests of India. Judicial activism began and in a series of cases the judiciary took steps to
ensure that development is not done at the cost of reduction in forest cover or depletion of
forest resources. The first such landmark case was the case of Rural Litigation and
Entitlement Kendra v. State of U. P.7

5
Forest (Conservation) Act, 1980
6
O. P. Nos. 2949 and 2025 of 1979 decided on 2-1-1980 (Ker).
7
1986 Supp SCC 517.
(also known as the Dehradun lime quarries case). Illegal mining operations were being
carried out in the hills of Mussoorie and nearby areas causing adverse impact of the
environment and leading to various environmental disturbances. The Supreme Court took up
the matter, appointed Committee to enquire and also ordered for all fresh quarrying to be
stopped.

Ambica Quarry Works v. State of Gujarat 8was another case wherein the Supreme Court held
that renewal of mining licence would not be allowed in the forest area.

VARIOUS ORDERS GIVEN IN THE GODAVARMAN CASE AND THEIR

IMPLEMENTATION

The Supreme Court’s intervention on the issue of forest conservation over the last one and a
half decade is unparalleled in terms of scope and extent.9The Courts have recognized the
important role of forests in maintaining the ecological balance. The focus in the Godavarman
case was that of implementation of the Forest (Conservation) Act, 1980.

The most significant order given in the case on 12.12.1996 defined ‘forest’ for the first time
wherein it explained that the word ‘forest’ must be understood according to its dictionary
meaning. This description covers all statutorily recognized forests, whether designated as
reserved, protected or otherwise for the purpose of the Forest Conservation Act. The Court
further explained the term ‘forest land’, and stated that the word 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.10

Mining is one of the primary threats to forests.11 Mining operations are hazardous in nature.
When it came to mining activities, various aspects of the same have been discussed at great
lengths in the Godavarman case. The Supreme Court has tried its best to strike a balance
between mining activities necessary for development and forest conservation. Mining
activities in forest area without prior approval is violative of the Forest Conservation Act,

8
AIR 1987 SC 1073.
9
Ritwick Dutta and Bhupender Yadav, Supreme Court on Forest Conservation(3rd ed, 2011).
10
http://awsassets.wwfindia.org/downloads/indias_forests_and_the_judiciary.pdf last accessed on May 9, 2018.
11
http://awsassets.wwfindia.org/downloads/indias_forests_and_the_judiciary.pdf
last accessed on May 9, 2018.
1980. All on-going activities under invalid license were ordered to cease. The Court never
took the view that it is completely against all sorts of mining activities. But the ones
detrimental to forests must and should cease. Forest Conservation Act (FCA) permission was
made mandatory retrospectively. All applications seeking mining permission, pending
approval with all the State Governments were required to be forwarded to the Central
Government.

The early Godavarman cases relating to mining came up before the Supreme Court in 1998
regarding mining activities in Mirzapur and Doon districts of Uttar Pradesh. Rampant illegal
mining was taking place across the state. The Court ordered for a Committee to be set up to
investigate in the matter and owing to the gross inaction on the part of the State government
officials, Court closely looked into and monitored the orders passed by it from time to time.
The Court made it clear that it has to be informed about all developmental activities which
relate to illegal mining.
The orders given in the Godavarman cases which relate to mining in different areas have
been discussed in detail below:

The Kudremukh Case12: Continued mining operations were carried out by the Kudremukh
Iron Ore Company Limited (KIOCL) in the Kudremukh National Park in Karnataka in spite
of the orders passed by the Supreme Court. A Forest Advisory Committee was set up under
Section 3 of the Forest Conservation Act, 1980 which recommended that mining may be
allowed for a period of five years, i.e., upto 2005 so that the weathered secondary ore
available in the already broken area is exhausted (subject to certain recommendations by the
Committee). The Court also prohibited mining activities within National Parks and Wildlife
Sanctuaries without obtaining specific permission from the Court, retrospectively.

The Court looked into the opinion of various expert bodies to decide the complex technical
issues of this matter. The Court by this order has taken the work of closure of the mine and
other related aspects out of KIOCL area of operation. This is another example of the Court
co-opting various expert bodies to deal with various technical aspects of the matter.13

12
T. N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606.
13
http://awsassets.wwfindia.org/downloads/indias_forests_and_the_judiciary.pdf last accessed on May 9, 2018.
Lafarge Cements Case : The mining operations by Lafarge Cements (Lafarge Umiam
Mining Private Limited) in the State of Meghalaya led to a series of orders from the Supreme
Court starting from June, 2007.14
The cement factory is situated in Bangladesh whereas the mine is situated in Meghalaya. It
was disclosed during an inspection that the place where mining activities were being carried
out was a dense forest whereas the Environment Impact Assessment Report prepared for the
same stated that there was no vegetation cover in the said area. Because of the same, there
was no approval for the said mining activities under the Forest (Conservation) Act, 1980.

The Court put an interim stay on the mining activities when the matter came before it.
However, later the Court had to allow the mining activities pursuant to an international
agreement between India and Bangladesh. The Court also directed Lafarge to submit a
proposal to have the cement factory sited in Meghalaya itself. However, then the matter again
came up before the Court, new facts emerged and Court ordered for all mining activities in
the said area to cease. The Court, subsequently, directed the Ministry of Environment and
Forest to consider granting environmental clearance to the division of 116 hectares of forest
land to Lafarge and to take into consideration various conditions which were mentioned in
detail in the order.15

Goa Mining : A large percentage of the mining activities approved by the Government were
being carried out in Goa. Matter of 18 temporary licenses came up before the Court out of
which 16 were working properly so the Court permitted those 16 mines to operate subject to
certain conditions like compensatory afforestation. Supreme Court had earlier stayed the
grant of those 18 TWP (Temporary Working Permission). The State Government argued that
there were no degraded forests in the State available for compensatory afforestation therefore
it was recommended that the money can be utilized for improving the forest, mangroves and
National Parks and Sanctuaries.

Aravalli Mining :Various mining activities were taking place in the Aravalli ranges across
Haryana and Rajasthan. The Court sought a report from the Ministry of Environment and
Forests regarding the impact of mining activities amongst other on the water resources in the

14
Ritwick Dutta and Bhupender Yadav, Supreme Court on Forest Conservation (3rd ed, 2011).
15
Ritwick Dutta and Bhupender Yadav, Supreme Court on Forest Conservation(3rd ed, 2011).
area.16A large number of mining leases were granted in these areas and the same has resulted
in high ecological imbalance. The Chief Secretaries of State of Haryana as well as Rajasthan
were directed to ensure that no mining activity in the Aravalli hills is carried out. The Chief
Secretaries failed to submit compliance report.

The Court ordered all mining activities which were going on without approval from the
Ministry of Environment and Forest to be stopped. The Court suspended all mining activities
in the Aravalli hills falling in Haryana and Gurgaon including Mewat till a Reclamation Plan
was submitted to the Court by the State of Haryana and the Ministry of Environment and
Forest which would include steps required to be taken to restore the environmental damage
that had been done.

The matter again came up before the Court in October, 2009 wherein images were presented
before the Court which showed that the Aravalli hill range in Gurgaon and Mewat were
completing destroyed by mining. The State government contended that complete stoppage on
mining of minerals would result in scarcity in the building materials and road construction
market. Court therefore allowed for mining of minor minerals to be carried out in 600 hectare
of land in Faridabad district subject to certain conditions some of which are :
1.State government shall issue a notification laying down guidelines for the procedure for
granting license.
2.It shall establish an Aravalli Rehabilitation Fund and a Monitoring Committee.
3.The State government will take immediate steps for preparation and implementation of
Reclamation and Rehabilitation Plan for the area degraded as a result of the mining activities.
4. Actual mining operation will start only on the submission and approval of the Reclamation
and Rehabilitation Plan.
5. Leaseholders involved in mining activities shall obtain all clearances including
environmental clearance and also the required approval under the Forest Conservation Act.
6. Failure to comply with these conditions would result in closure of mining activities.16

In February 2010, it was brought to the notice of the Court that according to the definition
given by the State of Rajasthan only peaks/parts of hills which are 100 meters above the
ground level are to be treated as Aravalli Hills. The Court directed that the Forest Survey of

16
Ritwick Dutta and Bhupender Yadav, Supreme Court on Forest Conservation(3 rd ed, 2011).
India should carry out satellite imagery of the entire area. The cost of the same shall be met
from CAMPA funds.
The Court further restrained all mine operators whose lease renewal applications were
pending with the authorities from undertaking any mining operation.

ANALYSIS OF THE SAID ORDERS

Over a period of time, the Courts have not only demonstrated to adjudicate on those issues
that were brought before them, but have also attempted to expand the scope of the petitions as
well.17They have adopted innovative methods and State-wise approach for same kind of
problem occurring in different states has been taken so that an area-centric solution can be
arrived at keeping in mind various conditions of that particular state or area. A big
achievement was indeed providing the definition of ‘forest’ which was not done in any of the
forest related legislations and hence, was the subject of controversy in many cases.
The orders given in the Godavarman case have been criticized by many. Legal commentators
Rozencranz and Lele observed in a leading journal:
“The T. N. Godavarman v. Union of India case in the Supreme Court, also known as the
“forest case” is an example of the judiciary over stepping its constitutional mandate. The
Court has effectively taken over the day- to-day governance of Indian forests leading to
negative social, ecological and administrative effects...”18

Vast criticism has been observed because the Court has passed various orders in a number of
matters relating to and interfering with policy issues. But the important question to be asked
here is whether such interference was a necessity considering the crisis of large scale forest
depletion that had been going on for decades.

Many are skeptical regarding the long term implementation and impact of the various orders.
It remains to be seen whether the Court can successfully transfer control to the appropriate
governmental organizations, whether it can effectively manage the organizations it has
formed, and whether it will avoid further economic and social disruption while attempting to
restore India’s forest cover.19

17
http://awsassets.wwfindia.org/downloads/indias_forests_and_the_judiciary.pdf last accessed on May 8, 2018.
18
http://www.environmentportal.in/files/epw1.pdf last accessed on May 8, 2018.
19
http://elr.info/sites/default/files/articles/37.10032.pdf last accessed on May 8, 2018.
However it is pertinent to note that even when almost 250 plus orders have been passed in the
Godavarman case, the implementation of many have been clearly overlooked. When the
cases started in 1990s, mainly the State and some small industries were the violators. As the
years passed, many private players and large corporate houses entered the arena and because
many of them acquired the approval of the Central Government for carrying out
developmental activities under the garb of sustainable development, interference of the
Courts became a dire necessity than it ever was before. The Ministry of Environment and
Forest was merely a soft regulatory mechanism. The present scenario, however, is that in
many cases now the decisions of the Ministry of Environment and Forest are subject to final
approval from the Supreme Court of India.

The National Green Tribunal Act, 2010 is the latest addition to the legislations relating to
forest conservation in India. The Tribunal has powers to hear matters concerning the Forest
(Conservation) Act, 1980 which forms thecore of the various decisions in the Godavarman
case.20
This Act provides for the first such initiative to set up ‘environment courts’ in India.

CONCLUSION
The original intention of the framers of the Forest Act was to safeguard the imperial and
feudal interests of the time.21 Changing time required changing methods. The importance of
environment protection came to be recognized by the Courts and thejudiciary started taking
an active interest in maintaining ecological balance. Courts tried to fill in the gaps created by
legislature and executive.

The development versus environment debate has been going on for long now. While the
Centre and states were articulating social interests and negotiating with one another, the
judiciary was not a silent witness to the accommodation of environmental arguments.22 In M.
C. Mehta v. Union of India 23, the case relates to the mining activities in the Aravalli hills.
While ordering for complete ban on all mining activities in the Aravalli range falling in the
state of Haryana, the Supreme Court affirmed that : “environment and ecology are national

20
Ritwick Dutta and Bhupender Yadav, Supreme Court on Forest Conservation(3rd ed, 2011).
21
P. Leelakrishnan, Environmental Law in India (3 rd ed, 2008)
22
P. Leelakrishnan, Environmental Law Case Book (2nd ed, 2006).
23
(2009) 6 SCC 142
assets. They are subject to inter-generational equity. Time has now come to suspend all
mining in the above area on sustainable development principle which is part of Articles 21,
48-A and 51-A(g)”

The Supreme Court has rightly pointed out in the case of T. N. Godavarman Thirumulpad v.
Union of India24 that : “We owe a duty to future generation and for a bright today, bleak
tomorrow cannot be countenanced.”
A critical issue while analyzing the Godavarman cases is the change in trend of the judiciary
in handing forest conservation in India. While the early phase dealt with the systematic
reform in the forestry sector, the phase starting from 2000 has been characterized by a ‘pay
and deforest’ regime –a kind of combination of the precautionary principle and the polluter
pay principle.25 There is no denying the fact that the orders have played a significant role in
forest conservation by looking into and regulating the forest based activities, but the recent
trend is towards the fact that even the Supreme Court in most cases allows for mining
activities or other developmental projects to be taken up subject to certain regulatory
measures. The Godavarman case represents perhaps the single largest intervention by any
Court in the world on any single issue.26 There is no doubt in saying that judicial activism by
means of continuing mandamus of the various orders given in the Godavarman case were
largely to compensate the inaction on the part of the legislature and more so the executive to
carry out their functions. However, a strong monitoring system must continuously be in place
so that the orders do not remain just on paper.

24
AIR 2003 SC 724.
25
Ritwick Dutta and Bhupender Yadav, Supreme Court on Forest Conservation(3rd ed, 2011)
26
Ritwick Dutta and Bhupender Yadav, Supreme Court on Forest Conservation(3 rd ed, 2011)