Making a difference

VALMIK THAPAR

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THE forests and wildlife of India suffered the greatest neglect from 1990 under Congress rule and in the tenure of Narasimha Rao. The Gandhi years were over and the Congress party without the Gandhi’s had no time for India’s wilderness. By 1995 gloom engulfed the conservation community. The political will to govern forest India had faded and without governance the plunder of India’s natural treasures had increased tenfold.

It was at about this time that the Supreme Court of India admitted writ petition 202 – this was a case concerning the deforestation in the Nilgiris and linked to someone’s private estate. Soon after in 1996, writ petition 171 was accepted which concerned deforestation in Jammu and Kashmir. It was through both these writ petitions that the Supreme Court was triggered to issue notices to all the states and union territories of India about a series of related issues concerning forests. In the last six years and over dozens of hearings, at least 150 orders and interim orders have been passed beginning with the well-known orders of 1996 where forests were redefined to prevent any loopholes in the law from being exploited which could result in the felling of trees or encouraging any other exploitative activity.

Felling was stopped throughout India except in accordance to a working plan approved by the central government, and in this case the approver was the Ministry of Environment and Forests. In many ways, in the absence of an Indira Gandhi and her political will, a void had been created and to fill it the court was forcing the ministry to act. All non-forest activities on forest land such as mining, sawmills and wood-based industries were stopped pending approval of the central government and clearance under the Forest Conservation Act. Felling of trees was totally banned in the tropical evergreen forests in the Tirap and Changlang areas of Arunachal Pradesh. All sawmills 100 km on either side of the border between Assam and Arunachal Pradesh were ordered shut down. The movement of timber from and between the northeastern states was stopped. In subsequent orders the removal of any tree or even grass was prohibited from national parks and sanctuaries. The definition of forest land covered all wildlife habitats of the country, be they privately protected or not.

The Supreme Court had done a remarkable job. God knows what the state of forest India would have been without these earthshaking orders. The power focus and role of the ministry changed as it was forced to do much more by the court. It was uncertain whether the ministry could deliver or play the role of an enforcer. Did the right people with commitment and courage exist within its fold who could act and take dynamic decisions? Most would have doubted it, the court included.

 

 

Quite unexpectedly one day in 2001, the apex court created two centrally empowered committees for the states of Madhya Pradesh and Chattisgarh. Petition 202 had attracted an enormous amount of interlocutor applications. They had to be reviewed and judged and a bunch of experts were empowered to do just that. Nearly 800 interlocutor applications had flooded the courts on the writs of 202 and 171. Whenever these cases came up for hearing the courtroom was full to the brim with countless lawyers and clients and fees that were difficult to even envisage – such was their magnitude. In many ways these writs had become the biggest cases in Supreme Court history.

The Madhya Pradesh and Chattisgarh committees were probably a test to see how they functioned to ease the load on the courts. And they must have worked. After this in July 2002, the Supreme Court took a decision to create a nationally empowered committee, called the Central Empowered Committee (CEC). Never before in the history of India had something like this been tried where five individuals were empowered by the apex court to judge and make recommendations on a series of different issues.

On 9 September 2002 the Supreme Court in a judgment, made the CEC a statutory authority under the Environment Protection Act. It gave it a tenure of five years. I quote some extracts from the court order:

‘A draft of the proposed notification under section 3[3] of the Environment Protection Act 1986 of constituting the Central Empowered Committee has been shown to the court. According to the draft, the committee is being constituted for a period of five years.’

‘They are all appointed in their personal capacity. A formal notification will be issued in a week. As and when this notification is issued, whatever functions and responsibilities had been given to the empowered committee will now be exercised by this statutory committee.’

The powers of the committee included dealing with issues connected to forests, wildlife and the environment and persons could seek relief directly from the committee on these issues. The committee also had the power to summon files, papers or even people and conduct formal hearings in order to fulfil its objectives. From July to November 2002 the committee worked hard on some critical issues recommending judgments and orders for the Supreme Court to rule on and it also entertained a series of fresh applications for hearing. The first results from the work of the committee came from the orders of the apex court.

 

 

On mining: The first landmark judgment was on Kudremukh and the ongoing iron ore mining in the national park. Though the mining leases had expired in 1999 and against the letter of the law, extensions were given each year for mining and even the Union cabinet had approved an extension for another 20 years. The CEC made its recommendations on the case and the apex court heard the various parties. On 30 October 2002, which will always be a red-letter day for the conservation community, the court delivered its judgment.

In a landmark judgment of 46 pages the Supreme Court of India endorsed the decision of the Forest Advisory Committee, a committee that is a statutory authority under the Forest Conservation Act, to wind down the Kudremukh Iron Ore Company mining within Kudremukh National Park in 2005. They endorsed the recommendations of the Central Empowered Committee, a statutory authority under the Environment Protection Act. These issues were of vital importance to our protected area system. Listed below are details of the case and extracts from the judgment.

 

 

Extracts from Civil Original Jurisdiction I.A.No.670 of 2001. In Writ Petition (C) No.202/1995 [K.M. Chinnappa (Applicant) in T.N. Godavarman Thirumulpad (Petitioner) Versus Union of India and Others (Respondents)]:

(1) ‘By destroying nature, environment, man is committing matricide, having in a way killed Mother Earth. Technological excellence, growth of industries, economical gains has led to depletion of natural resources irreversibly. Indifference to the grave consequences, lack of concern and foresight have contributed in large measures to the alarming position. In the case at hand, the alleged victim is the flora and fauna in and around Kudremukh National Park, a part of the Western Ghats. The forests in the area are among 18 internationally recognized "hotspots" for biodiversity conservation in the world.’

(2) ‘The seminal issue involved is whether the approach should be "dollar friendly" or "eco friendly".

‘Environment is a difficult word to define. Its normal meaning relates to the surroundings, but obviously that is a concept which is relatable to whatever object it is which is surrounded. Einstein had once observed, "The environment is everything that isn’t me." About one and half century ago, in 1854, as the famous story goes, the wise Indian Chief Seattle replied to the offer of the great White Chief in Washington to buy their land. The reply is profound. It is beautiful. It is timeless. It contains the wisdom of the ages. It is the first ever and the most understanding statement on environment. The whole of it is worth quoting as any extract from it is to destroy its beauty.

"How can you buy or sell the sky, the warmth of the land? The idea is strange to us. If we do not own the freshness of the air and the sparkle of the water, how can you buy them?

"Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man."

‘It would be hard to find such a down to earth description of nature. "Nature hates monopolies and knows no exception".’

(3) ‘The Stockholm Declaration of the United Nations on Human Environment, 1972, reads its Principle No.3, inter-alia, thus:

"Man has the fundamental right to freedom, equality, and adequate conditions of life. In an environment of equality that permits a life of dignity and well being and bears a solemn responsibility to protect and improve the environment for present and future generations."

‘It is necessary to avoid massive and irreversible harm to the earthly environment and strife for achieving present generation and the posterity a better life in an environment more in keeping with the needs and hopes. In this context immediately comes to mind the words of Pythagoras who said:

"For so long as man continues to be the ruthless destroyer of lower living beings, he will never know health or peace. For so long as men massacre animals, they will kill each other. Indeed, they who sow the seeds of murder and pain cannot reap joy and love".’

(4) ‘Article 48-A in Part IV (Directive Principles) of the Constitution of India, 1950 brought by the Constitution (42 Amendment) Act, 1976, enjoins that the "state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country." Article 47 further imposes the duty on the state to improve public health as its primary duty. Article 51-A(g) imposes "a fundamental duty" on every citizen of India to protect and improve the natural "environment" including forests, lakes, rivers and wildlife and to have compassion for living creatures.’

(5) ‘Industrialisation, urbanisation, explosion of population, over exploitation of resources, depletion of traditional sources of energy and raw materials, and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruction of multitude of animal and plant species for economic reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power of nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature. If man is able to transform deserts into oasis, he is also leaving behind deserts in the place of oasis. In the last century, a great German materialist philosopher warned mankind: "Let us not, however, flatter ourselves over much on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results we expected, but in the second and third places it has quite different, unforeseen effects which only too often cancel the first".’

(6) ‘To protect and improve the environment is a constitutional mandate. It is a commitment for a country wedded to the ideas of a welfare state. The world is under an impenetrable cloud. In view of the enormous challenges thrown by the Industrial Revolution the legislatures throughout the world are busy in an exercise to find the means to protect the world. Every individual in society has a duty to protect nature. People worship the objects of nature. The trees, water, land and animals had gained an important position in ancient times. As Manu VIII, page 282 says, different punishments were prescribed for causing injuries to plants. Kautilya went a step further and fixed punishment on the basis of importance of the part of the tree. (See Kautilya III, XIX, 197).’

(7) ‘The Academy Law Review at pages 137-138 says that a recent survey reveals that every day millions of gallons of trade wastes and effluents are discharged into the rivers, steams, lake and sea etc. Indiscriminate water pollution is a problem all over the world, but is now acute in densely populated industrial cities. Our country is no exception to this. Air pollution has further added to the intensity and extent of the problem. Every year millions of tons of gaseous and particulate pollutants are injected into the atmosphere, both through natural processes and as a direct result of human activity. Scientists have pointed out that earth’s atmosphere cannot absorb such unlimited amount of pollutant materials without undergoing changes which may be of adverse nature with respect to human welfare.

‘Man in order to survive in his planetary home will have to strike a harmonious balance with nature. There may be boundless progress scientifically which may ultimately lead to destruction of man’s valued position in life. The Constitution has laid the foundation of Articles 48-A and 51-A for a jurisprudence of environmental protection. Today, the state and citizen are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wildlife and to have compassion for living creatures.’

(8) ‘A learned jurist has said, the Rig Veda praises the beauty of the dawn (usha) and worships Nature in all its glory. And yet today a bath in the Yamuna and Ganga is a sin against bodily health, not a salvation for the soul – so polluted and noxious are these "Holy" waters now. "One hospital bed out of four in the world is occupied by a patient who is ill because of polluted water… Provision of a safe and convenient water supply is the most important activity that could be undertaken to improve the health of people living in rural areas of the developing world" (WHO). "Nature never did betray that heart that loves her." (Wordsworth). The anxiety to save the environment manifested in the Constitution (42 Amendment) Act, 1976 by the introduction of a specific provision for the first time to "protect and improve" the environment.’

(9) ‘The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The state as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.’

(10) ‘The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any use unless the courts find it necessary, in good faith, for public good and in public interest to encroach upon the said resources.’

(11) ‘Sustainable development is essentially a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which continued activity and further development depend. Therefore, while thinking of the developmental measures the needs of the present and the ability of the future to meet its own needs and requirements have to be kept in view. While thinking the present, the future should not be forgotten. We owe a duty to future generations and for a bright today, bleak tomorrow cannot be countenanced. We must learn from our experiences of the past to make both the present and the future brighter. We learn from our experiences, mistakes from the past, so that they can be rectified for a better present and the future. It cannot be lost sight of that while today is yesterday’s tomorrow, it is tomorrow’s yesterday.’

(12) ‘The greenery of India should not be allowed to be perished, to be replaced by deserts. Ethiopia which at a point of time was considered to be one of the greenest countries, is virtually a vast desert today.’

(13) ‘It is, therefore, necessary for the government to keep in view the international obligations while exercising discretionary powers under the Conservation Act unless there are compelling reasons to depart there from.’

(14) ‘The UN Conference on Human Environment held in Stockholm during June 1972 brought into focus several alarming situations and highlighted the immediate need to take steps to control menace of pollution to the Mother Earth, air and of space failing which, the conference cautioned mankind, it should be ready to face the disastrous consequences. The suggestions noted in this conference were reaffirmed in successive conferences followed by the Earth Summit held at Rio de Janeiro (Brazil) in 1992.’

(15) ‘Before we part with the case, we note with concern that the state and the Central government were not very consistent in their approach about the period for which the activities can be permitted. Reasons have been highlighted to justify the somersault. Whatever be the justification, it was but imperative that due application of mind should have been made before taking a particular stand and not to change colour like a chameleon, and that too not infrequently.’

This judgment was perfectly put and in a way spelt out the philosophy of the court and the laws of the land. It would close down a Rs 2000 crore mining operation by 2005 that had been ongoing for 22 years inside Kudremukh National Park. This judgment would create vital precedents for other national parks also. The apex court of the country was prepared to uphold the cause of our wilderness even though the Union cabinet had cleared the mining lease for another 20 years. This judgment will change the future of forests and wildlife especially in relation to their exploitation.

Then came a series of other orders based on the recommendations of the CEC.

 

 

On eviction of forest encroachers: The rich, the powerful, and the famous had encroached some of the finest forest land in the outcrops of the Western Ghats in the Chikmagalur district of Karnataka. Over the years, much of this land had been converted into coffee plantations. Then came along an honest forest officer who regardless of political pressures issued notices to the encroachers and finally this case travelled through 202 to the apex court and the CEC.

The court endorsed the recommendations of the CEC and not only asked for the removal of all the encroachments according to the forest boundaries as mapped by the Survey of India but also ordered:

‘The encroachers are liable to compensate for the losses caused due to the encroachments especially when the land encroached upon has been utilised for commercial purposes. We, however, take a lenient view and direct that if the encroachers voluntarily vacate the encroached land and hand over the same to the Chief Conservator of Forests within three months from today, i.e. on or before 31 January 2003, they will not be liable to pay any compensation but if they continue to remain in occupation then they will have to pay Rs 5 lakh per hectare per month to the state government. Money so recovered shall be kept in a separate account and shall be used exclusively for forest protection and rehabilitation of the encroached area with the concurrence of the Central Empowered Committee.

 

 

Action taken report shall be filed by the Chief Secretary Karnataka before the Central Empowered Committee every month till the encroachments are completely removed and all the compensation payable by the encroachers has been deposited. Copy of the action taken report be filed in this court. Liberty is given to the Central Empowered Committee to seek further directions.’

The Chief Secretary, Karnataka was personally made responsible for the removal of encroachments and the Director General of Police entrusted with providing police protection. This order provides a deterrent for anyone who considers encroaching a viable proposition. The next big judgment that is awaited from the Supreme Court would be about the encroachments by local people since nearly 14 lakh hectares of this country’s forest land, at a value of Rs 50,00,00 crore has been encroached. Everyone hopes that a balance between safeguarding forest India and the wellbeing of genuine local people will be found.

 

 

On commercial vandalism of the countryside: A report of a senior journalist in The Financial Express about the defacing of rocks in the Himalayas of Himachal Pradesh for commercial advertising triggered the apex court into rapid action. Called the ‘Coke-Pepsi case’, the court involved the CEC into assessing the damage done. It then penalised the business companies for this vandalism that included some of India’s leading companies. So far at least Rs 5 crore have been recovered in damages and the case goes on. It has taught many a lesson and has resulted in a cleaning up in many states of India since the defacing spread across all the states of India. All the companies that abused the environment were suddenly rushing around trying to wash out the evidence! Let’s hope for a while it teaches everyone the lesson they truly deserve.

On compensatory afforestation: Each year forest land is used by public and private sector organisations. It gets diverted for mining, irrigation projects, power projects and so on. A Forest Advisory Committee in the Ministry of Environment and Forests is entrusted with giving clearance for the larger chunks of land. The project proponent is asked to afforest degraded land, sometimes even four times the amount that has been diverted. Roughly, the Centre and the states spend Rs 1500 crore on this activity each year. For decades this entire process has been in a mess and little gets regreened. It is this process that occupies enormous amounts of time of the forest service. The CEC spent several weeks with the states and their senior-most forest officers discussing this issue threadbare and recommended to the apex court new and innovative ways to deal with afforestation. The Supreme Court endorsed these recommendations and directed that:

‘The Union of India shall within eight weeks from today frame comprehensive rules with regard to the constitution of a body and management of the compensatory afforestation funds in concurrence with the Central Empowered Committee. These rules shall be filed in this court within eight weeks from today. Necessary notification constituting this body will be issued simultaneously. Compensatory Afforestation Funds which have not been realised as well as the unspent funds already realised by the states shall be transferred to the said body within six months of its constitution by the respective states and user agencies.

 

 

In addition to the above, while according transfer under the Forest Conservation Act, 1980 for change in user agency for all non-forest purposes, the user agency shall also pay into the said fund the net value of the forest land diverted for non-forest purposes. The present value is to be recovered at the rate of Rs 5.80 lakh per hectare to Rs 9.20 lakh per hectare of forest land depending on the quantity and density of the land in question converted for non-forest use. This will be subject to upward revision by the Ministry of Environment and Forests in consultation with Central Empowered Committee as and when necessary.’

This order has much more detail to it. Everything that is to be done must be with the concurrence of the CEC. This central fund is also to receive all monies that might accrue from diversion of protected area land. The order states, ‘Such monies shall be used exclusively for undertaking protection and conservation activities in protected areas of the respective states/union territories.’

What is interesting about this order is that the definition of compensatory afforestation has changed since now both assisted natural regeneration and the protection of root stock is equally, if not more, important. The focus is on site-specific plans and protection of the forests. User agencies will also be involved in this activity and most vital of all, ‘Plantations must use local and indigenous species since exotics have long term negative impacts on the environment.’

The entire forest infrastructure was being reformed and restructured in one stroke. Not only would there be a body to manage funds at the federal level but also a value assigned to every bit of land diverted. This had never happened before in the history of India. This federal fund would deal with forests, wildlife and the environment. In fact, the first large deposit into this fund would be the sum of Rs 50 crore from the power corporation that was setting up electricity lines in Rajaji National Park. This order would also signal the end of the planting of exotic species like eucalyptus, casuarina, and the horrible prosopis julifora. It was a landmark order.

 

 

On sawmills and wood based industries: The Supreme Court in all its wisdom also accepted the CEC recommendations that the ban on sawmills and wood based industries in Nagaland should be extended by a further period of five years. It re-endorsed the fact that no state or union territory was permitted to run an unlicensed sawmill or any other wood related industry in India. All the chief secretary’s across India were to ensure strict compliance. There are to be no relaxation in the rules and this would be vital in the saving of forests across India. The CEC has the vital role to concur, oversee and guide all these directions.

On illegal mining in the Aravallis: On a CEC report about the mining of the Aravalli’s in Haryana, the apex court came out with an earth shattering order. It is this kind of order that will give breathing space to the most plundered hill ranges of Rajasthan and Haryana – it could even save what is left.

‘We prohibit and ban all mining activity in the entire Aravalli hills. The chief secretary, state of Haryana and chief secretary, state of Rajasthan are directed to ensure that no mining activity in the Aravalli hills is carried out, especially, in that part that has been regarded as forest area or protected under the Environment Protection Act.’ [The order has subsequently been revised. While the ban remains in force in Haryana, its scope in Rajasthan has been confined to national parks and sanctuaries.]

 

 

It is quite clear to me that in the last 6 to 7 years the Supreme Court of India has spread a blanket of protective orders over forest India in order to save it. This they did in the absence of political will and good governance. The early 1990s were a time when so many of our laws that govern forests were continuously violated. These violations triggered many more writs bringing in the apex court to provide rulings. And they did. I think that the most far-reaching orders that will forever be historic came in 2002 and I have tried to look at them in some detail. I believe this process will continue till the country develops the political will to govern properly. Legal action is vital at the moment if our rich and fragile natural treasures are to survive. Our institutions that govern are so eroded and paralysed that only a sea change in the political and economic climate of the country can put things right. Who knows what the future will hold?

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