The tryst between Forest and Constitution

 

“We all share one planet and are one humanity, there is no escaping this reality.”

-WangariMaathai

Many great forests had become footprint on the sands of times by the hands of humans. There is an urgent need to save the forest. To feel the urgency you need not go and see the live destruction of the forest. Just look around, maybe the thing on which you are sitting right now is made from forest wood. The laws related to the conservation of forests are not adequate to reach its objective.

If we go to the roots of legislations and policies regarding forest conservation in India, we can find laws back from the colonial period (i.e., Indian Forest Act, 1865, Forest Policy, 1894 and Indian Forest Act, 1927). Though, the intention of the lawmaker was for the betterment of the forest. But, in reality, there was rampant deforestation by the hands of Britishers for their selfish needs (e.g. wars, building Ships and railway). This made the Britishers the major reason for this sorry condition of our forest, sadly an independent India did little to stop the lush green forest areas from turning into a stretch of barren lands and cement jungles.

After independence, the Indian government came up with many new forest laws (i.e., Indian Forest Policy of Independent India, 1952, National Commission on Agriculture, Forest (Conservation) Act, 1980, National Forest Policy, 1988, Forest Right Act, 2006, National Forest Policy, 2018). But the effort for the implementation has not been as novel as the intention. Further, India amended (42^nd Constitutional Amendment Act, 1976) its constitution to comply with the principles laid down in the Stockholm Declarations (also known as Magna Carta of environmental law). This made India one of the first countries to implement provisions regarding the improvement of the environment in its constitution. Article 48A added “forest” as Entry 17A in the Concurrent List. In T.N. GodavarmanThirumulpad v. Union of India[1] said defining forest according to the Forest Conservation, 1980 would hamper the principle of sustainable development. Therefore, the Supreme Court used the dictionary meaning, which has a broader definition of “forest” and many forest trees were protected. Even with so many safeguards, the central and state government could not save the forests from the wrath of uncontrolled industrialization and illegal encroachment.

Constitutional Aspect

The 42^nd constitutional amendment gave birth to Article 48A and 51A (g) into the world of the Indian Constitution. This created a constitutional duty on both state [Article 48A] and citizen [Article 51A (g)] to protect and improve the natural resources and environment (i.e., forest, water, air, soil, etc.) of this country. Since Article 48A is within the ambit of the Directive Principle of State Policy, it is not enforceable in the court of law.[2] So, the court invokes Article 21 into Article 48A to nudge the state to implement environmental law as a fundamental right (i.e., the right to live in a clean environment). Many times, the apex court used article 21 like the gateway to enforcing environmental rights as an explicit right to a healthy environment. In Subash Kumar v. State of Bihar,[3] the Supreme Court directed to read Article 48A, 51A (g), 14 and 21 altogether.

In the landmark judgment of M.C. Mehta v. Kamal Nath,[4] the Supreme Court discussed the Public Trust Doctrine. This doctrine is a common law principle is based on principles of equity. Thus, by using this doctrine the Supreme Court brought justice to the whole society. The principle behind this doctrine is; society at large has a right to be equally benefitted from the forest lands and other natural resources. And the state, like a trustee, has a duty to protect every citizen’s right over. So, whenever, the state is not diligently doing its duty as a trustee, a public-spirited person or any social action group can file a writ of mandamus under Article 32[5] or 226[6] as public interest litigation. Thus, the Indian government held the forest lands like a trustee, and without prior approval, no private body can use the forest. If such restriction had not been there, then it would have deprived the whole public of many invaluable resources. But the Indian government has failed to protect the environment from the hands of Industries and encroachers.

Industrialization

The concept of public trust doctrine and trusteeship were reiterated while deciding an allotment of mining lease, in the case of Natural Resources Allocation. The court observed that this act of alienating natural resources for private exploitation was held to be arbitrary, hence, violating Article 14. It also defied Article 39(b) in this case, because this distribution of natural resources was not in the best sub serve of the common good. In consonance with the public trust doctrine, the Indian judiciary had delivered many noble judgments for the sustainable development of our environment.

With an objective of sustainable development of forests and other natural resources, the Supreme Court came up with “precautionary principle” and “polluter pays” in the case of Vellore Citizen’ Welfare Forum v. Union of India.[7]

This principle strengthens the stance of the judiciary against the industries that are engaged in the degradation of forest lands and other natural resources. This principle states:-

i.  The state government and the statutory bodies have to anticipate and prevent the destruction of the environment,

ii.    If there are “threats of serious and irreversible damage” to the environment, then the state government should not make the excuse of “lack of scientific certainty” to delay the prevention process of environmental damage, and

iii.  The industrialist has the duty to show that its action is not a threat to the environment.

Similarly, the polluter pays principle can be used to ensure that the industries responsible for the destruction of the forest shall be the one to restore it.[8] With these two principles, we can enhance the process of sustainable development of our forests from the treats of industrialization.

Unfortunately, even after developing environmental jurisprudence and creating green courts, the Indian forests have continued to pay a large price for industrialization. Specifically, mining and logger industries destroyed millions of forest trees. Such industries have to follow the Forest (Conversation) Act, 1980 to rehabilitate and afforest the used forest land.[9]Further, the compensatory afforestation of the damaged forest is not very effective, because the lost original forest cannot be replaced by an artificial forest.[10]As regards the degradation of forest land by the industrialization, many officials and experts have alleged the data showed by the government are just the tip of the iceberg.[11] In addition to this, there is another allegation that only 30% of data on compensatory afforestation is correct.

Urban Encroachment

In 2019, AkashVashishtha, an environmental lawyer, filed an RTI to know the forest area of India. When the government showed the figures, it was quite shocking. Only 21.54% of land is covered under forest area out of which 2% (13,000 sq. km) of the forest land has encroached. The encroachment may or may not be permanent, but once the forest land gets encroached it takes many years for a tree to grow at that place.

According to a UN report, by 2050, 416 million people will move to cities in India.[12] Most of the time migration is a compulsion, not an option to the most vulnerable social group to move from rural to urban in search of livelihood. Though the urbanization provides employment, opportunity, education, health care and business, however, it takes a toll on the environment. Almost all cities have a neighbouring eco-sensitive zone (i.e. Turahalli of Bengaluru, Mangarbani of New Delhi, Aarey of Mumbai,Manas Reserve Forest and Kaziranga Wildlife Sanctuaryof Guwahati). So, if there is an influx of people into the cities, it would increase pressure on the city’s settlement area. The uncontrolled increase in the urban population has magnified the demand of the forest land. Consequently, the forest becomes the ultimate supply for the unlimited demand for migrants.

Recently, while deciding a dispute regarding cutting a mango tree. The High Court of Bombay Bench at Goa, in VithalKamatSambari v. State of Goa, commented:

“A seed or a sapling believes it owns the earth, so it anchors itself with roots deep into the ground… man almost an alien to planet earth has invaded it, colonized it. As every colonizer does, he pounds, plunders and pillages it. So, man makes laws and the laws are human centric…”

While on the positive end there are also people who consider trees as their god and protecting trees is their religion.

The Sacred Forests and Their Protectors

New Delhi, home to 29 million, is the world’s 2^nd largest city in terms of population. Beside this Mega City lies MangarBani forest, which is a sacred forest to the local people. These people acted as an environmentalist to protect this forest. But time and again the forest got encroached. Although, the Supreme Court or NGT imposing penalty on these offenders. But these orders are not doing justice to the Forest, because there are numerous cases of re-encroachments by the same offender.[13]

Similarly to MangarBani, there are many such cases where the local people have acted as a protector and manager of the forest. These people are diligently doing their constitutional duty under Article 51A (g). Article 51A (g) focuses on the duty of the citizens to protect and improve the quality of the forest and other elements of nature. Any citizen who is filing a suit for protecting the forest is also doing its constitutional duty under this article. But the ratio of citizens who are doing the duty as a protector of nature is very low.  Moreover, the slow judicial process and lackadaisical work ethic of the forest department hijack the whole theory of conservation of forest. The forest department is reeling under a shortage of employees and this makes the forest products the easiest things to steal. It is very disheartening to see the government has left unguarded the most valuable thing of mankind. So, the legislature needs to revamp the obsolete forest laws and bring some stringent changes to prevent the degradation of forest lands.

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[1]T.N. GodavarmanThirumulpad v. Union of India, AIR 2012 SC 1254.

[2]7 DDBasu, Commentary on the Constitution of India, in Part IV Directive Principles of State Policy:Article 48A 4 (9^th ed. 2014).

[3]Subash Kumar v. State of Bihar,AIR 1991 SC 420.

[4]M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

[5]Id.

[6]Natureal Lover Movement v. State of Kerala &Ors, 2000, Ker HC 1784.

[7]Vellore Citizen’ Welfare Forum v. Union of India, AIR 1996 SC 2715.

[8]DD Basu, supra note, at 10.

[9]Mayank Aggarwal, Private sector gets go ahead for assisting rehabilitation of degraded forests, Mongabay(July 23, 2019). https://india.mongabay.com/2019/07/private-sector-gets-go-ahead-for-assisting-rehabilitation-of-degraded-forests/.

[10]Jayashree Nandi, Compensatory afforestation process overhauled, Hindustan Times (Jan. 3, 2020), https://www.hindustantimes.com/india-news/compensatory-afforestation-process-may-be-overhauled/story-0BPfVOz9RIe9XqBiJDh3iI.html.

[11]The Quint, Large Forest Cover lost to 23,716 Industrial Projects in India, (June 3, 2016), https://www.thequint.com/news/environment/large-forest-cover-lost-to-23716-industrial-projects-in-india.

[12] United Nations, 2018 Revision of World Urbanization Prospects, (May 16, 2018),https://www.un.org/development/desa/publications/2018-revision-of-world-urbanization-prospects.html.

[13]Shilpy Arora, Fresh Encroachment in MangarBani, The Times of India, (Mar. 27, 2018), https://timesofindia.indiatimes.com/city/gurgaon/fresh-encroachment-in-mangar-bani/articleshow/63472859.cms. 

(Sasthibrata Panda is a law student from Damodaram Sanjivayya National Law University, Visakhapatnam)