Sanjay Upadhyay Advocate Supreme Court of India Managing Partner Enviro Legal Defence Firm August 2013

2  Trends in Forest Cases-From Timber Use  Conservation  Mining & Mining leases (a privilege & not a right)  Property rights (forest-dwellers)  Procedure conflicts ◦ Inquiry ◦ Proforma  Language of notification  Control over forest – Centre-state relations  Conflicts of jurisdiction within depts. of state.  Use of forest for non-forest purpose  Forest rights of forest dwellers  Application of FCA ◦ Provisions of FCA not only applicable on fresh leases of forest land but also on those which are being renewed. ◦ Renewal not a matter of Right. (Ambica Quarry Works)

 WHY DID THE BRITISH DID NOT DEFINE FORESTS?  THANK GOD FOREST HAS BEEN DEFINED  THE BIGGEST GAINERS? ◦ Anybody’s Guess!!!

 The Godavarman case represents the single biggest judicial intervention in administration of forest in the country and perhaps in the world!.  Judicial activism has been at its zenith -since 1995, a few thousand Interlocutory Applications have been filed representing different interest groups ◦ from different States, ◦ different sectors, ◦ non government organizations, ◦ industrial sectors, ◦ traders, ◦ political interest, ◦ social activists, ◦ environmentalists, ◦ forest dwellers………the list is endless.

 substantive and definitional issues such as definition of forest, dereservation, wood based industry, working plans, “encroachment”.  ecological aspects of forests such as conservation of forests, ecologically sensitive areas,  strategies to deal with diseases on forests (sal borer),  removal of forest produce,  restrictions on clear felling and green felling.  economic role of forests such as forest land valuation including compensatory afforestation and net present value  staffing and budgetary issues such as financial outlays for forests and wildlife,  salaries of staff  the role and constitution of Forest Advisory Committee.

 The SC has also ◦ dealt with commercial and livelihood aspects of forestry in relation to mining, sawmills, plantations and wood based industries. ◦ The court has adopted numerous legal and judicial strategies through inquistionary, advisory, judicial and statutory Committees to assist itself in arriving at fair and just decisions. ◦ It has adopted strategies to implement its own orders through new and innovative methods by imposing pecuniary restrictions to use of contempt proceedings. ◦ The case has also resulted in creation of new structures ( unheard in any part of the world) -the Central Empowered Committee (CEC) which has been created under the powers of the SC. ◦ Last but not the least, the role of amicus curiae is perhaps the most evolved in this case.  Is this is a good sign?

 Running of saw Mills in close proximity of any forest area banned.  All Wood based Industries to be relocated in industrial zones earmarked by the Government  Fresh Licenses for Saw mills to be awarded after proper consultation with CEC  All mining in any forest area without prior approval of the Union Government to be banned.  Officers allowing illegal mining held in contempt and vehicle and equipment of miners seized

 Complete ban on movement of timber within and outside the North Eastern States  Prior Certification by the HPC for Commercial use of any Timber  State Governments of North East directed to come up with guidelines for transit of timber in consultation with MoEF  All other government departments like railways directed to follow these guidelines  The Court has prohibited collection of dry, dead and fallen wood from the PA’s.

 Clearance under FCA made mandatory for new as well as leases to be renewed.  Non implementation of the Court order resulted in blanket ban on mining (e.g. Aravallis).  The Court criticized inconsistent approach of the Central and State Government on the issue of grant of short term permits for mining.  Court took strong note of non implementation of its directions and initiated contempt proceedings against responsible officials.  Orissa Mining Case- new avenues created for cultural and religious rights to be recognised

 To oversee implementation of Courts Order within the Country.  Also assigned powers for dispute resolution and redressal of grievance caused due to implementation of courts order for State and Individuals  This committee comprised of nominees from the Union Ministry, NGO’s and a representative of the Amicus Curiae  The Committee has since been notified under the Environment Protection Act, then withdrawn and now under the SC order.  De Facto the Committee has been placed above all High Courts of the Country.  Two thoughts: While some laud the great tasks done… Is this good institutionally for FD and if not what are we doing about it?

 Monitoring Committee to oversee reafforestation, mining activities and other related matters in Doon Valley Mining Matter  High Powered Committee for the North Eastern region.  R. B. Lal Committee to present a report on the Sal Borer issue  R.M.N. Sahay Committee on encroachment in Thatkola resreve forest  Shekhar Singh Committee on Encroachment in Andaman Nicobar Islands

 All encroachment on any forest to be identified as pre 1980 and post 1980  All post 1980 encroachment to be phased out in a time bound manner  State Government directed to come with guidelines for removal of encroachment.  In this Process CEC to be consulted  But what is “encroachment”. Who decides? What is the legal definition? Is it too discretionary? Private forest? 1952?

 Constitution of CAMPA  Supply of timber and forest produce to industries including government undertakings at full market rates  State of Assam revised the rates of the royalty on timber in Aug 1998 in pursuance to the Court order.  Creating a revolving fund from the amount realized out of the penalties levied on the wood based industries and the proceeds from the sale of seized timber as well as timber products  The Court had asked the State governments to frame rules with respect to felling of tress from non-forest lands, with the concurrence of the MOEF ◦ The Assam (Control of Felling and removal of tress from non-forest lands) Rules, 2002, formulated

 Corporate Houses like pepsi and coke imposed with cost for causing ecological degradation: Himanchal Rock Painting Case  Reliance Industries issued notice for causing damage to a National Park in M.P.  Emphasis on sustainable use of resource for development and  precautionary principle

 Two cases which have had great influence are the CEL WWF-India Case and the Navin Raheja Case.  The CEL Case was filed to understand the State position on settlement of rights in national parks and sanctuaries  It was in this case that the Apex Court made the clearance of National Board of Wildlife mandatory before according clearance for diversion of a forestland in any of the PA’s for non-forestry purpose

 Lafarge case – Implementing Policy; Setting up Institution; Joint Process in case of dispute  Ajay Dubey – Tiger Tourism  Orissa Mining Judgment- cultural and religious rights to be inquired under FRA

 Is this just and environment versus development case? No. It raises larger questions of due process and the mess in which are environmental laws are!  Should we have such an unclear system where it should take anyone to sort out a dispute in 14 years?

 Regulator for FP, 88 But why only for FP and why not for Env Policy too?  Regional offices?  Regional CECs?  FC before EC?  Corporate Env Policy?  Completion of “WHAT IS FOREST”??  comprehensive policy for inspection, verification and monitoring and the overall procedure relating to the grant of forest clearances

 An over active judiciary is a sign of a weak Executive!

THANK YOU