If I say Writ Petition (Civil) 202 of 1995, the language might look very legal and perhaps alien to most. If the word Godavarman is added, it might get a bit more familiar for people who engage with the legal and institutional framework related to India’s forest. Substitute it with forest case or the green bench of the Supreme Court; it might resonate to several more. But the fact remains; in either of these articulations, this ongoing case in the Supreme Court (SC) of India has been central to the narrative of forest governance in India for the last two decades.
It began with the SC expanding the definition of forests to its dictionary meaning. This allowed for the central government’s regulatory framework under the Forest Conservation Act (FCA), 1980 to be applicable to any land, which satisfies this definition. From then on, the use or diversion of any area which attracted the above mentioned meaning attracted the provisions of the FCA, irrespective of its being officially recorded as forest within the government system.
Almost 20 years of this case’s existence has been controversial to say the least. With state government’s having claimed that it has been difficult for them to deem what is or is not forest. This case has also seen several other juggernauts. For instance, the judiciary and the executive have argued out matters of jurisdiction to decide who are the right people to review applications for forest diversion.
Institutional frameworks such as the Compensatory Afforestation Management and Planning Authority (CAMPA) and monitoring bodies like the Central Empowered Committee (CEC) are all a result of this case.
Whether it is the decision on the continuation of the operations of the Kudremukh Iron Ore Company Ltd (KIOCL) in Karnataka or the approvals related to on bauxite mining in the Niyamgiri Hills in Odisha; there lies an association with the SC’s Godavarman bench.
Directions on how licenses of wood based industries and saw mills needs to be regulated and endorsing the setting up of an environment regulator, have also been important contributions of the case, albeit debated upon on for their appropriateness.
This is not to say that all concerned have been convinced of the judiciary and its empowered committee’s role in forest governance.
Reviews of the case have ranged from extra-judicial activism, centralizing forest governance to the pioneering and proactive role in forest conservation.
However, in October this year, there has been turn of events charting out a new phase in the judicial history of this case. The present article tries to unravel some facts around this.
The court distributes responsibility
On 5th October, 2015 the Supreme Court’s Green Bench while hearing the matters under of Writ Petition (Civil) 202 of 1995, issued directions on expediting the disposal of several pending cases.
In this order the court transferred a large number of cases to the National Green Tribunal (NGT), State Level Committees for Wood-Based Industries, the Ministry of Environment, Forests and Climate Change (MoEFCC) as well as the National Board for Wildlife (NBWL) for further perusal. This was based on the note submitted before them by senior advocate Harish Salve, who is the amicus curiae (friend of the court) in the ongoing case.
Each of these institutions will be looking at different kinds of matters depending on their expertise. For instance, all matters related to the compliance of the orders of the SC were transferred to the National Green Tribunal (NGT). So, if there is a case, which had been filed challenging the illegal construction of project without prior approval, related to diversion of forests for non-forest use, it is likely to now rest with the NGT.
Similarly, the grant of an approval for forest diversion matters relating to licensing of wood based industries would go before a State Level Committee for Wood-Based Industries and all cases which have reference to National Parks/Wildlife sanctuaries would be reviewed by the National Board for Wildlife (NBWL) set up under the Wildlife Protection Act (WLPA).
The MoEFCC will now be considering all cases where a project has sought exemptions from the mandatory payment of the Net Present Value (NPV) payment for diversion of forest land. This was a process put in place by the SC’s judgment in 2005 and processes, which followed thereafter.
The SC’s Bench has also retained a set of matters, which will continue to be heard by them. The list of these, the order mentions, has been included in the note submitted to the SC by the amicus curiae. However, the order itself does not lay it out, hence the details will only emerge from the hearings before the SC bench.
Green Tribunal’s process initiated
Following the orders of the SC, the NGT has had two sittings of its Principal (Chairperson’s) Bench, on how these cases will be dealt with. The first was on 5th November 2015, when the order passed listed out a series of cases to be immediately heard by the NGT that were also as per the NGT’s registry.
Some of these include, the transfer of forest land for a mining lease by Jaypee Cement Ltd or construction of an indoor stadium in Siri Fort Complex, New Delhi and a long pending case related to the violation of forest land for the construction of a hotel & shopping complex as well bus stand complex in Reserve Forest Land Mcleodganj, Himachal Pradesh. The last in this list has been pending before the bench since 2007. The full list is available in Issue 86 of Forest Case Update, which can be accessed from www.forestcaseindia.org.
In the subsequent hearing on 3rd December 2015, the proceedings on specific matters including those related to Jaypee Associates were initiated before the Chairperson’s Bench. However, substantive deliberations will take place only in January 2016. One significant development was that Mr. A.D.N. Rao, Adv. who was appointed as amicus curiae on behalf of CEC would continue to be the amicus in the matters being heard before the NGT too. The hearings are now listed on 11th and 12th January 2016.
The other transfers
As discussed earlier, on 5th October 2015 SC also transferred some cases to the NBWL, to State Level Standing Committees on wood based industries and to the MoEFCC for decision on NPV exemptions.
The last available public information on a meeting of the NBWL’s standing committee is of its 36th meeting held on 4th November 2015. The issue of the SC’s directions has not been discussed in the meeting specifically as per the minutes available on the ministry’s website. But these cases will need some careful tracking and follow up by all interested and concerned.
The other two aspects would also need to be followed through carefully, especially the issue of exemptions from Net Present Value (NPV) payments compensating for diversion of forest land for non-forest use. In the past the logic of exemption has included a project being that of a public sector or of public utility. The truth behind these contentions, now need to be traced through the corridors and files of the environment ministry.
For now we know that a new phase of the forest case has begun, to be traced through various avenues and decision-making processes. With the NGT having the jurisdiction of hearing appeals and applications related to the Forest (Conservation) Act, 1980, the new action has begun to shift there with some significant orders already having emerged from this institution.
The role of the both the central executive and the judiciary continue to influence forest governance in India, as has been the case for the last several years. Desirable or not, this space of decision-making would need a careful scrutiny for scope and impact.