The long stand-off between the Supreme Court of India and the Ministry of Environment and Forests (MoEF) on the reconstitution of the Forest Advisory Committee seems to have made spiral headway. In an order passed on 2 May 2008 The SC has listed the names of three non-official members mutually agreed by both the court and the MoEF have been named, and their future tasks laid out.
MoEF's Forest Advisory Committee (FAC) has a critical role to play in environmental decision making of development in industrial projects. Whenever a project involves the diversion of forest land for non forest use, it requires forest clearance as per the stipulations prescribed under the Forest Conservation Act, 1980. A proposal for such clearance is received by the FAC through the State Forest Department following the recommendations by the local Divisional Forest Officer (DFO). The FAC has the responsibility to screen these applications, seek additional information and subsequently recommend or reject the grant of clearance.
In the last quarter of 2006 began an interesting debate as part of the ongoing T N Godavaraman case (popularly known as the forest case) being heard in the Supreme Court. The term of the then FAC had just ended, and the committee had to be reconstituted. A judicial intervention in this bureaucratic procedure was not well received within the Ministry's corridors and the Chief Justice's courtroom saw a range of heated debates, insinuations and critical discussions. The names suggested by the court and its monitoring body the Central Empowered Committee (CEC) were not acceptable to the MoEF and till April 2007 there was a stalemate on whose expert could be considered one eligible to be on the FAC (See: Whose expert is an expert?).
On 24 April 2007, the issue moved ahead, with an order by the Godavarman bench. While the justices temporarily agreed to the names suggested by the MoEF, it was directed that all decisions of the new FAC would be reviewed by the CEC. The order read, "We make it clear that pending the decision of the larger question, all clearances [by the FAC] of fresh cases shall be subject to approval by this Court. Before giving approval, we would like to have responses from CEC in respect of each clearance. In order to avoid delay, we direct the concerned Ministry to give a copy of [each] clearance to CEC so that CEC would give its response expeditiously. We will examine each clearance and decide whether to grant or not to grant the approval thereto. Once the approval is granted by this Court, the matter may be placed before the Central Government for disposal in accordance with law."
This meant that all projects requiring forest clearance would now have to go through an additional step before they received their final clearance.
First the FAC would need to give its nod, and this would then need to be agreed to by the CEC and the Supreme Court.
During the last year the CEC has put together 14 responses, covering several dozen projects. While some projects were given a green signal, others were shown a red one. One of the most controversial projects which have yet not got forest clearance is that related to the Steel Plant of the South Korean multinational, POSCO. The CEC has given a strong report on the project asking the company to carry out a comprehensive assessment of the likely impacts of the project, including the mining component. POSCO has been seeking separate environment and forest clearances for different components of its project (steel plant, port and mining) although these are essentially part of one large venture (See: here).
Another instance when the CEC had not agreed to the FAC's recommendations was with the clearance was the Human River project in Maharashtra. The CEC has held that since the construction involves a felling of a large number of trees it will have serious environmental repercussions. The clearance was withheld temporarily.
The Supreme Court's claim to oversight authority and judgment in a process otherwise thought to be within the jurisdiction of the MoEF has raised a great debate. The court's intervention in the procedure has been seriously questioned in corridor discussions, meetings and public debates. But what has also been remarked alongside is that this judicial intervention was brought on by the MoEF not doing its job right - its procedure had become more focused on providing clearances than judging the projects' effects. High impact projects which would lead to a loss of good and thriving forests were granted clearances. Since 1980, the ministry has allowed the diversion of 1,140,176 hectare of forest land for non-forest use under the FCA. Clearances for 3, 11,220 hectare - a quarter of all clearances since 1980 - have been granted after 2003. (See: here).
This turf battle took another interesting turn earlier this year. The term of the CEC was renewed in December 2007 and subsequently the composition of its committee was revised as per an order dated 21 February 2008. Among other things, as part of this reconstitution the Director General (Forests), MoEF has also been made a member of the CEC.
This was a significant move; the DG Forests is a part of the FAC as well, and has a critical part to play in granting or rejecting forest clearances as part of that body. With the same official now sitting on the CEC as well, he would essentially be reviewing his own decision, made earlier with his FAC hat on. And it seemed that the appellate role that the CEC had over the decisions of the FAC would clearly be diluted.
In a related development, on 02 May the MoEF, CEC and the Godavarman bench agreed on three names - Madhav Gadgil, Ulhas Karanth and Mahesh Rangarajan, three highly reputed individuals in the field of conservation - to become the new non-official members of the FAC. It appeared that this would be the end of the court's highly influential role in forest clearances. With the composition of the FAC no longer in debate, it could be argued that there was no further need for the CEC to look into the decisions of the FAC. If so, the MoEF would once again have a free hand to decide on diversions of forest land.
But, the court's order in this regard has left the door open, for the moment. It reads, "pending the decision of the larger question, all clearances by the FAC of fresh cases shall be subject to approval by this court."
With decisions about large industrial projects pending or slated to come up before the FAC and then the Court and finally back to the MoEF, the new combine of energies and dynamics is likely to throw up more fascinating manoeuvres ahead. The most important challenge, which still remains, is to rescue forest legislation from its current degraded state, functioning only as a 'clearance' regime.
