The Blot of Inadequacy of Safeguards looms large in Indian Environmental Jurisprudence in 2024

The Recent Godavarman Judgement

The Supreme Court observed in March that a group of politicians, forest authorities, and local contractors were found to have colluded to unlawfully cut 6,000 trees in Uttarakhand's Jim Corbett National Park. This situation highlights that even though the state prioritises conservation goals with laws like the Forest (Conservation) Act, 1980 and the Wildlife Protection Act, 1972, state officials and other actors remain interested in unlawfully extracting benefits from the forest – at the cost of the environment.

It is important to note that the legal instrument of continuing mandamus has been used by the SC to deliver this judgement. By using continuing mandamus, apart from taking cognizance of the situation, the Supreme Court can issue interim orders, and monitor the situation. The crux of this lies in the fact that the legal instrument of continuing mandamus gives SC these powers over the concerned unconstitutional state of affairs at-large, and not over a specific instance.

Importantly, the Supreme Court disapproved of the idea that ecotourism is the answer to both money production and conservation, favouring ecocentrism above anthropocentrism. The court ordered that tiger safaris be banned in the central areas and formed a committee to determine if it would be possible to allow these kinds of operations in the outlying areas of Jim Corbett and the entire country. Moreover, the court also rejected the National Tiger Conservation Authority's 2019 Guidelines, which permitted tiger safaris inside national parks that were similar to zoo visits. These guidelines stressed the significance of procuring tigers from the same terrain where the safari is performed. The court ordered that tiger safaris be banned in the central areas and formed a committee to determine if it would be possible to allow these kinds of operations in the outlying areas of Jim Corbett and the entire country.

To reduce environmental harm, the Court used the precautionary principle to support its prohibition on safaris in core regions. This concept, as described by British environmentalist Norman Myers, states that lack of total scientific knowledge should not hinder the application of cost-effective actions to avert environmental deterioration when faced with concerns of irreparable harm. It is important to note that - with the International Union for Conservation of Nature (IUCN) claiming that 12% of India’s IUCN Red List animals are endangered, and the Centre for Science and Environment finding that 90% of India’s area under the biodiversity hotspot being lost - it becomes important that the precautionary principle be applied to all endangered species, and not just to tigers. Though it is admirable that the Court decided to investigate the environmental harm in Jim Corbett and demand compensation from accountable parties, there are issues with the lack of a clear framework for evaluation. Furthermore, recovering the costs of restoration does not always mean recovering the ecosystem's lost ecological services. But even if it were possible, it shall be remembered that even that does not lie at the heart of the issue.

The goal of the Indian value system prior to the T.N. Godavarman case (1996) was to replace destroyed natural forests with plantations that would compensate. In order to address the insufficiency of the levy in properly paying for environmental losses, net present value (NPV) was established in 2002 as an extra payment requirement. As a result, the compensatory afforestation levy and NPV evolved as legally backed methods for valuing forest land. Though it is important to use a framework of calculating compensation that does not provide a diminished image of monetary loss suffered, it must be remembered that the adequacy of monetary loss rests on the problematic assumption that all forms of harm could be given the shape of a certain degree of monetary loss. Therefore, the essential question from the lens of environmental protection is whether we have sufficient safeguards in place to prevent – in the first place – environmental harm, unless the infliction of such environmental harm becomes necessary or highly desirable.

This gains prominence in light of the fact that the Forest (Conservation) Amendment Act, 2023 has taken steps in the backward direction.

Analysis of Forest (Conservation) Amendment Act, 2023

Various stakeholders have expressed both appreciation and worry over the proposed major changes to India's forest governance structure in the Forest (Conservation) Amendment Act, 2023. The possible effects of the amendment on forest lands in border regions that are environmentally sensitive have been brought up as one of the main arguments against it. The Act may pave the way for highway construction in the biodiverse areas of India's border states by authorising the diversion of forest land for linear projects related to "national security" and "defence" within a 100-kilometre radius along border zones.

Furthermore, opponents contend that the modification compromises the Forest (Conservation) Act, 1980's long-standing foundation for forest administration in India. The Supreme Court's historic ruling in T.N. serves as the foundation for this argument. Godavarman v. Union of India (1996) expanded the meaning of "forest" to encompass any place that meets the dictionary definition of forest or is listed as such in official documents.

By reducing the protection afforded to forest land under the 1980 Act, the Act aims to undermine the rulings made in the Godavarman (1996) case. The Indian Forest Act, 1927's proclaimed and registered forests as well as any land the government records as forest after October 25, 1980, are the only areas covered by the Act now that Section 1A(1) has been included. The Act's conservation goals are further undermined by the Act's overbroad exclusions, which include a complete exemption from protection for all tree plantations and afforested regions, as well as forest acreage next to public highways or rail lines.

The Act also includes measures that facilitate the government's acquisition and transfer of forest land to contractors. Sections such as 1A(2)(c)(ii), 1A(3), and 1A(2)(c)(iii) allow unrestricted exemption for defence and public utility projects in Left-Wing Extremism-affected areas, and provide exemptions for forest land used for infrastructure related to security. These sections also rely on compensatory afforestation, which has a poor track record. Furthermore, Section 2(2), which lacks enough monitoring or precise definitions, authorises actions such as surveying and exploring forest property.

Some important questions are brought up by the way the Act treats forest land in relation to its scope and exempt categories. The Act might jeopardise biodiversity preservation and forest conservation efforts by omitting some forest areas from the Act's protection, which would go against the Supreme Court's ruling in the Godavarman case. In the North-Eastern states, which are hotspots for biodiversity, the exemptions close to borders may result in extensive ecological harm.

Furthermore, in the absence of sufficient checks, the broad exemptions for security-related projects can worsen deforestation and fail to address the root reasons of project delays. Concerns are also raised by the Act's provisions addressing how to strike a balance between economic growth and forest conservation, especially in light of the possibility that conservation goals might be compromised by operations like zoos located inside forest areas.

Conclusion

The recent Supreme Court ruling on deforestation in Jim Corbett National Park underscores the tension between economic interests and environmental conservation. While laws prioritise conservation, economic gains often take precedence. The Court's stance against ecotourism in core regions and use of the precautionary principle highlight the need for a more environmentally conscious approach. Challenges remain regarding evaluation frameworks, adequacy of compensation, and most importantly – adequacy of safeguards in place to check that forest land is being used for purposes that harm ecology only when the same is highly desirable.

Further, the judgement comes as a boon in the light of the Act, which is ready to take several steps backwards. But, the essential question that remains to be answered is: what does the choice of permitting usage of forest land for commercial purposes at the cost of ecology – without adequate safeguards – entail?