SC order to go by 1996 definition of forests a good move, but not ambitious enough: Experts

While Supreme Court’s order to return to dictionary definition of forest is a good news for conservation, experts said that it leaves much to desire

In a win for environmentalists and forest communities, the Supreme Court, on February 19, directed states and Union Territories to adhere to the 1996 definition of ‘forest’—which referred to the dictionary definition of forest—and put a stay on the 2023 amendment to the Forest Conservation Act (FCA).

The 2023 amendments to the FCA, 1980, were challenged in petitions filed by a group of retired Indian forest officers and former bureaucrats, and the NGO Vanashakti. They argued that the 2023 amendment had “substantially diluted” the definition of forest, narrowed the Act’s scope and had allegedly resulted in 1.97 lakh square km of land getting excluded from forest area. Many experts and environmentalists believe that 2023 amendments would open up huge chunks of forests for commercial interests. This would not only endanger wildlife and disrupt forest ecosystems, but give a dangerous green signal to proposals to deforest without requiring clearance from the Union government.

So, earlier this week, the Apex court issued an interim order to go back to its 1996 ruling to identify forests in the country. However, experts said that going back to generic definition of forests is not an ambitious move. 

A lost opportunity?

Experts have said that when the dictionary meaning of forests is used, it leaves a lot of room for faulty interpretation. “There should be judicial discretion for the matter and certain broad parameters should be defined looking at the ecological system in the country to understand the meaning of ‘deemed forest’”, said Raj Panjwani, senior advocate, NGT and Supreme Court, and founder President of the NGT Bar Association.

Panjwani gave the example of The Wildlife Protection Act, 1972 where Section 18 lays down a guideline that enables states to notify a sanctuary. 

“There’s no such framework to ascertain forest lands even in the dictionary meaning of the word. The “broad and all-compassing” dictionary meaning could lead to missing out on forest lands which, for example, do not have thick crown cover,” Panjwani added. 

“When we strike down a law, we must come up with more practical and ambitious orders rather than reverting to something as old as a 1996 judgement. Ecological science and technology has evolved a lot during this period to identify deemed forests. Still, the interim order is a positive step in the direction to conserve forests and a much-needed intervention in the 2023 amendments to the Act,” said Panjwani. 

A recap of the 1996 order

Under the Indian Forest Act 1927, states were given the power to ‘de-reserve’ any forest land. When the 42nd amendment of the Constitution came into force in 1976, it moved the subject matter of forests from State list to Concurrent list, putting it under the purview of both—the Centre and States. This was followed by the Forest Conservation Act 1980, which took away the State’s power to de-reserve forests. It said that to carry out any non-forestry on forest land, permission from the Centre is required.

However, even then, no definition of forests existed and substantial areas of forest land were being diverted to non-forestry use. Then came the landmark 1996 Godavarman case judgement, which stated that the definition of forest is to be understood in the dictionary sense of the word. Any such land, regardless of its ownership, would be considered as a forest. 

According to the 1996 verdict, all states and UTs were required to form an expert committee in order to identify deemed forests in accordance with the Court’s decision at the time. 

The term ‘deemed forest’ has never been clearly defined and there hasn’t been any directive by the Centre in that regard. However, some states have come up with their own criteria. 

What’s happening currently? 

Despite the court’s order in 1996, very few states actually carried out the exercise of identifying such land areas that could be deemed as forests. So most of those lands never made it into any kind of government records. 

Then, the 2023 amendment to the FCA restricted the areas where FCA would apply. It said that it would apply to only those forests that have been declared and notified as a forest under Indian Forest Act and those that have been recorded on government records as forest on or after 1980. The amendment asked the states and UTs to identify such lands within a period of one year.

This means that those parcels of land that were never identified as forests from 1996 would still be left out from the classification, leaving out a major chunk of forest land in the country. 

This is where the Apex court has asked the special committees to go back to the 1996 definition of forests and to identify all areas of land which are not only in government records but are also forests by dictionary definition of the word, regardless of the ownership. 

“All states and UTs must comply with the directions by forwarding the reports of the expert committees by March 31, 2024. These records shall be maintained by the  Ministry of Forest, Environment and Climate Change (MoEFF) and shall be duly digitised and made available on the official website by April 15, 2024,” the bench said. The court has also ruled that no zoos or safaris can be set up in such areas unless the court’s approval has been secured.

What happens next?

While the judgement was welcomed by the environmentalists, it is just an interim order. The court matter has been adjourned till July. However, challenging the 2023 Amendments may set a hopeful precedent for other cases in climate litigation. As the challenge to the Wetlands Rules 2017 is still pending in the Supreme Court, here’s to hoping that the precedent this case sets will help at least in challenging such laws. 

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Vandita Sariya

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