Legal

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This Blog is written by Vidur Thanawala from Bennett University, Greater Noida. Edited by O.S.S. Sarada Rasagnya & Amrith R.

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INTRODUCTION

The unpredictable felling of trees has brought about a decrease of 3.16% in the worldwide woods spread from 1990 to 2015. In spite of the fact that India has seen an addition in the aggregate woodland front of carbon – dioxide 1%, still, there are sure locals in the nation that have looked for a reduction in the forestation spread. The primary reasons credited to the decrease in the woodland spread are moving development, rotational felling, other biotic weights, pre-occupation of woodland lands for formative exercises, and so forth. Constant illegal cutting of trees has affected the microclimatic conditions, hydrological cycle, soil quality, biodiversity, and so on of the nation, in this way the nation increasingly defenseless for any uneventful occurring. Maintainable woodland the executives rehearses, choices for moving development, the advancement of manor outside the timberland and utilization of confirmed backwoods items, and so on are a portion of the measures that can be received to control the rate of deforestation.

It is believed that nature is the biggest gift that the earth has given to mankind. Thus, it is the duty of the people to protect this gift before it gets perished. Over the last two decades what is been observed is that some people for their own greed are cutting down forest cover, by setting up big factories and then by neglecting their duties towards the mother earth by polluting the very same rivers that provide us water.

In the words of William Ruckelshaus “Nature provides a free lunch, but only if we control our appetites” [1]. In simple words, forests is a restrictive inexhaustible asset that can be recovered however needs a specific timeframe to keep up it’s manageable working. “In India, the forest resources have been found depleting at a pace which is much high when covered the rate in other nations compared in the world” [2].  The reasons behind this rapid industrialization, urbanization, and over-exploitation have resulted not only in decline but is also in permanent loss of forest cover to an alarming rate [3].

The major driver behind every one of these variables is the uncontrolled population that is on the rising which prompts the sensational increment in the interest for wood and timberland items. The over-misuse of timberland assets has occurred past the supported respects satisfy the requirement of people, in this way getting a change the net timberland spread.

With the current pace of increasing population, it is estimated that the population of India, could increase from around 7.6 million to 10 million in the next 30 to 35 years [4]. The developing interest for food is said to be increasing by 50% in the same expected time, this possesses a genuine concern to the forest cover.

Rationale usage and appropriate administration of the forest cover throughout the world, the forest cover is the most appropriate to forestall mass obliteration of timberlands, also, huge scopes species elimination. It is important to discover the connections between the developing requests and fulfilling the needs in a reasonable way. The extent of future investigation must concrete on the answer for the set up this connection by fusing the standards of ranger service, reclamation environment, and common assets financial matters.

Deforestation happens when land at the first ruled by normally happening tree species is changed over the to offer particular types of assistance in light of the human interest. “The UN Food and Agriculture Organization (FAO) has characterized deforestation as the change of the forest cover to another land use or the long-term reduction of tree canopy cover below 10% threshold. Forest areas around the world are majorly cleared for agriculture, logging, mining, and large-scale development projects. The Food and Agriculture Organization coordinated the Global Forest Resources Assessment (FRA) which reported a 3.16% decline in the global forest cover from 1990 to 2015, and the total forest cover stands at about 30.6% as of 2015 as compared to 1990” [5].

“In the year 2016, the University of Maryland reported that 73.4 million acres of global tree cover was lost. Such destruction of this essential and self-sustaining resource puts the implementation of the principle of sustainable development as mentioned in the Brundtland Report and Sustainable development Goals of 1992 of Rio Earth submit in the state of the question. And, it is an urgency to conserve the forest of which a vital part is already lost” [6].

THE MEASURES TAKEN BY THE INDIAN GOVERNMENT IN PROTECTING THE CANOPY LOSS

The government of India has been persistently investing its time in formulating policies and laws that would help it in protecting the forest cover from depleting. The government of India have not only taken measures to save the current forest cover but have also actively taken measure to increase the forest cover. The State and the National Governments are both mutually liable for protecting the forest covers of India. The State and the National Governments have with references of Internationals laws and Conventions to which India is a signatory have come up with some laws that protect the forest cover from depleting.

1) The Indian Forest Act, 1927: This Particular Act is a combination of laws pertaining to the forest cover, the procedure in which one can use the produce of the forest, the amount of tax that would be levied on the products that are made with the use of timber wood. The law further lays down guidelines that need to follow by the government before they can declare a particular area as a reserve forest area, this also includes the village forest. The Act was amended in the year 2012, which restricted any new permit that would lead in clearing the forest cover for any kind of activity, the amended also included a provision that could penalize a person if the person is found setting fire to a reserve forest.

2) Forest Conservation Act, 1980: This law was amended in the year 1988, the main objective of this Act was to protect the forests and also protect all other incidents that may be attached with protecting the forest cover. The enactment of this Act made it compulsory to take prior permission of the central government before conducting any sort of activity in the area of forest.

3) “[73]: The Central Government as a measure to increase the forest cover of India, formulated the National Forest Policy, the enactment of this policy acted as an environmental safeguard, and was also a way forward for sustainable development and would help in maintaining the forest cover” [7].

4) Wildlife Protection Act, 1972: Along with all the other laws that were enacted for protecting the forest cover this Act, was specially enacted for protecting the wildlife that lives in the forest, this was done as a measure to keep a balance between ecological and environmental security of the country.

5) The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006: The Act, was enacted with the reason to perceive, what’s more, the forest rights and occupation in the forest areas, which were occupied by the scheduled tribes who were staying there for generations now. Before the enactment of the law, the rights of the tribes were not recorded but the enactment of this law made it possible for them to record the rights of the scheduled tribes. This Act in a way helped the government in maintaining the diversity and ecological balance which in turn would help in increasing the forest cover while keeping in mind the security of the tribes who reside in these forest areas.

Along with implementing these laws, the central government has formed the Forest Survey of India, an organization that falls under the jurisdiction of the Ministry of Environment, the main objective of this organization gathers all the available data on the forest cover of India, this data is gathered by a survey which is conducted by the organization. The survey helps the organization to prepare a detailed report regarding the factors that have led to the loss of forest cover and gain of forest cover in some areas.

“The Compensatory Afforestation Fund Management and Planning Authority was established by the Government of India in 2009 as a National Advisory Council under the chairmanship of the Union Minister of Environment, forest and climate change for monitoring, technical assistance and evaluation of compensatory afforestation activities. This was probably done by the central government as a measure to promote afforestation and regeneration activities as a way of compensating for forest land diverted to non-forest use” [8].

ENVIRONMENTAL PROTECTION OF CANOPY LOSS VIS-À-VIS CONSTITUTION OF INDIA

The Constitution of India particularly Chapter III on Fundamental Rights, along with the Directive Principles of State Policy, lay down that it is not only the duty of the Government to protect the environment but it is also the duty of every citizen India to protect the environment of India. In the case of Subhash Kumar v. State of Bihar, AIR 1990 SC 420 it has been held that “It is now well settled judicial principle that right to pollution-free environment is the fundamental right and human right of a citizen.” The Supreme Court in Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 at 659-660 held that the ‘precautionary principle’ and ‘polluter pay principle’ is the law of the land”. Prior to the 42nd Amendment, the word ‘condition‘ was not referenced in the Indian Constitution. By this Amendment, Article 48-A was included the mandate standards of state strategy and by Article 51-An, another arrangement was embedded as a key obligation. As indicated by Article 48-A, the State will Endeavor to ensure and improve nature and to defend the forest cover and untamed life of the nation.

According to the sub-proviso (g) of Art. 51-An, “It will be the obligation of each resident of India to ensure and improve the common habitat including forest, lakes, streams and untamed life and to have sympathy for living animal.

In the Case of Rural Litigation and Entitlement Kendra v. State of UP, AIR 1987 SC 359, the Hon’ble Apex Court of India was of the opinion that along with the Government of India, the citizens of India are also equally obliged to protect the environment. The Government of India is obliged to do so by the virtue of Article 48-A and simultaneous the duty is also imposed on the citizens of India by the virtue of Article 51-A (g). The courts in L.K. Koolwal v. State of Rajasthan & Ors, AIR 1988 Raj 2 the Hon’ble Supreme Court expanded the scope of Article 51-A, the court held that it is true that by the virtue of this article the citizens are obligated to maintain and protect the environment, they can enforce their rights to a clean and a pollution-free environment, by the virtue of Article 51-A (g).

In M.C Mehta v State of Orissa, AIR 1992 Ori 225 the court held that right and duty are two sides of the same coin, without a right, there is not duty and vice versa. This means that if the forest cover of India is not protected, this could lead to severe deforestation and loss in the forest cover which in-turn would increase the pollution, thus violating the fundamental right of a clean environment as embedded under Article 21 of the Constitution of India.

INDIA’S INTERNATIONAL COMMITMENTS

The loss of Canopy area or forest cover is an environmental issue not only faced by India, but by all the nations around the world. It can be noted that many of the policies and laws enacted by the Government of India, to protect its forest cover are in accordance with its commitments to several International Conventions and Environmental law. According to the legal maxim “sic utero tuo ut alienum non laedas” which means one must use his own rights so as not to injure others. This maxim is the guiding factor or principle that the citizens of a nation could follow so as to make sure that they stay in a healthy environment that is free of pollution.

The “Trial Smelter Case” i.e., United Nations v. Canada, 39 Am J Int’l Law 684(1941) is a significant case in this matter. The principle laid down in this case by the court was that no state whatsoever may cause harm to the forest territory of another nation by attempting to burning it, this very same principle was later used by the courts to solve a dispute between Mexico and United Nations, wherein Mexico claimed, that the foul smell from the dockyard which is located in the United States was harming the forest cover of Mexico.

The extent of the Liability in such cases was determined by the “Gut Dam Arbitration” 4 ILM 473 (1965) further the legal maxim “sic utero tuo ut alienum non laedas” was used as a point of reference to lay down principles 21 and 22 of the Stockholm Declaration on Human Environment, 1972.

Some of the principles that were adopted by India, while laying down domestic laws pertaining to protect illegal Canopy Loss were:

1. Polluter pays Principle

2. Precautionary Principle and Principle of New Burden of Proof

3. Sustainable Development

4. Inter-Generational Equality

5. The Doctrine of Public Trust.

CONCLUSION

India is a diversified country that follows many different religions, but one thing that unites all the religion or what binds them together is the nature and need to protect it. India is a signatory to many International Conventions, whose bare reading implies that protecting the Environment is the foremost duty of the citizen of any country. It is a sad reality that keeping in mind its International Conventions the Government of India was enacted many policies and laws that on paper are strict enough, but in real life situation, the Government of India has failed in implementing these laws which are leading to many incidents of illegal removal of forest cover, polluting the forest cover. Apart from many legislation and policies that India lacks is a comprehensive environmental law, in the absence of one the judiciary of India has done a fantastic job of intervening in many cases, thus creating a balance between environmental protection and development of the nation.

Protection of Environment is not only a part of many legislation but is also a fundamental right as enshrined under Article 21 of the Indian Constitution. Thus, what lacks is the co-ordination between the state and central government, both the governments along with the citizens of India should work together to protect our environment the greatest gift of the earth for getting depleted or polluted.

REFERENCES

[1] William Ruckelshaus, Business Week 18 June 1990.

[2] Bowonder B. Deforestation in India, International Journal of Environmental Studies.    1982; 18:223-236.

[3] Nagdeve DA. Population growth and the environmental degradation in India. Asian Pacific Journal on Environment and Development. 2007; 14:41-63.

[4] Department of Economics and Social Affairs. 2015. United Nations. Retrieved from: http://www.un.org\en\development\desa\news\development\2015-report.html;Accessed on 9^th July 2020.

[5] FAO. Global Forest Resources Assessment. FAO forestry paper No. 1. Rome: UN Food and Agriculture Organization;2015

[6] Deforestation in India: Consequences and Sustainable Solution, by, Rima Kumari, Ayan Banerjee, Rahul Kumar, Amit Kumar, Purabhi Saikia and Mohammed Latif Khan.

[7] National Forest Policy. 1988. Govt of India, New Delhi.

[8] World Resources Institute, 2014, Forest Legality Initiative. Retrieved from: https:\\forestlegality.org\risk-tool\country\India, last accessed on 10^th July 2020.