20 Oct 2023 11:13 AM GMT
The Supreme Court on Friday issued notice on a plea challenging the constitutionality of the recent amendments to the Forest (Conservation) Act.
A bench of Justices BR Gavai, Aravind Kumar, and Prashant Kumar Mishra was hearing a writ petition filed by retired civil servants, including a former secretary and an additional secretary to the Ministry of Environment, Forest and Climate Change (MoEFCC). Also among the petitioners are five former principal chief conservators of forests and ex-members of a standing committee of the National Board for Wildlife (NBWL).
The petitioners have contested the constitutionality of the Forest (Conservation) Amendment Act, 2023, citing concerns that the new law would significantly undermine the country’s long-standing forest governance framework. They have said that the amendment represents a ‘complete dereliction of duty’ imposed on the State to protect and improve the environment. Accordingly, emphasising the adverse implications of the amendments on the environment, biodiversity, and climate resilience on the one hand; and the constitutional imperatives enshrined in Articles 14, 21, 48A, 51(c), and 51A(g) of the Constitution on the other hand, the petitioners have asked for the impugned amendment act to be invalidated. In support of their contention that the recent amendments ought to be set aside, they have also invoked several seminal principles of Indian environmental law, such as precautionary principle, intergenerational equity, principle of non-regression and public trust doctrine, all of which have allegedly been overlooked.
The 2023 Amendment Act, it has been contended, restricts the scope of the Forest (Conservation) Act 1980 by effectively altering the definition of forest land that falls within its purview. Such a change, according to the petitioner, contravenes the principles set forth by the Supreme Court in its 1996 order in TN Godavarman Thirumulpad. This is an omnibus forest protection matter in which the court issued the longest-standing continuing mandamus in the field of environmental litigation. Since 1996, when the writ jurisdiction of the court was first invoked by a plea to protect the Nilgiris forest, numerous orders have been passed on a vast array of issues, such as deforestation, logging, mining, compensatory afforestation, and endangered species.
The former civil servants have further argued that the amendments allow for exemptions for various projects and activities in forest lands, potentially serving commercial interests at the expense of the broader public welfare. The petition states –
Each diversion of land without any cumulative ceiling being prescribed across the country, the petitioners have further argued, will ‘pockmark’ our forests with cancerously growing deforested islands and fragment them, causing enormous ecological loss. They have also raised concerns over the ‘vagueness’ surrounding project definitions and the potential for large-scale destruction of forest lands. To illustrate their contention, the petitioners have referred to provisions pertaining to security-related infrastructure, plantations, and reforested areas.
Apart from this, the former civil servants have expressed reservations about the delegated legislative powers granted to the government under the amended act, insisting that the absence of adequate guidelines for exercising such discretion could facilitate forest land diversion without appropriate regulatory oversight.
Notably, the petitioners have also called into question the rigour of the pre-legislative consultation process, alleging that a joint committee of parliament entrusted to review the legislation disregarded crucial evidence and overlooked critical concerns voiced by various stakeholders –
Additionally, concerns were raised about the parliamentary committee accepting ‘at face value’ an assurance made by the environment ministry that all categories of forests defined by the state expert committees constituted in terms of the Supreme Court’s 1996 order would be given protection, without assessing the state expert committee reports. The petitioners have, in this connection, advocated for a ‘Brandeis brief’ approach with the goal of outlining the actual or probable social effects of legislation, especially because the damage caused to the environment by a ‘constitutionally deficient’ legislation would be irreversible. The petition states –
In conclusion, the petitioners have argued –
Case Details
Ashok Kumar Sharma, IFS (Retd) & Ors. v. Union of India & Ors. | Writ Petition (Civil) No. 1164 of 2023