CASE REVIEW: T.N. GODAVARAM THIRUMULPAD V.
UNION OF INDIA
BALLB. (INTEGRATED LAW DEGREE COURSE)
ENVIRONMENTAL LAW-1 (SEMESTER-IV)
“CASE REVIEW”
T.N. GODAVARAM THIRUMULPAD V. UNION OF INDIA
SUBMITTED TO: SUBMITTED BY:
Mr. ZAIN SALEH SUCHET PAROCH
FACULTY OF ENVIRONMENTAL LAW-I (18RU11017)
DESIGNATION: ASSISTANT PROFESSOR
TABLE OF CONTENTS
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FACTS.........................................................................................................................................3
ISSUES........................................................................................................................................5
ANALYSIS...................................................................................................................................6
CONCLUSION..............................................................................................................................9
FACTS
1) In 1995, T.N. Godavarman Thirumulpad filed a writ petition with the Supreme Court of
India to protect the Nilgiris forest land from deforestation by illegal timber operations. In
view of the great significance of the points involved in these matters, relating to the
protection and conservation of the forests throughout the country, the Court formed the
opinion that the matters required a further in-depth hearing to examine all the aspects
relating to the National Forest Policy.
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2) However, it considered that certain interim directions were necessary in respect of some
aspects, to oversee the enforcement of forest laws across the nation. The Court issued
detailed directions for the sustainable use of forests and created its own monitoring and
implementation system through regional and state level communities, regulating the
felling, use and movement of timber across the country in the hope of preserving the
nation's forest.
3) The Court examined in detail all the aspect of the National Forest Policy, the Forest
Conservation Act, 1980, which was enacted with a view to check further deforestation. It
emphasised that the word 'forest' must be understood according to its dictionary meaning
of the term irrespective of the nature of ownership and classification thereof. According
to this new broader definition, any forest thus defined, regardless of ownership, would be
subject to §2 of the FCA1. Section 2 of the Act specifies that no state government or other
authority may allow the use of any forest land for any non-forestry purpose without prior
approval from the central government.
4) Under the new interpretation of forest land under §2 of the FCA, states could no longer
de-reserve protected forests for commercial or industrial (non-forestry) use without
permission. Among the directions issued, the following are the principle ones:
All forest activities throughout the country, without the specific approval of the
Central Government must cease forthwith. Therefore, running of saw mills,
plywood mills and mining are all non-forest purposes and they cannot carry on
with the Central approval;
The felling of all trees in all forest is to remain suspended except in accordance
with the working plan approved by the Central Government;
Complete ban on the movement of cut trees and timber from any seven north
eastern states of the country either by rail, road or water ways. The Indian
railways and state governments were directed to take all measures necessary to
ensure strict compliance of this directions. Railways were asked to shift
immediate to concert tracks than to using wooden sleepers. Défense
establishments were also asked to find alternatives to consumption of wood-based
products;
1
Restriction on the de-reservation of forests or use of forest land for non-forest purpose. —Notwithstanding
anything contained in any other law for the time being in force in a State, no State Government or other
authority shall make, except with the prior approval of the Central Government, any order directing, —
(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being
in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose; 1[(iii) that any forest land
or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority,
corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land
or portion, for the purpose of using it for re-afforestation.] 2[Explanation.—For the purposes of this section
‘‘non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for—
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;
(b) any purpose other than re-afforestation, but does not include any work relating or ancillary to conservation,
development and management of forests and wild-life, namely, the establishment of check-posts, fire lines,
wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks,
boundary marks, pipelines or other like purposes.]
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A High-power Committee was to be constituted to oversee the implementation of
the judgment and to guide the Court in making further orders, especially in the
North East. The Committee was directed to prepare an inventory of timber and
timber products lying in the forest, transport depots and mills in the region. The
HPC was empowered to permit the use or sale of timber products if it considered
appropriate through the State Forest Corporation.;
Licenses given to all wood-based industries shall stand suspended;
An action plan shall be prepared by the Principal Chief Conservator of Forest for
intensive patrolling and other necessary protective measures to be undertaken in
identified vulnerable areas and quarterly report shall be submitted to the Central
Government for approval.
ISSUES
1. Whether the guidelines which include designating a regulator at the national level
along with state-level assistants are advisory or mandatory in nature?
2. Whether section 2 of the Forest (Conservation) Act, 1980 should be read with section
3 of the EPA,1986 and the Forest Policy, 1988?
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ANALYSIS
1. Godavarman Thirumulpad filed his case against the Union of India to preserve the
forest in his home region. The Supreme Court took the case and used it as grounds for
implementing and administering national forest policy to a point far beyond the
original scope of the case. The Supreme Court made interpretations and issued orders
that pertain to all states and forests in India, not just the forests of Godavarman’s
home region. The Supreme Court was endeavouring to address the very important
dilemma of forest management, or mismanagement, in India. Forest cover in the
country was deteriorating, and unless India quickly affirmed sustainable forest
practices, the country’s ecological stability and biodiversity would sustain immensely
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to the loss of future generations. The Supreme Court acknowledged the importance of
forest preservation and commented on the increasing devastation and degradation of
forest land. The Supreme Court noticed that those national and state organizations
accountable for forest management were floundering in their duties. In light of
national and state governments’ inaction, the Supreme Court’s unusual assumption of
powers seems justified, especially given India’s alarming statistics on forest cover.
2. The Forest Survey of India (FSI) last reported India’s forest cover as 20.64% of the
country’s geographic area.2 Intending to increase the national forest cover to 33% by
2012, India still appears under forested.3 Moreover, the methodology behind this
statistic implies that the figure of 20.64% is specious. The measurement of forest area
splits down as follows: Very dense forest (more 1.56% of the than 70% forest cover)
geographic area. Moderately dense forest 10.32% of (40-70% forest cover)
geographic area. Open forest 8.76% of (10-40% forest cover) geographic area. Total
forest cover: 20.64% (includes mangroves, 0.14% of the geographic area).4 FSI
reports that 8.76% of India’s forest cover is open forest, but what is “an open forest?”
With a minimum area of 1 hectare (or 2.471 acres) for measurement, land with a
canopy density of only 10% hardly seems to suit as “forest.” Furthermore, FSI does
not differentiate between private and public land, i.e., it does not distinguish between
forests and fruit farms or tea and coffee plantations. The survey includes all perennial
woody vegetation with a canopy density above 10%, despite its ownership or makeup.
3. Open forest could be too thinly covered to be deemed forest in the measurement of
India’s ecological health. Because FSI’s view of the open forest includes sparsely
vegetated land in its total count and because it fails to differentiate among different
types of vegetation and ownership, the real forest cover of India could be as low as
12%, a far greater distance from the national goal of 33%. Given the difficulties with
the current statistics and the alarmingly low percentage of real forest cover, the
Supreme Court’s interference in forest policy was, at least in this respect, supported.
National and timely action was needed to curb deforestation. In many ways, the
Supreme Court’s activist stance toward forest management has had some positive
outcomes. India already had environmental laws to regulate forests and
encroachments, but sub-competence, inadequate staffing, and corruption prevented
the executive branch and its underlying agencies like the MoEF from implementing
policies and modifying them to India’s changing environmental needs.
4. Hence, the Supreme Court’s comprehensive orders and its wide appropriation of
powers slowed and possibly converted two ecologically dangerous trends: that of an
ineffective government and that of depleting forest cover. By so aggressively and
controversially pontificating forest issues, the Supreme Court has also boosted
2
State of Forest Report, 2003, Forest Survey of India, Ministry of Environment and Forests, Dehradun, June
2005. Until 2001, when the scale for mapping from satellite data was 1:50,000, the scale for satellite mapping
was 1:250,000. So while recorded data since 1987 (when the forest cover was recorded 19.49%) suggests that
forest cover has increased by 1% to the current 20.64%, the increasing ac- curacy of measuring forest cover
suggests the possibility that no significant change has occurred. J.K. Rawat, et al., Application of Satellite-Based
Remote Sensing for Monitoring and Mapping of India’s Forest and Tree Cover, available at
http://www.gisdevelopment. net/application/environment/ffm/ma04067pf.htm.
3
National Forest Policy of India (1988).
4
See supra note 94, at 20-21.
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awareness concerning India’s forest cover. Although its hastiness caused many
anticipated and perhaps avoidable effects, these works have in many ways helped
India’s environment and given advocacy groups a renewed chance to protect India’s
forests. The Supreme Court’s efforts have also addressed negligent forest
management. India realises that the constitutional right to life depends on the right to
a clean and healthy environment. To implement the right to life, the government has
the legal obligation to effectively conserve forests and biodiversity. The government’s
past inaction and inadequate acknowledgement to environmental issues can be viewed
not as exercises of administrative discretion, but as breaches of law that would justify
the Supreme Court’s interference. From this perspective, the Supreme Court’s policies
have ventured to uphold the right to life when it was being seriously underestimated.
5. Although decisive action may have been important, the Supreme Court’s orders made
requests far beyond its control. The Supreme Court assumed too much power too
quickly to efficiently manage it. Its orders may have been reasonably sound, though
half-done, from a policy perspective, but from a practical view, they demanded too
much from India’s weak state and local governments. The Supreme Court did not
apply sufficient caution in extending its role to instantly oversee forestry issues.
Despite the Supreme Court’s defense of the right to a clean and healthy environment
as part of the right to life, the Court’s activist policymaking violated people’s right to
life by critically disrupting the timber industry, i.e., people’s right to a livelihood, and
sparking violent action against tribal peoples and alleged forest encroachers.
6. The Supreme Court could have limited its decisions to the scope of the initial
Godavarman case or even delegated responsibility for handling certain issues to
government agencies. Slowing down its interruption in forest management or limiting
its geographical scope might have blocked states from hastily and unjustly evicting
tribal from their homelands in response to an order by the MoEF. So, while the
Supreme Court has in some ways improved India’s approach to forest issues, its
aggressive role in the process has disrupted the balance of powers among government
organizations and caused severe economic and social turmoil. By assuming so much
power, the Supreme Court has perpetuated an incompetent government bureaucracy
that defers to the Supreme Court for policymaking.
7. The MoEF’s recent efforts to correct its past mistakes concerning tribal
encroachments suggest that the government is making the necessary adjustments to
ease the economically and socially harmful effects of the Supreme Court’s orders. But
the process of building the bureaucratic infrastructure, which hung loosely behind the
Supreme Court for so many years, will require more time. Even though the MoEF is
improving its policy toward tribals, the Godavarman case has provided it with ample
opportunity to expand its powers, and it has vigorously done so. Similarly, the CEC
has immense influence with its authority to issue orders consistent with the Supreme
Court. The CEC is comprised of the former Secretary of the MoEF as its chairman,
the Additional Director General of Forests of the MoEF as its MoEF representative,
and the Inspector General of Forests as its member secretary. 5 As the MoEF has
5
See supra note 69.
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representation in every national forest-related committee, it continues to grow in
power as new committees are constituted to manage forest issues that states have been
unable to handle. The centralization of forest management bypasses much state
inefficiency.
8. It also increases the distance between the administrators of forest policy and the tribal
people who are affected by it and who are inextricably involved with forest
protection. The Supreme Court’s “continuing mandamus” in the case also leaves open
the possibility for further judicial activism that might interfere with the progress of
other agencies toward fair and productive forest and human rights policies.
CONCLUSION
When the Supreme Court received the Godavarman case in 1995, India’s environmental
policy was in desperate need of reform. The Supreme Court’s actions, although intense,
addressed an issue vital to the human and natural health of the country and opened heart to
advocates of forest protection. However, in raising the consciousness of environmental issues
and drawing them to the lead of national and judicial concern, the Supreme Court began the
disturbing practice of “continuing mandamus.” In hearing over 800 interlocutory applications
since 1996, the Supreme Court has stretched its involvement in forest issues and thereby
increased the country’s dependency on the Supreme Court for forest management.
This dependence on a judicial institution that has already overstepped the boundaries of its
responsibilities has been further confused by the lack of monitoring of the Supreme Court’s
orders and the uncertainty of the legislative and executive roles regarding forest issues. With
its micro-management of forest issues and the increasing number of Supreme Court-instituted
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organizations, the potential for dispute is hardly over. How long will the Supreme Court
sustain an active continuing mandamus and who will control the Court’s hundreds of
decisions, discussions, and policy judgments to guarantee it does not roam precariously far
beyond the boundaries of its constitutional role? As the consolidation of power to
government organizations like the MoEF increases, will the executive, legislature, and
judiciary achieve in cooperatively managing India’s forests, or will the Supreme Court’s far-
reaching presumption of powers clash with the central government’s policies?
And amidst the delegation, redistribution, and reorganization of responsibilities and powers,
what will happen to India’s forests and the tribal people who inhabit them? The Supreme
Court’s aggressive forest management has incurred large economic and social costs. It
remains to be seen whether the Court can successfully transfer control to the appropriate
governmental organizations, whether it can effectively manage the organizations it has
formed, and whether it will avoid further economic and social disruption while attempting to
restore India’s forest cover.
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