COMMENTARY Economic & Political Weekly february 2, 2008 11 Supreme Court and India’s Forests Armin Rosencranz, Sharachchandra Lélé The T N Godavarman vs Union of India case in the Supreme Court, also known as the “forest case”, is an example of the judiciary overstepping its constitutional mandate. The court has effectively taken over the day-to-day governance of Indian forests leading to negative social, ecological and administrative effects. Armin Rosencranz (armin@stanford.edu) is at Stanford University, United States, and Sharachchandra Lélé (slele@isec.ac.in) is at the Centre for Interdisciplinary Studies in Environment and Development, Institute for Social and Economic Change, Bangalore. I n 1995, T N Godavarman Thirumulpad filed a writ petition with the Supreme Court of India to protect a part of the Nilgiris forest from deforestation by illegal timber felling. 1 The Supreme Court clubbed the Godavarman case with another writ petition with similar issues, 2 and expanded its scope from ceasing ille- gal operations in particular forests into a reformation of the entire country’s forest governance and management. In its first major order in the Godavarman case on December 12, 1996, the court inter alia re- defined the scope of the Forest Conserva- tion Act 1980, suspended tree felling across the entire country, and sought to radically re-orient the licensing and func- tioning of forest-based industries. Subse- quently, more than 2,000 interlocutory applications have been admitted, 3 and several hundred orders have been issued, many with far-reaching implications. But the case is still pending in the Supreme Court. In the process, the court has gone far beyond its traditional role as the interpret- er of law, and assumed the roles of policy- maker, lawmaker and administrator. 4 The Supreme Court’s assumption of such vast powers has no precedent, either in India or in other developing countries. While the initial orders may have been justified, the implications of this sweeping and continuing intervention by the judici- ary are far more double-edged than cele- bratory accounts of the Godavarman case 5 suggest. Indeed, the time has come to call a halt to this judicial adventurism and focus on improving the quality of forest- related jurisprudence. From Reinterpretation to Execution The Supreme Court began by reinterpret- ing the meaning of “forest” in the Forest Conservation Act (FCA) of 1980. The FCA essentially requires central government approval for conversion of forest land to non-forest purposes. Till 1996, the FCA was assumed to apply only to reserve for- ests. The Supreme Court said the act ap- plied to all forests regardless of their legal status or ownership. 6 It also redefined what constituted “non-forest purposes” to include not just mining but also operation of sawmills. But it did not stop at reinter- preting the law for the cases at hand. The Supreme Court ordered all such non- forestry activities anywhere in the country that had not received explicit approval from the central government to cease im- mediately. It also suspended tree felling everywhere, except in accordance with working plans approved by the central government. It completely banned, with minor exceptions, tree felling in three whole states and parts of four other states in the forest-rich north-east. It ordered saw mills to close down not only where a complete ban was directed but even with- in a 100 km radius of Arunachal Pradesh’s state boundary. Finally, it banned any transportation of timber out of the north- east states. Very quickly, the court got sucked into a whole maze of administrative and man- agement issues. Disposal of felled timber, timber pricing, licensing of timber indus- tries, felling of shade trees, budgetary pro- vision for wildlife protection, disposal of infected trees, determination and utilisa- tion of the compensation paid for conver- sion to non-forest purposes, confidential reports of forest officers, and even paint- ing of rocks in forests – all became grist to the Godavarman mill. 7 The court created high powered committees, authorities and a fund for compensatory afforestation. Eventually, as the number of matters com- ing to the court spiralled out of control (due to its own expansion of the case) it got a central empowered committee (CEC) set up under section 3(3) of the Environ- ment (Protection) Act, 1986. More importantly, the court insulated the committee’s members from their roles as central government employees, dele- gated wide-ranging powers to it to dispose matters in accordance with the orders of the court, and made the committee an- swerable only to the court. The court has kept the case open under a “continuing mandamus” and continues to hear and dispose a large number of interlocutory applications every month. To maintain