The Bombay High Court has recently disposed of a Public Interest Litigation (PIL) filed against encroachments in the reserved forest area of the Khadsangi Range of Tadoba Andhari Tiger Reserve buffer zone.

The PIL has been filed by activist Prerna Singh Bindra.

K.P. Mahalle, the counsel for the petitioner, stated that the respondent – Forest Officers have issued communications to remove the encroachment; however, no further action has been taken.

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The grievance in the petition is regarding the failure of Deputy Director (Buffer) and Range Forest Officer in removing the encroachment. Government Pleader informed the Court that the seniormost officer in this regard, who can look into the issue and give necessary directions to these Respondents, would be the Principal Chief Conservator of Forests (Wildlife).

The Government Pleader further stated that the Principal Chief Conservator of Forests will consider the petition as representation and take necessary steps as per law.

After considering the submission, the Nagpur Bench of Justice Nitin Jamdar and Justice Anil L. Pansare directed that the PIL be placed before Principal Chief Conservator of Forests (Wildlife) who would look into the grievance of the petitioner. If it is correct, proceed to take the necessary action as per law after following the due procedure. “Considering the importance of the issue, the steps be taken as early as possible, subject to other urgent commitments,” the bench ordered.

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While disposing the PIL , the Bench directed that if Principal Chief Conservator of Forests (Wildlife) proceed to issue directions to take action, then all other concerned authorities of the State will extend necessary co-operation to the Respondents.

The Madras High Court directed the Principal Chief Conservator of Forests to prepare a catalogue of all captive elephants in the State. The Division Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu passed this order while hearing a petition filed by Rangarajan Narasimhan.

In this case, a Powerpoint presentation has been made in the course of the virtual hearing by Prakash of Elsa Foundation. The presentation has two segments. In the first, some perceived scientific data have been attempted to be furnished, while, in the second, violations of the laws of this country while capturing elephants or keeping elephants in captivity or trying to domesticate elephants have been pointed out.

The presentation claims that there is widespread abuse of authority by forest officials across the country and the virtual trading in elephants.

In the matters, Rangarajan Narasimhan, who is a regular petitioner in person in PILs pertaining to temples and Hindu religious practices, including temple elephants, claims that the two elephants at the Sri Rangam temple who are without their regular mahouts are in grave distress.

Earlier, Narasimhan had also complained of the elephants kept in captivity by forest officials being kept away from public view and being ill-treated at forest camps. The Court said that, in the course of the proceedings, a concrete suggestion has come from the Rangam temple to the effect that such a temple has excess land near the temple and close to the Cauvery where the elephants can be housed in a forest-like habitat and taken to temples only for ceremonial purposes.

The Court further said that the suggestion is a welcome departure, it is also time to re-think whether, in the light of the law in the country, elephants can be subjected to the ignominy of participating in temple celebrations or temple rituals and whether such activities are any better than elephants being used for begging on streets. Religious sentiments must, at times, yield to reason and the animal’s point of view, if at all the same may be perceived, may also be taken into consideration upon obtaining scientific and expert advice in such regard.

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The Court noted, “At least, one set of parties or petitioners questions the very basis of the underlying theme in the presentation made on behalf of Elsa Foundation. Such party seeks to suggest that elephants have been domesticated and used traditionally in religious and cultural programmes for years and, if well treated, there may not be any conflict between man and the elephant, even if the elephant is subjected to life among humans and in human habitat.

At the same time, there are many captive elephants, whether with temples or with individuals or, as some suggest, actually owned by individuals but allowed to be kept at temples as it may suit both parties. In addition, there may be elephants used by forest officials. There may also be elephants in distress and who may not be fit or equipped to return to the wild.”

The Bench stated that the Principal Chief Conservator of Forests will prepare a catalogue of all captive elephants in this State. Video-recordings of all such elephants, together with complete profile of each elephant, including the age, sex, lineage, if possible, should be indicated. Every endeavour should be made to indicate how the elephant came to be captured or domesticated. The exercise should be completed by obtaining video-recordings of all the captive elephants in the State and providing the profile features in course of such video-recording or otherwise.

The Court observed, “As far as the temple elephants are concerned, the Principal Chief Conservator of Forests should assign appropriate officials, along with Doctors from the relevant areas, to inspect the elephants and ascertain the state of their health. This exercise may be conducted for all captive elephants in the State, but beginning with elephants in the temple.

The number of elephants available with the forest officials should be indicated with a similar profile and the history of how the animal came to be captured or used by forest officials. It is also necessary to ascertain whether any practice continues in which elephants are captured today, if only for the purpose of use by forest officials; and the permissibility thereof.”

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“Several aspects of how elephants are traded in by forest officials have been indicated in the presentation made by Elsa Foundation. The Principal Chief Conservator of Forests should respond to such aspects of the matter by way of a report that may be filed. At any rate, the video recordings as sought by this order should also be accompanied by a small report detailing how the video recording was prepared, so that an element of accountability and authentication is evident,” the order reads.

The Court ordered that the appropriate departments of the State Government, be it the Animal Welfare or Animal Husbandry or the like department, should extend all cooperation. The Animal Welfare Board of India, and if there is any State level corresponding body, should be kept informed of the matters for rendering science based assistance in the conduct of the matter and the treatment of elephants and in particular and wildlife in general.

The Court has fixed the next hearing of the petition on September 24.

In the area of environmental protection, there remains a yawning gap between existing laws and their implementation. More often than not, environment protection yardsticks are crucified at the altar of development.

In this age and time, those dealing with environmental laws and trying hard to implement them also need paralegal training to achieve their goals. A thorough knowledge of environmental laws won’t suffice, what is also needed is an understanding of how to use them.

Environmental researcher KANCHI KOHLI provides deep insights into environmental governance and empower environmentalists.

Recently, I received a query from Madhya Pradesh about whether a mining company was allowed to lop off branches and demarcate trees in a forest area. Such queries are common in many parts of the country where forest land is sought for “non-forest use” like industries, dams, roads, mines, and ports.

Confusion reigns, both among community organizers and affected people, about where the buck really stops, especially on what constitutes a “final” diversion of forest land and how the legality of some particular activity on forest land can be questioned. Legal aid practitioners (both formal and voluntary), affected people, and government agencies need to come out of this lack of clarity, illustrated in this case from Madhya Pradesh. The villagers, who had organized themselves into a sangharsh samiti (struggle committee) and had been resisting coal mining operations in the area, had seen the representatives of a mining conglomerate enter the Sal forests typical of this area. When asked by the villagers if they had permission to lop branches off and demarcate trees, these representatives reportedly responded that they had the approval of the Divisional Forest Officer (“DFO”) to enter the forest for such work. They also said that they had recently received permission from the Ministry of Environment and Forests (“MoEF”) to divert the forest land. The villagers should also be aware that it was only a matter of time before the company would be allowed to start mining activity.

On the other hand, local social activists had informed the protesting villagers that the MoEF’s approval was not enough for any mining company to start operations. With this information in hand, the villagers asked the companywallahs whether they had the permission in writing to enter the forest, and they were not able to provide any.

Relevant laws

The Indian Forest Act, 1927 (“IFA”), its corresponding state laws, and the Forest Conservation Act, 1980 (“FCA”) apply to the issue of diversion of forest land for non-forest use. In the Indian constitutional scheme, both the Union government and the state governments can make law on the subject of forests.

Anyone who wants to use the forest, whether it is a government department, or a private agency, or an individual, needs the permission of the relevant forest department, and the DFO in particular, to divert the forest land. The DFOs needs to inspect the site, prepare a report based on a series of criteria, and forward their recommendation on whether the forest should be given away for non-forest use. Based on the DFO’s recommendation, the Principal Chief Conservator of Forests (“PCCF”) should forward the proposal to the MoEF. This practice of taking prior approval from the MoEF by the state government was institutionalized through the FCA in 1980, when the Union government felt that the country’s uncontrolled and unprecedented rates of deforestation required central regulation.

At the MoEF, for cases like this, a Forest Advisory Committee (“FAC”) reviews the proposal and gives its recommendations. During this process of review, the FAC can call upon experts, take additional site visits, and seek any amount of additional information. In this case, the FAC had (as documented here) already reviewed the proposal thrice and had refused permission on the grounds that diversion would cause the loss of forests of a very good quality and that the coal from mining coal in the area would only last for fourteen years.

After extensive political and bureaucratic lobbying however, this company received approval in two stages—first in October 2012 and then in February 2014. In accordance with the MoEF’s practice, they received the first (in-principle) approval with a wide list of conditions including the recognition of the rights of tribal and forest dwelling communities under another critical national law, ensuring land is made available for compensatory afforestation, and carrying out a whole range of studies related to the cumulative impact of the mines on water and other resources. The approval at the second stage came amidst even more controversy.

Through this period, the affected community and local activists protested against the fact that the due procedures of law had not been followed, especially those related to forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”). Before the final diversion takes place, the process under the FRA, including taking the necessary permission from the Gram Sabha (village assembly), needs to be complete.

The villagers, now armed with the relevant legal provisions with some help from local and national activists and legal empowerment practitioners, complained to the District Collector and the Minister of Tribal Affairs. Tools such as the Right to Information Act, 2005 were important for them to be able to procure panchayat records and verify the signature of the villagers. The company and the government had claimed that the process under FRA was complete as villagers had signed on their claims at a gram sabha meeting. Information accessed using the RTI Act revealed that many of the signatures were forged. What the company had hoped would be behind them, is now an issue that remains unresolved and open to a formal enquiry.

With the final approval from the MoEF, the coal mining company had entered the area to initiate the lopping and demarcation work. They still did not have the approval of the state government. They had applied to the State Forest Department for diversion, but without the permission required from the state government under Section 2 of the FCA and the corresponding provisions of the IFA, they cannot move ahead, especially if the forest is a “Reserved Forest”.

Now, the villagers have also filed a complaint with the MoEF and the state forest department. In their letter, they have said that the activity carried out by the company’s representatives was in contravention of the law and that action should be taken. While they are yet to receive any formal reply, the complaint has deterred the company from carrying out any further activity.

It is only a matter of time before the land required for compensatory afforestation is found and the collector’s report is finalised. The legal action might then move from the administrative and regulatory arena to the wisdom of the judiciary. All the build up till now, will then be the evidence, which is critical in any such situation to prove and illegality.

Many similar cases involving the issue of diversion of forest land for non-forest use may be developing across the country. Understanding the law and practice of forest diversion and recording illegalities will be critical for all concerned. Each case will be peculiar and as practitioners, we will need to delve deeper and work with the affected community to build evidence around it. Even when it comes to the environment, the law is best invoked when backed up with proof.

—Kanchi Kohli is the author of Communities and Legal
Action. This e-book was published by MyLaw.net