Aarey Forest Case in Mumbai – Supreme Court Judgement

deepak mehto
By deepak mehto October 8, 2019 15:37

Recently, the Supreme Court ordered the status quo on the felling of trees in Aarey forest case in Mumbai for the construction of a Metro Rail car shed. The court also ordered the authorities to release people, arrested for protesting against the felling of trees. People have been protesting against the  Mumbai Metro Rail Corporation Limited (MMRCL)’s decision to cut about 2600 trees in Aarey Milk Colony.

The background

The Aarey Colony, measuring 1,287 hectares and located adjoining to the Sanjay Gandhi National Park, is known as a major green lung of the Mumbai. According to the Central Pollution Control Board (CPCB) data, the air quality in Mumbai was the worst in 2018 in the last 20 years. 

What the protesters are saying?

Aarey forests are known as the ‘lungs’ of Mumbai. Hence, cutting down these trees only means depriving Mumbai of a vital organ that has been shielding it from increasing air pollution.

Constitutional provisions for environmental protection

Art 21: Right to a healthy environment

Art 48– State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country (Directive Principles of State Policy)

Art 51 A – Fundamental duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures

Who gave the approval for cutting down the trees and for what purpose?

The Mumbai Metro Rail Corporation (MMRC) had approached the Tree Authority to seek permission for felling the trees to make way for a car shed which is a part of the Mumbai Metro project.

The approval for cutting down the trees was given by the Tree Authority of Bombay Municipal Corporation. The state govt. says that Aarey forests are unclassed state forest and there is no restriction of cutting down the trees in the unclassified state forest.

The protesters led by an NGO Vanashakti sought a declaration from the Bombay High Court that Aarey Milk Colony is a forest or an eco-sensitive zone that required protection since it is adjacent to Sanjay Gandhi National Park.  The court rejected the petition as it was not competent to declare such things.

Contention in the Aarey debate has been whether the area is officially designated as a “forest”. Now, the SC has said it will examine if the area is part of the eco-sensitive zone or forest or not. 

This case has opened the debate about forest land classification in the country.  It has also ignited the development vs. environmental protection debate

How forests are classified in India?

As the Indian Forest Act of 1927 empowered Indian state governments to enact rules regulating various aspects of forest management, rules differ from state to state.

Indian forests are classified under the following three categories under the Indian Forest Act of 1927 :

  1. Reserved forests-These forests were under the direct supervision of the government where no public entry is allowed for collecting timber and grazing of cattle. About 53 per cent (40.1 millionths.) of forest area fell under this category. Reserved Forest is notified under section 20 of the Indian Forest Act, 1927 or under the reservation provisions of the Forest acts of the State Governments. It is within the power of a State Government to issue a preliminary notification declaring an area to be a Reserved Forest. 
  2. Protected forests-These forests were looked after by the government but here local people were allowed to collect timber/firewood and graze their cattle without causing serious damage to the forests. These occupy about 29 per cent (21.5 million ha) of the total area of forests in the country.
  3. Unclassified forests (village forests)-These are unclassified forests where there is no restriction on the cutting of trees and cattle grazing. About 18 per cent (13.1 million ha) of the country’s forests fell under this category. 

Previous related Supreme Court Judgement on Aarey Forest Case in Mumbai

Supreme Court’s order in the TN Godavarman Thirumulkpad vs the Union of India, 1996

  • In the order, the apex court had observed that the Forest (Conservation) Act, (FCA) 1980, was brought in to prevent deforestation and goes on to add that its nature of land classification doesn’t matter. Non-forest land came under the FCA. 
Forest Conservation Act, 1980

  • restricts the use of forest land for non-forest purposes
  • prevents the de-reservation of forests that have been reserved
  • restricts leasing of forest land to private individuals, authority, corporations not owned by the Government
  • prevents clear-felling of naturally grown trees.

One needs permission to use forest land for non-forest purposes.

  • Moreover, the court had also said that forests will not just be areas recorded as forest land in government records, but all areas which are similar to the dictionary definition of a forest, irrespective of the classification of land.
  • The word forest must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. 
  • Under the Godavarman order, the states were supposed to identify and notify forests. Most states have a criterion for declaring forest lands, like in Gujarat they consider patches of land, which has an area of two hectares and has 50 trees to be a forest. Maharashtra government has not notified any such criterion

Loopholes in the classification of forests in India

No legal definition of forests

  • While the Forest Conservation Act, 1980 laid down the provisions for the protection of forests, it did not define a forest. Land that is not explicitly declared as forest is especially susceptible to such land grabs. 
  • Different classifications of land in various states, as well as messy revenue and forest records, caused the poor implementation of the FCA, often leading to litigations over thousands of hectares of land across the country.
  • The legal definition, pending since 2006, will help in identifying areas where development and industrial activity can take place without statutory clearances under the FCA. At the same time, clearances, compensatory afforestation and payment of levies would be compulsory for the areas now defined as forests.
  • The Supreme Court order failed to specify which dictionary it was referring to and sent forest classification in India into utter chaos.
  • One can’t simply call anything that looks like a forest because there are a host of other issues to take into consideration: to whom does a forest belong?; who lived on its land before it was declared a protected forest?; how did they earn their livelihood?; what are their rights?; did they give their consent?; how will the forest department’s ownership affect them?

What the govt. says?

  • The govt. is working on a definition for forests. In draft forest policy, 2016 it had given the definition but the draft was rejected. The govt. wants to avoid a situation in which selfish interest find loopholes in the definition of forests for their benefits.

Why are the Aarey protesters demanding Eco-sensitive zones (ESZ) tag for Aarey forests?

The purpose of declaring ESZs is to create some kind of “shock absorbers” to the protected areas by regulating and managing the activities around such areas. So the cutting of trees will be prohibited once it is declared an ESZ.

What are Eco-sensitive zones and how are they declared?

Eco-Sensitive Zones (ESZs) or Ecologically Fragile Areas (EFAs) are areas notified by the Ministry of Environment, Forests and Climate Change (MoEFCC), Government of India around Protected Areas, National Parks and Wildlife Sanctuaries.  

  • They act as a transition zone from areas of high protection to areas involving lesser protection. 
  • The Environment (Protection) Act, 1986 does not mention the word “Eco-Sensitive Zones”.
About Environment Protection Act, 1986

    • It was brought in the wake of Bhopal gas tragedy under Article 253 of the constitution.  
    • Article 253 empowers Parliament to make any law for the whole or any part of the territory of India for implementing treaties, international agreements and conventions. Parliamentary legislation is necessary for implementing the provisions of a treaty within the country.
  • EPA, 1986 implements the agenda of the UN conference on the human environment.
  • regulate environmental pollution, laying down procedures and standards for industrial waste, emissions, hazardous waste
  • However, Section 3(2)(v) of the Act, says that the Central Government can restrict areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards. 
  • Besides Rule 5(1) of the Environment (Protection) Rules, 1986 states that central government can prohibit or restrict the location of industries and carrying on certain operations or processes on the basis of considerations like the biological diversity of an area, maximum allowable limits of concentration of pollutants for an area, environmentally compatible land use, and proximity to protected areas. 
  • The above two clauses have been effectively used by the government to declare ESZs or EFAs. The same criteria have been used by the government to declare No Development Zones. 

Map of Aarey forest

SGNP means Sanjay Gandhi National Park

Aarey forest case in Mumbai

In 2018, the Supreme Court directed the Union Environment Ministry to declare 10 km area around 21 national parks and wildlife sanctuaries across the country as ‘eco-sensitive zones’.

The parks and sanctuaries are the 

  • Pobitora sanctuary in Assam
  • Hemis and Kishtewar national parks 
  • Changthang, Hokersar, Trikuta sanctuaries in Jammu and Kashmir; Jogimatti, Thimlapura and Yadahalli Chinkara sanctuaries in Karnataka; 
  • Deolgaon Rehekuri and Thane Creek Flamingo sanctuaries and the Malvan marine sanctuary in Maharashtra; 
  • Sironi National Park and Khongjaingamba Ching sanctuary in Manipur; 
  • Baghmara Pitcher Plant sanctuary in Meghalaya; Fakim and Puliebadze and Rangapahar sanctuaries in Nagaland; 
  • Dr Bhimrao Ambedkar bird sanctuary  
  • Pilibhit sanctuary in Uttar Pradesh and 
  • the Jorepokhri sanctuary in West Bengal.

Way forward:

  • Today our entire environmental governance is centred on clearances—environment clearance, forest clearance, wildlife clearance, clearances for ecologically-sensitive areas and clearance from pollution control boards. However, none of these clearances is working for the benefit of the environment; they are just paperwork with poor implementation on the ground.
  • The Draft National Forest Policy, 2018  should reform our laws, strengthening our institutions and streamlining the processes.
  • A proper official definition of forests will be beneficial for implementing different forest acts.

Also read: Aarey Forest Case

Mizoram Rejects Proposed Forest Act Amendment

deepak mehto
By deepak mehto October 8, 2019 15:37