Updated: Aug 2, 2020
This article has been authored by Amisha Sharma, a fourth year student at Amity Law School, Noida.
The year 2019 saw a leap in India’s political setting with major amendments being passed by the legislature, such as, the Constitutional Amendment Bill row, RTI Amendment Bill, abrogation of Article 370 of the Constitution among such similar legislations. Amidst all of this, the Maharashtra Government’s decision to build a Metro Car Shed in the Aarey Colony, a sub-urban area near Mumbai, faced a lot of criticism and demonstration by of the residents of Mumbai, comprising largely of student protestors. Herein, the building of the car shed was to be done as a part of the development process sought by the Mumbai Metro Rail Corporation (MMRC) from the Tree Authority and approval was granted. The move faced attacks by various environmentalists and driven-citizens as Aarey is considered the green lungs of the Mumbai city. After various protests, unusual justification by the government and dismissal of petitions by the Bombay High Court to classify Aarey under the category of ‘forest’, the Apex Court took suo moto cognizance and directed the government to stop axing trees. However, the answer to the question of Aarey ‘to be or to not be a forest’ is still pending.
The Loophole in Definition ‘Forest’
The main reason behind the Aarey prowl has to be the ambiguity that persists with the term ‘forest’ and its definition that is prevalent in the Indian Forest Act, 1927 and the Forest (Conservation) Act, 1980. For the area of Aarey (developed as a ‘milk colony’) to be classified as a ‘forest’, it had to fit into the definition of ‘forest’ which actually remains undetermined and undefined by any statute constituting Environmental Laws in India till date.
To understand this through a legal framework, it becomes pertinent to mention the case of T.N. Godavarman Thirumalpad v. Union of India (1997) wherein, the definition of forest was recognised by the Supreme Court of India while also defining the essence of the Forest (Conservation) Act, 1980. The Court ruled that there are three categories that classify a piece of land as ‘forest’ under the Indian Forest Act, 1927, which are:
Reserved Forest: Forests which are under supervision of the State Government and no public entry in what so manner is allowed,
Protected Forest: Forests which are still looked after by the Government but collection of timber/firewood, cattle grazing is allowed and
Unreserved Forest: ‘Unclassified forests’ where cutting of trees is allowed.
The Court further remarked that the term ‘forest’ should be interpreted according to its dictionary meaning. Keeping the debate of ‘what forest actually means in accord with the dictionary meaning’, we shall elevate towards the ratio decendi of the case, wherein, the Court dictated that an authority shall take effective steps and implement orders made against deforestation. The next significant point to be noted is regarding the essence of the Forest (Conservation) Act, 1980 which is ‘to check deforestation which ultimately results in ecological imbalance, and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof.’
In view of the authoritative orders in this case, the State Government is the sole authority to determine/undermine a land area as forest. However, to move beyond this, the Government, apart from holding a piece of land as forest is vested with a bigger responsibility and that is, to ‘conserve’, ‘protect’ and take ‘measures’ to ensure that deforestation is not furthered, in which the Maharashtra Government clearly failed in case of Aarey. To look upon the claims of the Government, it is to be stated that Aarey has not been classified as a ‘reserved’ or ‘protected’ area to fit into the definition in accordance with the Act.
To understand whether Aarey can be termed as a ‘forest’, an analogy with dictionary meanings (as directed by the Court) can be considered. The Webster Dictionary defines forest as, ‘ a dense growth of trees and under bush covering a larger tract of land.’ Biodiversity, as stated in the Convention on Biodiversity in its Article 2, means the variability of living organisms from all sources including, inter alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are a part, this includes diversity within species, between species and of ecosystem.
When the above terms are combined, a product called ‘forest biodiversity’ is obtained, which ‘refers to all forms found within the forested areas and the ecological roles they perform… and also includes the ecosystems, landscapes, species, populations and genetics.’ This can lead to two derivatives. First, a network, and second, flora and fauna.[i] Aarey covers an area comprising of two major rivers of Mumbai, that are, Mithi and Oshiwara, which is a dominant ecosystem comprising of various habitats and species such as seasonal plants, marshes, rocky outcrops and also, animals like leopards. The symbiotic relationship that exists between the leopards on prowl and tribal of Aarey has been quite famous in news and reports. It is to state, without doubt, that the presence of a huge area of flora and fauna, with a dense population of riverine vegetation and minimal human intervention in the form of primitive group living in the area of Aarey since a long time fulfils the purpose of categorizing Aarey Milk Colony as a ‘forest.’
Departing from this, there is also a demand for declaring Aarey as a ‘Special Economic Zone (SEZ)’, mention of which is missing in the Environment (Protection) Act, 1957 (EPA) and is recognized only when Ministry of Environment, Forest and Climate Change notifies such area. But, Section 3(2) of the EPA states that the Central Government can restrict/allow operations of industries in the name of safeguards. And to read the EPA with Rule 5(1) of the Environment (Protection) Rules, 1986, it is solely in the hands of the Government to prohibit the operation of industries already operating in a sensitive area on the consideration of preservation of diversity. These two provisions are the foundations of declaring/un-declaring an area as a SEZ.
When the legislations have to be looked upon, it is a prima facie evidence that the power to protect/degrade the environment lies with the ministries- State or Central. To look further as to what the T.N. Godavarman judgement had to offer, it can be easily stated that although the Court tried to take measures to curb the environmental degradation, but it ended up offering more ambiguity as to what ‘forest’ actually means because it specified no dictionary which should be consulted for the definition of forest. Every State has different classification of considering a piece of land as ‘forest’ which contributes more to the chaos. The MoEF has also tried to settle this debate by stating that a subject like ‘forest’ cannot be curbed down into a two or three paged definition but has to be evaluated comprehensively.
The contention of a comprehensive definition of forest is undoubtedly acceptable, but until such definition is being carved out there seems a dire need of a simple provision which restricts environmental degradation in the name of development. The Right to a Healthy Environment is a full-fledged fundamental right which includes right to enjoyment of pollution free water and air under Article 21 of the Constitution of India. (Subhash Kumar v. Union of India, 1991). The Global Assessment Report, 2019 called for transformative changes to restore and protect nature. Even when industrialisation hit India, it came with a promise of replacement and redistribution.
Aarey forest is a concrete jungle.[ii] Destroying it would mean destroying the only prudent source which can control pollution in Mumbai when it is already a ‘No-Development Zone’ in the form of a milk colony. Development is essential. Development is inevitable. But with a step forward, a sustainable development is desired. An official definition is required so that there exists plausible ways to implement forest acts, otherwise the purpose of existence of such legislations becomes void. The clearances should work for the good of the environment in the parameters of conserving it, re-building it for generations to come and not against it. At last, there should be a way forward and not a way backward.
[i] Kapildeep Agrawal, ‘Development, Displacement and Degradation: A Case Study of Aarey Forest in Mumbai’, TISS Mumbai (Dissertation for the Degree of Masters of Laws in Access to Justice). [ii] Ibid.