'Will Hold Chief Secretaries Personally Liable' : Supreme Court Warns States/UTs Which Haven't Formed Expert Committees To Identify Forest Areas

The Supreme Court on Tuesday (March 4) came down heavily on States/Union Territories for not complying with its earlier directions to constitute expert committees for the identification of forest areas.

If the non-compliant States fail to constitute the Expert Committees within one month and carry out the exercise in terms of Rule 16(1) of Van (Sanrakshan Evam Samvardhan) Rules, 2023 within six months, the Chief Secretaries and Administrators of the States/UTs shall be held personally accountable, the Court said.

A bench of Justices BR Gavai and AG Masih passed the order, directing time-bound compliance, in the following terms,

"It is the contention of petitioners that Union/States would be using the land which infact is forest, but not recorded as forest, for compensatory afforestation...It is submitted that this would reduce forest coverage...On 3 February, an apprehension was expressed that states/Union would use forest lands for linear projects etc. without doing compensatory afforestation, thereby leading to reduction of forest areas...

It is necessary that all state governments make efforts to complete the exercise within stipulated period. While doing so, the state governments and UTs would also be bound to follow guidelines of this court contained in order dt...we therefore direct all states/UTs in which expert committees have not been constituted, to constitute such committees within 1 month from today. The said committees shall complete the required exercise alongwith directions of this court within 6 months and submit a report to Union. Union shall consolidate the position and place it before this Court. The Registrar (Judicial) shall communicate this order to Chief Secretaries of all states in country and administrators of all UTs.

We clarify that if the directions are not complied in letter and spirit, we will personally hold Chief Secretaries/Administrators responsible for the lapse and consider taking appropriate steps."

The order was passed after the Court noted that several states/UTs had not appointed Expert Committees, and that most had not completed the work required to be undertaken in terms of Rule 16(1), in terms of the Court's earlier directions.

For context, the said provision requires all states/UTs to prepare a consolidated record of lands including forest-like areas identified by expert committees. The Court was of the view that once the exercise, as required under Rule 16(1), is completed, it would lead to resolution of many issues.

Briefly put, the Court was dealing with a batch of writ petitions challenging the 2023 amendments to the Forest Conservation Act (FCA). In February, 2024, an interim order was passed in the matter directing that States/UTs must act as per the definition of "forest" laid down in the 1996 judgment in TN Godavarman Thirumalpad v. Union of India while the process of identifying land recorded as forests in Government records is going on as per the 2023 amendment to FCA.

As per the order passed in February last year, the Court further directed that the Union of India shall, within a period of 2 weeks, require all States/UTs to provide it a comprehensive record of land identified as "forests" by the expert committees constituted by the States/UTs as per the TN Godavarman judgment. All states and UTs were to comply with the directions by forwarding the reports of the expert committees by March 31, 2024. It was further directed that the records shall be maintained by MoEF, digitized and made available on the official website by April 15, 2024.

In February this year, the Court restrained the Union and the States from taking any steps that would lead to reduction in "forest land" across the country, unless provision is made by them for compensatory land. At the time, Justice Gavai orally told Additional Solicitor General Aishwarya Bhati, "You will not permit anything which leads to reduction of forest area. And if you are using any forest area for some linear project, then you have to provide that much of land for compensatory afforestation."

Today, Senior Advocate Prashanto Chandra Sen, for the petitioners (including retired IFS officials), urged that while the matter remains pending, forest land is being used by authorities for compensatory afforestation, which in turn is decreasing forest land area. He further highlighted a need for proper evaluation of the total forest area in the country as per the directions in the 1996 TN Godavarman judgment and the guidelines in Lafarge (2011) judgment (regarding compliance with the exercise directed to be carried out by States/UTs, MoEFCC and State Expert Committees in the 1996 TN Godavarman judgment).

Sen also argued that it is crucial to identify 'unclassed forests' (which are forests other than those notified as forests under the Indian Forest Act). "Once these unclassed forests are identified, there would be complete clarity of the total forest area and thereafter, decisions for diversion of non-forest land can be taken efficiently by the Union", he said.

Senior Advocate Gopal Sankaranarayanan (for an applicant who has challenged MoEF's Rules), on the other hand, contended that the concept of compensatory afforestation being made applicable to jungles and "forests" is a serious question that needs to be considered, because when land from the middle of forests (which are contiguous and homogenous) is diverted, the entire forest is effectively destroyed.

Referring to a report given in another matter (involving the Association for Democratic Reforms), Gopal S submitted that very serious doubts were cast by a Committee on the applicability of the principle of compensatory afforestation to forests. "Entire jungles being chopped has severe impact on environment and climate change. Until identification process is completed, let them not touch forests" he urged. The senior counsel further highlighted that states have not completed the identification exercise since 27 yrs and in this backdrop, the diversion of forests is creating an irreversible problem.

While another counsel argued for the rights of Adivasis, and how the impugned amendments was affecting rights of Scheduled Tribes, Advocate Prashant Bhushan informed that the identification exercise was ordered to be done in 1996 and the delay in its conclusion has resulted in diversion of substantial forest land and become critical.

When Justice Gavai referred to an issue of India Today, to say that as per a cited report, the forest cover in India has infact increased, the petitioners' side pointed out that the report was based on an expansive definition of forests which included even bamboo plantations, mango orchards, etc. "India is No.2 in the world when it comes to depletion of forest cover", Gopal S asserted.

On behalf of the Union, ASG Bhati submitted that in the petitions before the Court, there are challenges to regimes which were pre-existing ie - compensatory afforestation, exceptional carving out for projects of national importance or central PSUs, ex-post facto clearance, etc. "Problem is 'recorded forest' has not kept pace in all states with 1996 directions", she said.

The ASG further informed that 33 states/UTs have complied with the Court's 1996 directions. Referring to 4 states/UTs, that is West Bengal, Ladakh, J&K and Lakshadweep, she said that these 4 states/UTs had not even constituted the expert committees as required. In the context of J&K and Ladakh, she however added that there was some issue given the reorganization exercise; as such, the Union later impressed upon them and now the states are carrying out the exercise.

Insofar as compliance with the exercise directed in terms of Rule 16, the ASG informed that only states of Sikkim, Gujarat and Orissa had complied. She suggested the Court to direct time-bound compliance with the identification exercise, as it would be in aid of forest policy of India, directions of the Court and the mandate of the statute. "An interim order (in February, 2025) has already been passed on compensatory afforestation which says that no steps should be taken which would lead to reduction of forest land", the ASG added. On remaining issues, she sought time to file an issue-wise compilation.

Subsequently, on the petitioners' contention that "unrecorded"/"unidentified" forest land is being used by authorities for compensatory afforestation, which in turn is decreasing forest land area, Justice Gavai said that the same was merely an apprehension and conveyed the Court's difficulty in passing an order based on an assumption.

Ultimately, the bench passed the order directing states/UTs to comply with earlier directions in the stipulated period.

Case Title: ASHOK KUMAR SHARMA, INDIAN FOREST SERVICE (RETD) AND ORS. Versus UNION OF INDIA AND ANR., W.P.(C) No. 1164/2023

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