SC’s forest conservation order exposes years of official neglect

The Supreme Court, on March 4, 2025, expressed anguish over the delay by states in identifying forests as per the 1996 TN Godavarman judgement. It directed the states to set up expert committees to identify forests within six months, failing which the respective chief secretaries would be held responsible. The matter came up before the court when it was hearing a slew of writ petitions challenging the Forest Conservation Amendment Act, 2023.

To understand the matter, one has to go into the history of forest lands being diverted for non-forest purposes. From 1952 to 1980, an average of 1.5 lakh hectares of notified forest area was being diverted annually by the government for various purposes. The Forest Conservation Act, 1980 (FCA) was enacted to stop this and the proof of its success is that the rate of forest land diversion during the next 40 years was an average of less than 25,000 hectares annually.

Normally, this should have been hailed. But, unfortunately, forest lands are viewed as the cheapest and easiest to divert — a kind of surplus land pool. In 1996, the SC in the landmark TN Godavarman vs Union of India and Others directed that the FCA would also be applicable to all areas that conform to the 'dictionary' meaning of forest. The Godavarman judgement essentially expanded and created a separate class of forests, termed 'deemed forests' — ie areas not notified as forests but which had all the trappings of a forest. These were areas which were de jure not a forest but de facto were a forest. The SC also directed that such 'deemed forests' should be identified by an expert committee and submitted before the court.

In its judgment of 2011 in the Lafarge case, the court reiterated its directions to all states to complete the above exercise and identify the areas which are forests, irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land. Most states have not done the exercise till now, leading to the latest reprimand by the court.

The real issue here is what are 'notified forests' and what are 'deemed forests'. Lands declared under various forest Acts are 'notified forests'. They were roughly 70 million ha in 1950, out of which nearly 6 million ha have since been diverted. That is, roughly 10 per cent of the forest cover is gone.

But there are also large areas owned by the government which are natural forests/grasslands but were never notified under any forest Act They include a large part of the Himalayas, the Aravallis and many areas belonging to princely states/feudal landlords. Their protection is important to eco-hydrological security. That is why the SC gave the concept of 'forests as per the dictionary meaning.'

The present litigation is the result of the government not identifying 'deemed forest' areas for decades but, instead, amending the Forest Conservation Act itself in 2023. Essentially, the Forest Conservation Amendment Act, 2023 states that only areas recorded as forest in government records shall be covered by the FCA. It removes the category of deemed forests entirely and further lays down that the FCA shall not apply to such lands, which have been changed from forest use to use for non-forest purpose on or before December 12, 1996, the day of the Godavarman judgement.

Though the objectives listed in the amendment and the statements on the floor of Parliament all proclaim the intent of the government to protect and conserve forests and disclaim any intent to limit the application of the Godavarman judgement, the facts of the matter do not support it.

The drafting of the amendment is such that it limits the application of the FCA to only 'notified forests', completely nullifying the Godavarman judgement. It would, in reality, negate nearly 30 years of jurisprudence created by the apex court following the Godavarman judgement and render thousands of judgements infructuous. It would open a Pandora's box, resulting in the filing of thousands of appeals.

In view of the contrary claims of the government and concerned citizens, it is important to test the application of the amended FCA in the field. Let us take the case of Mangar Bani in Faridabad, Haryana, which is one of the few ancient Aravalli forests left in the state.

The entire 4,000 acres of the thickly forested land is owned by real estate companies and some rich people. Only about half an acre is community/government owned. The Bani (sacred grove) around the temple of Gudariya Baba, which is held sacred by the local villagers, is recorded in revenue records as 'gair mumkin pahar' (hill slope) and 'bhur' (sandy foothill). Around 1,500 acres is closed under various forest Acts and the remaining 2,500 acres is not recorded as forest in any official record.

The present value of this land would, conservatively, be Rs 25,000 crore. And, this is only one of the nearly 500 villages in the Haryana Aravallis. As per information available, two development licences already exist for 388 acres and 400 acres, respectively, in the Bani area. They have been held in abeyance only due to the deemed forest status of the land. With the withdrawal of this protection due to the 2023 Amendment, the Bani would give way to malls and homes for the rich. This exercise would be duplicated ad nauseum all over the country.

It cannot be denied that some diversion of forest lands is necessary for genuine development and strategic needs of the country. However, one cannot throw the baby out with the bathwater.

Though the SC has, on March 4, directed the states to set up expert committees to identify the deemed forest areas, legally there is no burden on the states, as once implemented, the Forest Conservation Amendment Act, 2023 clearly states that it shall only be applicable to recorded forests and, therefore, there will be nothing left to identify. Forests, as per government records, are already identified and notified under various forest Acts, with applicable laws and rules governing their management.

There is a disconnect between the intent of the Amendment and its application in the field. It's almost as if the drafters did not fully understand its implications.

At stake are important watersheds vital to the water security of our country and valuable biodiversity, which once lost can never be regained.

The government, being in loco parentis over our natural resources, must exercise its power with sagacity and wisdom. The words of the Shanti Mantra from the Upanishads — 'Vanaspatheye Shanti' — should guide us to maintain a balance with nature.