This article is written by Monika Saini, from MNLU, Mumbai.
Table of Contents
Introduction
We have a very narrow understanding of what constitutes urban forestry for example, what comes to your mind when you think of Urban Forestry? Trees on sidewalks of roads and highways, forests in the ravine, trees on lot lines? The term urban forestry is much wider and a very important concept. Urban Forestry is the sustained planning, planting, protection, maintenance, and care of trees, forests, green space and related resources in and around cities and communities for economic, environmental, social, and public health benefits for people.
It is high time we realised the importance of each and every tree when 14 out of 15 of the world’s most populated cities are located in India, with Kanpur on top of the list. The draft National Clean Air Programme in Para 7.1.8 tells us about the need for trees for air purification to control the daily worsening air pollution, which is one of the major concerns of every country globally.
Legal rights of nature are being recognised by many countries all across the globe. New Zealand became the 1st country to recognise a river as a legal entity when it recognised the rights of Whanganui River and said that it can sue and can be sued as a separate legal being. This status was given when the parliament of New Zealand passed the Te Awa Tupua [Whanganui River Claims Settlement] Bill 2017. Following the precedent, Uttarakhand High Court in Mohd Salim v State of Uttarakhand in 2017 declared Ganga and Yamuna as Juristic persons. (Later an SLP was filed in the Supreme Court of India. An interim stay was ordered by the SC and the judgement does not overrule the decision.) Not only rivers, in 2014 SC in the landmark judgement of Animal Welfare Board v A Nagaraja said that “animals have dignity, honour and their rights to privacy must be protected from unlawful assault”
Ecuador was the 1st country to constitutionally recognise the rights of nature. Its constitution says that “nature has the right to exist, persist, maintain and regenerate its vital life cycles, structures and its processes in evolution.” Recognition of rights of nature is very necessary as the threat to nature is increasing day by day. It is important to protect them as a human being in his obsession with better technology, physical infrastructure and development is threatening even the existence of these natural beings and as a result survival of living beings. Even legally protected areas like natural parks, sanctuaries are becoming victims of this development process.
Trees in Legal Domain
“Forests” forms a part of Concurrent list under Schedule 7 of the Constitution of India and hence both State and Central government has the power to make laws for it. The word “tree” per se is not even mentioned in the constitution. Article 51-A(g) of the Fundamental rights states that “it is the fundamental duty of every citizen to protect and preserve forests, lakes and rivers and to have compassion for every living being.” The phrase “living being” can be interpreted to include trees as well. But unfortunately, this line of interpretation is not followed.
Existing Laws For The Protection Of Trees
One of the most surprising fact here is that there is not even single central legislation for protection trees although we have central legislations for forests (Forest (Conservation) Act, 1980), air (The Air (Prevention and Control of Pollution) Act, 1981), water (The Water (Prevention and Control of Pollution) Act, 1974), environment (The Environment Protection Act, 1986 (the “Environment Act”), wildlife (The Wildlife Protection Act, 1972). Protection of trees is through state legislation. Every state has its own legislation to protect trees, almost similar to each.
Provisions Of State Laws
Some of the state laws for their protection is the Karnataka Preservation of Trees Act, 1976, the Delhi Preservation of Trees Act, 1994, The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976 and the Goa, Daman and Diu Preservation of Trees Act, 1984. It is interesting to note that even though they are framed by different states their provisions are almost the same as provision for tree authority, tree officer, etc. Every legislation gives exemplary powers to the tree officer in deciding whether the felling of trees should be allowed or not, he has the power to arrest even without a warrant. These powers rest with the tree officer completely. The tree preservation laws follow the general structure of the criminal law. Even after the provision for tree authority, it is the tree officer who decides whether the felling of trees should be allowed or not. So, the real authority lies with the tree officer.
International Treaties For The Protection & Rights Of Trees
It is again a surprising fact that there is not even a single international treaty dealing with the rights of trees. There are so many international treaties which deal with the rights of Forests. Some of them are:
- Climate Change Convention (1992)
- Convention on Biological Diversity (1992)
- Desertification Convention (1994)
- World Heritage Convention (1972)
Drawbacks Of Provisions Of Current Laws
At a time when we need to do something about the worsening climate conditions, trees can play a very important role. We need very strict laws to protect each and every tree and even more important is the stricter implementation of these laws. Currently, every state in India have their own laws to protect trees but still every day we see so many trees are removed for construction or some other reasons. Major concerns arise when we see incidents like New Delhi where the Union Cabinet approved the redevelopment of seven residential colonies to expand the existing government housing facilities. To complete this project over 13000 trees has to be shifted and planted at a different location. Problems in Mangrove and Aravalli are some more examples. But the question is even when we have laws for the protection of trees why these incidents happen in the 1st place. There are certain loopholes in the laws working today and some of them are discussed below to understand why these problems still exist and how can we save them.
Need For A Logical Reason Behind Giving Permission For Felling Of Trees
The current laws give exemplary powers to tree officer as he has the absolute power in deciding whether a feeling of trees should be allowed or not. If there are no restrictions on these powers of the tree officer it can become arbitrary as well. Restrictions on these powers are imposed by the courts in India. The Bombay High Court in Federation of Rainbow Warriors v State of Goa considered the role of tree officer according to the power given to him under the Goa, Daman and Diu Tree Preservation Act, 1984. The court observed that “During the colonial era, trees were considered primarily as a source of timber. As the concern regarding the environmental degradation grew, the pivotal role trees play in maintaining a healthy ecosystem was recognised and various measures were adopted to protect and safeguard the tree cover by regulating the cutting of the tree.” This observation by the court tells us the importance of concrete laws to protect trees from becoming the victims of our continuous greed for progress & development. The court said that it is the duty of the tree officer to pass a reasoned order why he is allowing or disallowing the felling of trees as this brings transparency in his actions because when the decision involves such a large number of trees it is necessary that he gives reasons as to what is the rationale behind allowing or not allowing these actions.
While making these decisions he should have a look at the number, kinds of trees and the justification why felling of such a large number of trees should be allowed. A similar decision was taken by Karnataka High Court in Paul D’Silva and Others v State of Karnataka and others in which the court again reiterated that it is the duty of tree officers to make a reasoned decision. The court observed that “The Tree Officer is required to apply his mind and consider the question whether the permission sought to fell the trees must be granted is with reference to the nature of the trees, location of the trees and other relevant factors with reference to the trees, and it is not with reference to the status of the person who makes an application. The tree officer has to keep in mind the public interest and the consequences that are likely to flow on the environment or the preservation of the trees in an area while granting such permission.” Even after a plethora of judgements which says that it is the duty of the authorities to give reasons for that decisions but the authorities fail to give reasons why they think felling of such a large number of trees should be allowed. They don’t give a reason as to why the cost of cutting these trees is less than the advantage of the development process. In this case, it becomes arbitrary on the side of the tree officer whether such felling of trees should be allowed or not.
Influence Of The Senior Officer On Tree Officer
The actions of the tree officer can be put as “act under dictation.” This is to indicate that although the law gives tree officer the exclusive power to decide whether the felling of trees should be allowed or not but the reality is that he acts according to the will of higher authorities. The higher authority may be the principal chief conservator, or the secretary, or the minister. It is a fact that most of the development projects like the making of roads, widening of roads, airports, and railway stations are mostly decided by the government and later the contract is given to other government or private parties. It is very difficult in this situation to think that a tree officer most often a junior officer of the level of deputy conservator or conservator of forest can question the policy prepared by the government. In this case, the tree officer usually doesn’t have much power to say no to such proposals.
Doctrine Of Fait Accompli
Fait Accompli means “accomplished fact”; something that has already happened and is thus unlikely to be reversed; a done deal. Environmental laws in India require prior permission of competent authorities before work on a project starts. (For examples, The Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 require “consent to operate” as well as “consent to establish.” Similarly, the Environment (Protection) Act, 1986 requires prior environmental clearance.) This law is also applicable on laws governing trees.
However, the Delhi High Court in Bindu Kapurea v Government of NCT of Delhi observed that “What came to light, was that, more often than not, the difficulties which arose in the present matter, could have been avoided had the relevant authorities been brought on board at the appropriate stage. Experience has shown that governmental authorities, which are tasked with executing infrastructural projects, approach the forest department under the Trees Act only after tenders have been issued and plans have been approved.” This tells us that the tree officer doesn’t actually has the power to say no to a proposals. Such projects reach for approval after project investments and contracts materialise and third-party rights get created. The option before the tree officer then remains to only negotiate the details of compensatory measures, rather than decide whether the trees should be felled or not.
Current issues
There are so many issues prevailing in India for lack of proper protection to trees. The researcher will have a look at 3 major issues briefly like the New Delhi incident where a large number of tree will be cut for the redevelopment of government housing, problems about Mangrove and Aravalli in India.
Delhi Tree Felling
In July 2016, the union cabinet approved a redevelopment program to expand government housing facilities and create commercial infrastructure in the national Capital. For completion of this project around 14000 trees have to be shifted to a new land or cut down. 3 colonies were to be developed by NBCC (National Buildings Construction Corporation) those 3 colonies are Sarojini Nagar, Netaji Nagar and Nauroji Nagar. Rest 4 colonies by Central Public Works Department. The estimated cost of the project (for 5 years) is 32,835 crores. An MoU was signed by the Ministry of Urban Development and the National Buildings Construction Corporation. For progress in this project, several permissions are required including permission from Delhi’s Forest Department. There are 19,978 trees at 7 different location, maximum being in Sarojini Nagar i.e. 13,128 trees. Of these, 16,573 trees were proposed to be cut down, with the rest to stay on-site or to be “relocated”. For felling of such a large number of trees the permission by Delhi forest department. In 2017, the state environment and forests secretary, on the direction of the lieutenant governor of Delhi granted permission for felling of trees in Nauroji Nagar. Similarly, the permission for felling of trees in Netaji Nagar was approved. The lieutenant governor got this power from Business of the Government of National Capital Territory of Delhi Rules, 1993.
According to the Delhi Preservation of Trees Act, 1994, (1994 Act), the tree officer has the power to decide whether permission for felling of trees should be granted or not. However, felling of trees in Nauroji Nagar and Netaji Nagar were allowed citing Section 29 of 1994 act which allows the “Government” of the National Capital Territory of Delhi to exempt “any area or any species of trees from all or any of the provisions of this Act… in the public interest”. This means there was no enquiry by the tree officer before granting the permission. In 2016, NGT in a landmark decision laid down 3 conditions to be fulfilled:
- The consent can be given only with that condition that 10 times number the trees cut will be planted again.
- The plantation should be in the same area where trees were removed.
- The plantation should be done as a “condition precedent” i.e. the plantation process should happen before felling of trees.
But the problem is are these conditions fulfilled before felling of trees. The answer is no. Tree felling is completed in Nauroji Nagar and is underway in Netaji Nagar yet not even a single plantation is done in the area. In the case of Sarojini Nagar felling has begun, no permission has been granted so far.
Environment clearance from central environment ministry was also required by 4 of the 7 colonies as they were spread over 3,00,000 sq. metres. Every colony got the Environment clearance with the condition that the orders passed by the NGT in which the necessary conditions were laid down, should be complied. This makes tree felling without compensatory plantations a violation of the conditions of the environment clearance.
Mangroves Forests
Mangrove, also called halophytes, are trees which can tolerate salt and they are adapted to harsh coastal conditions. India has 4921 km2 of mangrove cover which is about 3.3% of world’s mangrove cover. Mangrove are one of the most threatened tropical ecosystems of the world. Data reveals that 35% of them are already destroyed. According to United Nations Environment Programme, a quarter of mangrove forests are destructed by shrimp farming. Mangrove helps to stop the effect of tsunami and floods. Naluvedapathy, a village in Tamil Nadu planted 80,244 saplings to enter the Guinness Book of World Records. There are threats to mangrove forests by clearing (they are cleared to make space for agricultural land), overharvesting, change in salinity level of water (dams are constructed at different places because of this less water reaches the mangrove), overfishing, destruction of coral reefs and climate change (they are extremely sensitive to rising sea level caused by global warming). Two of Mumbai region’s mangroves (Airoli and Vikhroli wetlands) are included in 12 unique mangrove forests in India by The Mangrove Society of India. Maharashtra is the only state in India which dedicate a special cell to protect its mangrove cover. These are under threat from development projects.
Aravalli Hills
These are a range of mountains running from Delhi through Haryana, Rajasthan and ending in Gujarat. It is the oldest mountain range in India. The Aravalli hills have a large number of resources like they are rich in minerals. Mining of copper and other metals are very common in these hills. They faced a large number of problems like illegal mining, construction, depleting groundwater levels, leopards lynching, resource overexploitation and land grabbing. To protect these hills the Supreme Court of India in 2002 banned mining in Haryana Aravallis and a complete ban on mining in Aravalli was put in 2009. It can be one of the reasons for leopard survival. A question which can arise in anyone’s mind can be does the ban actually help in protecting the Aravalli or the flora or fauna in the Aravalli? Sadly, the answer is no. The SC gave a warning to the Rajasthan & Haryana Government if they fail to see that people are compiling with the ban and there is no mining in these hills. It is high time that the government realised that if they don’t compile with the ban now it will be very difficult for us to save our natural gifts.
Conclusion
It is a very recent thing that judiciary, legislators, activists and people are realising that even natural beings are entitled to rights. NGT which is made specifically to deal with issues relating to nature held that it can adjudicate matters related to trees outside forests as well. We have laws to protect trees but we need to make them more practical and realistic. We have to realise that a junior level officer can’t in a country like India deny permission to a proposal proposed by the government. He doesn’t have much choice in deciding whether the feeling of trees should be allowed or not or in some cases the government escapes the process by using some exceptions. Our judiciary is also working to save these natural gifts which we got whether it is a ban on mining making the government realise that it can’t run away from its responsibilities. This is high time we realised that we can’t survive without these resources whether it is a river, air, forests or trees.
References
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