Critique Of Afforestation Bill, 2008

The article aims to critique the Afforestation Bill, 2008 by drawing links between the Bill, on one hand and federalism, achievements and failures of ad hoc Compensatory Afforestation Fund, Green India Programme and the authority of the Supreme Court on the other hand.

Introduction

The Constitution endows a duty upon the State to protect and improve the environment and safeguard forests (Article 48A). Right to life and personal liberty (Article 21 of the Constitution) includes right to enjoy environment. Unless State carries out its duty, fundamental right of citizens will not be effected. Supreme Court in TN Godavarman Thirumulkpad v. Union of India, ruled that the running of sawmills and mining are non-forest activities and prior approval of the Central Government is necessary for the execution of such activities.

In the said case, Supreme Court further stated that a Compensatory Afforestation Fund be created in which all the monies received from user agencies towards compensatory afforestation, penal compensatory afforestation, Net Present Value of the diverted forest land or Catchment Area Treatment Plan shall be deposited.

As a result of the judgment, the Afforestation Bill came to be introduced in the Parliament.

A. Afforestation Bill and its Relation to Federalism

The Bill was referred to the Standing Committee on Science and Technology, Environment and Forest which in its 194^th report stated that the Union Government will play a key part in the allocation of funds collected from the States and this may lead to the likelihood of States suffering in the process. It also expressed concern that the Central Government may completely ignore the State Governments and provide funds directly to the Joint Forest Management Committees for the implementation of the afforestation programmes in the States. This would erode the concept of federalism.

The Bill was defeated in the Rajya Sabha on the ground that it undermined the concept of federalism as it sought to take away financial powers vested in the States. Moreover, a centralized forest fund management is contrary to the federal system as operative in India.

Prime Minister’s Office had asked the Ministry of Environment and Forests to inquire into the possibility of establishing institutions like the Compensatory Afforestation Management and Planning Authority at State level but MoEF stuck to its policy of establishing only one central fund.

Nevertheless, looking at the issue from a different perspective, it can be seen that the Bill is not in anyway undermining the concept of federalism as certain powers regarding ‘forests’ are still retained by the State Governments.

‘Forest’ (Entry 17-A) of the Concurrent List of the Seventh Schedule of the Constitution was transferred from List II to List III due to the significance of conservation of forests. In addition, the States were not making adequate efforts in this respect. The increasing rate of deforestation has to be checked. The term ‘Forests’ in entry 17A comprises ‘forest produce’ in its primary and natural state present in the forest. Parliament enacted the Forest (Conservation) Act, 1980, in order to check arbitrary diversion of forest land for non-forestry purposes. Through this Act, the Centre has occupied only one aspect of forests, legislative competence with regard to other aspects remains with the States. Moreover, the establishment of a Central Fund can also be supported by the fact that since a long time the funds have been wasting away, lying idle with officials in various States. In addition to this, Supreme Court, in its judgment in 2002 directed the establishment of a central body, which would have to recover all the money collected from States in the name of campa and transfer it to the bank account, operated by the new body. As the body was not set up, Supreme Court directed the establishment of an ad hoc body.

The latest development in this regard has been Environment Minister Jairam Ramesh’s assurance to the States that they will have dominance in compulsory afforestation efforts. Once the States set up their CAMPA authorities the entire money due to them will be transferred. Some States were apprehensive regarding Supreme Court’s order about centralization of funds but Ramesh’s assurance could go a long way to pacify their fears. This allays fears about the Bill encroaching upon the rights of States and creating a threat to the federal structure.

B. Ad hoc Compensatory Afforestation Fund: A success or failure?

The Bill sought to create a permanent Compensatory Afforestation Fund under the Public Account of India, to receive the money collected as compensation for the diverted forest land. Thereupon, money in the ad hoc fund (established by a Supreme Court order) shall be transferred to CAF. CAF shall be controlled by the Central government and managed by CAMPA. However, the aforementioned Standing Committee refused to accept that the extent and diversion of compensatory afforestation funds by states was so huge and alarming that it warranted a sweeping change in the mechanism for diversion of funds, which was in existence for 20 years.

The Committee felt that the establishment of CAMPA would prolong and delay the process of compensatory afforestation as the amount collected by the state governments would have to be pooled in a Central Fund and then devolved back to them as per specifications. It also felt that the MoEF did not make adequate efforts before 2002 to effectively handle the funds accumulated by state governments which remained unutilised. In addition, the problem of improper utilisation of funds and the issue of displacement of forest dwellers and tribals have not been addressed in the Bill.

While the fund-starved states, for instance, Himachal Pradesh are finding it hard to sustain their forestry programmes, the enormous amount of Rs. 6,000 crore deposited with CAMPA is lying unused with the Centre. The State Governments have taken up the matter with the Centre for the release of funds so that these could be used for the purpose they are meant. This supports Standing Committee’s belief regarding inadequate efforts made by MoEF to transfer funds to States.

Thus, it is submitted that the apprehensions of the Standing Committee and States regarding CAMPA are completely justified.

C. Green India Programme

The Committee stated that the main object of the Bill should be checking indiscriminate diversion of forest land while striking a fine balance with development activities, which was the main idea behind the Forest (Conservation) Act, 1980. Nevertheless, the Bill, in Section 4 (i), states that CAMPA funds will also be utilized for Green India programme. The Committee points out that there is a difference between compensatory afforestation and massive afforestation. It, therefore, recommended that the Green India Programme should be run separately by the MoEF. The fund collected for compensatory afforestation should be used exclusively for that particular purpose.

In the Supreme Court, Harish Salve as the amicus curae pointed out that the Bill went against the apex court’s orders that campa funds be used for compensatory afforestation. It is evident that while the stated objective is afforestation, in important ways, the Bill encroaches into territories that are clearly outside this objective, for instance, the Green India Programme. S.11(1)(i) of The Compensatory Afforestation Fund Bill, 2008 provides utilising financial resources, partly provided under the Fund and the remaining funds mobilised from the market, development partner associations, carbon credits, income from tree felling at ecologically appropriate intervals and to augment funds, and service debts. The market instruments will look at trade and profit interests embedded within the noble agenda of greening India. Any Bill that explicitly set out to do that would be opposed by conservationists, local communities, and many others.

D. Supreme Court’s Authority

The Hon’ble Supreme Court ruling (which led to the introduction of the Afforestation Bill in the Parliament) itself has been questioned by legal experts who state that this amounts to parallel governance. Rajiv Dhawan, senior Supreme Court advocate, said that the fund with the ad hoc campa is illegal as it was collected on the directions of Supreme Court, a custodian of law. Matters related to revenue and financial management lie with the government. Another senior advocate, Sanjay Parikh, said that the Supreme Court possesses the authority to ask the government to collect money for environmental protection but cannot decide how and where it will be spent. Conservationists however see a larger role for the Supreme Court. They state that Court’s intervention is necessary as the ministry is unable to protect forests.

Judiciary has played a key role in protection of environment but it has its own limitations. However, the executive has failed to exercise its duty efficiently which has led to judicial activism in the field of environment. Nevertheless, it can be observed that in the present, judges have become lawmakers and activists instead of remaining adjudicators. Judges presently examine the actions of the executive and the legislature. They often act on their behalf through Public Interest Litigation which has become an indispensable part of the judiciary. This casts a dubious light on the validity of Supreme Court’s order. However, former Chief Justice of India, Justice K.M.Ahmadi observed that judicial activism should be only a temporary phenomenon when the other organs fail to discharge their constitutional obligations.

In light of the above, the researcher believes that in spite of the judiciary encroaching upon the domain of the legislative and the executive wings of the State, the Supreme Court decision referring to the funds being spent only on compensatory afforestation is correct as it is in the interests of the public. Upendra Baxi, in his essays on judiciary and Indian legal system, observes that judiciary by judicial activism gives voice to the silent. By ruling in favour of the public, the judiciary is doing exactly that.

It is opined by the researcher that, the Bill is in the interests of the country but is beset with the aforementioned shortcomings. It is suggested that the Bill could be reintroduced with changes, for instance, the MoEF could consider the transfer of funds from the Centre to the States. An agreement could be reached with the conservationists on the issue of Green India programme. It is unlikely that there would be any opposition if the defects are rectified.