Law of the land

The J&K governments order reversing the diversion of forest land to the Shrine Board is justified on environmental grounds.

in New Delhi

THE precipitating factor in the ongoing turmoil in Jammu and Kashmir is shrouded in a legal mystery involving the diversion of 39.88 hectares of forest land to the Shri Amarnath Ji Shrine Board (SASB) for raising prefabricated structures for camping pilgrims. In the wake of protests against it in the Kashmir Valley, the State Forest Department, on July 1, cancelled its order of May 26, 2008, according sanction to the diversion, without stating any reasons. An objective review of the May 26 order will help understand that the reversal is justified on environmental grounds. Let us examine how the SASB first obtained the clearance from the State government.

The May 26 order followed a series of steps taken in response to the receipt of a project report from the Chief Executive Officer, SASB, requesting the transfer of land for seven halting places on the Baltal and Chandanwari routes to the shrine. The government got this report on October 15, 2004.

The governments press note on June 25 reveals that the Forest Department had accorded a similar sanction for diversion on March 29, 2005, only to be rescinded in May that year because, as the government claimed, the States Forest (Conservation) Act had been violated, and the proposal was not considered or placed before the Forest Advisory Committee and the Cabinet for orders, and unnecessary haste was shown to allow the SASB to utilise the diverted land. It also revealed that the Minister of Forests was not advised properly and that there was no compelling reason for the Forest Department to permit the SASB in 2005 to use the forest land for non-forestry purposes.

The Cabinet then came under pressure from Governor S.K. Sinha to reconsider its decision to withdraw the March 2005 order. As Sinha also happened to be ex-officio Chairman of the SASB, there was a clear conflict of interests when he, on May 25, 2005, exercised his powers under the Jammu and Kashmir Constitution to send a message to the Council of Ministers to review the decision. The government reviewed its decision accordingly after seeking clarifications from the SASB over the next two years.

The Principal Chief Conservator of Forests (PCCF) of Jammu and Kashmir, after a joint survey carried out with the SASB, recommended diversion of 39.88 hectares of forest land for non-forestry purposes in 2007. The matter was placed before the State Forest Advisory Committee (FAC), which is headed by the Chief Secretary and includes other senior State officials. This committee met on July 12, 2007. Since the proposed area was adjacent to the Thajwas sanctuary, the FAC sought the opinion of the Chief Wildlife Warden, who cleared the diversion. Following this, the FAC accorded its approval.

However, the government was rightly concerned whether it was still necessary to obtain the final approval of the Supreme Court, in view of the courts interim orders on April 27, 2007, in T.N. Godavarman vs Union of India. In this case, the Supreme Court directed that whatever the FAC (constituted by the Union Ministry of Environment and Forests) decides, all projects must be referred to the Centrally Empowered Committee (CEC) constituted by the Supreme Court, which would then place it before the court for final approval.

On June 4, 2007, the Forest Department sought the State Law Departments opinion on whether the Supreme Court order was applicable to Jammu and Kashmir. The Law Department opined that the order was not applicable to the State as forest continues to be under the State List.

Forest figures under the Concurrent List as Entry 17A in the Seventh Schedule to the Constitution of India; however, in view of Article 370 granting special status to Jammu and Kashmir, Entry 17 has been excluded, along with a few other entries, from being applicable to the State. Parliament can legislate for Jammu and Kashmir with reference to the entries in the Union List and the Concurrent List (except those excluded) and the rest of the legislative power vests in the State legislature.

Meanwhile, the PCCF approached the CEC seeking clarification whether the Supreme Courts April 27, 2007, order would apply to the State. The CEC opined that the non-forest use of the forest land in the State was governed by the provisions of the Jammu and Kashmir Forest (Conservation) Act, 1997, and not by the Forest Conservation Act, 1980, enacted by Parliament. Therefore, the CEC found that the Supreme Courts April 27, 2007, order was not applicable to the proposals examined by the State-level FAC, constituted under the Jammu and Kashmir Forest (Conservation) Act.

The Law Department found its position vindicated by the CECs opinion but added that it would be safe to bring the legal position to the notice of the Supreme Court and seek its clarification. But this was not done.

Subsequently, the matter was referred to the States Advocate General (AG) for his advice. The AG, too, concurred with the view of the CEC. Deputy Chief Minister Muzaffer Beigh, who was asked to resolve the two different views of the Law Department and the AG, chose to ignore the suggestion of the Law Department to obtain the clarification of the Supreme Court. The Cabinet thus went ahead with the diversion of forest land to the SASB.

Frontlines investigation shows that the Law Departments suggestion was not simply by way of abundant caution, as the Deputy Chief Minister chose to put in his opinion given to the government. The suggestion is consistent with incontrovertible facts.

First, although the FCA, 1980, clearly excluded Jammu and Kashmir from its scope, the Supreme Courts order in the T.N. Godavarman case meant that the order was applicable to the State. The Supreme Court said in this order on December 12, 1996: Any felling of trees in forest or otherwise or any clearance of land for execution of projects shall be in strict compliance with the Jammu & Kashmir Forest Conservation Act, 1990, and any other laws applying thereto. Observers say that had the Supreme Court wanted Jammu and Kashmir to be outside the scope of its orders in this case, then it would not have added a specific paragraph for the State.

Since 1996, the Supreme Court has assumed the role of the principal decision-maker as far as issues relating to forests and wildlife are concerned. This has been owing to the Supreme Courts intervention through the following cases:

1. The T. N. Godavarman Thirumulpad vs Union of India and ors (W.P. No. 202 of 1995) concerning the implementation of the Forest Conservation Act, 1980.

2. The Centre for Environmental Law (CEL), WWF vs Union of India and ors (W.P. No. 337 of 1995) concerning the issue of settlement of rights in national parks and sanctuaries and other issues under the Wildlife (Protection) Act, 1972.

These cases are being heard for the past nine years and are a part of what is termed as continuing mandamus, whereby the courts, rather than passing final judgments, keep on passing orders and directions with a view to monitoring the functioning of the executive. They have led to fundamental changes in the pattern of forest governance and decision-making. Some examples include:

a) By virtue of the Supreme Courts order dated 13.11.2000 in the CEL WWF case (W.P. No. 337 of 1995), no forest, national park or sanctuary can be de-reserved without the approval of the Supreme Court.

b) No non-forest activity is permitted in any national park or sanctuary even if prior approval under the Forest (Conservation) Act, 1980, has been obtained.

c) The interim order dated 14.2.2000 prohibited the removal of any dead or decaying trees, grasses, driftwood, etc. from any area comprising a national park or a sanctuary notified under Section 18 or 35 of the Wildlife (Protection) Act, 1972.

It was also directed that if any order to the contrary was passed by any State government or other authorities, the operation of the same shall be stayed. In order to advise the Supreme Court on the various issues concerning forest and wildlife conservation, the CEC was set up under Section 3 (3) of the Environment (Protection) Act, 1986 to adjudicate on forest and wildlife-related issues.

Second, the Supreme Courts extraordinary intervention in forest-related issues stems from the perception that the Central and State governments cannot be trusted in the matter of forest protection, as they are amenable to unjustified local pressures. The manner in which the Jammu and Kashmir government has claimed immunity from the Supreme Courts monitoring in the Godavarman case through a specious interpretation of Article 370 only confirms this perception.

Third, in the case of construction of the Mughal Road project, which will connect the valley with Poonch and Rajouri districts, the State government did not take the plea of immunity from the application of Central laws and the Supreme Courts monitoring in the Godavarman case. The Biodiversity Conservation Trust of India, through its trustee, Faiyaz A, Khudsar, filed an application before the CEC in the Godavarman case, alleging that over 66.81 hectares of land of the Hirpora Wildlife Sanctuary was to be diverted for the purpose of the Mughal Road project.

There is an old, existing 30-km Mughal Road, which crosses the sanctuary from west to east, starting at Poonch and ending at Hirpora village. This road cuts the sanctuary into two almost equal parts with distinct habitats. The project seeks to restore this old road.

The sanctuary harbours some of the last populations of the highly endangered Pir Panjal markhor. Markhor is the largest wild goat in the world. It is included in Schedule I of the Jammu and Kashmir Wildlife (Protection) Act, 1978, as well as in the Wildlife (Protection) Act, 1972, and is classified as endangered as per the IUCN Red List (2000). The markhor has a limited geographical distribution in the moist to semi-arid mountain tracts of Pakistan, India, Afghanistan, Uzbekistan, Turkmenistan and Tajikistan. Within India, the markhor is found only in Jammu and Kashmir.

In his application, Khudsar stated that the foundation stone for the road was laid on October 1, 2005, without following the mandatory procedure as prescribed by the law. Specifically, he contended that the construction of the road would result in the destruction of wildlife and its habitat, which is prohibited under Section 29 of the Jammu and Kashmir Wildlife (Protection) Act, 1978, and it would violate the order of the Supreme Court in I.A. 548 in W.P. 202 of 1995 dated February 14, 2000.

The applicant prayed for an immediate stay on the revival of Mughal Road from Bafliaz (Poonch) to Shopian. Although the stay was granted, the Supreme Court subsequently permitted construction after hearing the parties, including the State government.

The point to be considered here is that the protection of wild animals and birds is mentioned as Entry 17B under the Concurrent List, which also stands excluded from being applicable to Jammu and Kashmir. As in the case of forests, the State could have claimed that it would be bound by its Wildlife (Protection) Act, 1978, rather than the Wildlife (Protection) Act, 1972, enacted by Parliament, and that it could not be subjected to the Supreme Courts monitoring mechanism. But it did not claim so.

Environmentalists who have been following the Godavarman case find the distinction sought to be drawn by the State government between wildlife protection, national parks and sanctuaries on the one hand and forests simpliciter on the other as totally unconvincing.

The CECs clean chit to the State government on the diversion of forest land to the SASB, therefore, is intriguing. Ritwick Dutta, an environmental lawyer, is concerned that this will further encourage heavy deforestation going on in the State under the pretext that the State is not bound to approach the Supreme Court for permission to divert forest land for non-forest purposes.

To sum up, according to the Supreme Courts orders in the Godavarman case, it is for the Supreme Court to determine whether the diversion of forest land in favour of the SASB is consistent with the J&K Forest Conservation Act. It cannot be left to the discretion of the State government.