The Supreme Court yesterday prohibited the Union and State governments from taking any action that would result in a reduction of "forest land" nationwide unless they allocated compensatory land in return.

A bench of Justices BR Gavai and K Vinod Chandran passed the order to the following effect: "Until further orders, no steps will be taken by the Union or any of the states which would lead to reduction in the forest land, unless compensatory land is provided either by the State or the Union for the purposes of forestation."

The Court was hearing writ petitions challenging the 2023 amendments to the Forest Conservation Act (FCA). In February 2024, it issued an interim order directing States and Union Territories to follow the definition of "forest" from the 1996 TN Godavarman Thirumalpad case while the identification of forest land under the 2023 amendment is ongoing.

Building on its February 2024 order, the Court further directed the Union of India to instruct all States and Union Territories within two weeks to submit a comprehensive record of land identified as "forests" by expert committees formed under the TN Godavarman judgment.

All States and Union Territories were required to submit the expert committees' reports by March 31, 2024. The Court also directed that the Ministry of Environment, Forest and Climate Change (MoEF) maintain these records, digitize them, and publish them on its official website by April 15, 2024.

During yesterday's hearing, Senior Advocate PC Sen, representing retired IFS officials, argued that while the case is pending, authorities are using forest land for compensatory afforestation, which is ultimately reducing the overall forest area.

Senior Advocate Gopal Sankaranarayanan, appearing for an applicant, supported the argument, adding that the MoEF has issued certain Rules, followed by guidelines under these Rules, which have been challenged through an application.

The senior counsel further contended that pursuant to the Court's interim directions, some states have identified "forests", while some have not, and until the exercise is completed, the Rules can't be allowed to prevail. "While the states are yet to identify 'forests', the Rules can't be allowed to be used to permit ex post facto approval", he said.

Gopal Sankaranarayanan raised three key contentions regarding the Rules: (i) trees on forest lands are being cleared to make way for compensatory afforestation, (ii) ex post facto approval is not permissible, and (iii) linear projects have been granted a complete exemption under the Forest Conservation Act, which he argued is not allowed.

In response, Justice Gavai posed to Additional Solicitor General Aishwarya Bhati (for Union), "Are you using forest land for compensatory afforestation?" The application in question not having been served on the Union, the ASG restricted her submissions to the Court's interim directions in the batch of petitions.

She acknowledged that some states have complied with the Court's directions, while others have not, and requested time to file a status report along with a response to the application in question.

At this point, Gopal S submitted that until forests are identified, some protection has to be there. He also underlined that 2 yrs were given to the authorities to identify forests, but nothing has happened for the past 29 yrs. Last year, he added, the authorities were directed to upload list of all forests, but that still remains to be done.

Ultimately, the bench issued notice on the interim application argued by Gopal S. Justice Gavai orally told the ASG, "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."

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