Green Bench, Grey Future: Supreme Court's green bench clears 118 pending projects

In the first 10 days of February, 118 pending projects, some of which have been on hold for 10 years, were cleared by the green bench of the Supreme Court. For a country already reeling under unprecedented heat-wave conditions, this can only have ominous consequences.

The range of projects cleared in one fell swoop is also unprecedented—from permitting the axing of ancient ‘heritage trees’ in West Bengal to the destruction of evergreen forests that protect the coastal line of Tamil Nadu to the felling of Class 3 trees (whatever that may mean) in Himachal Pradesh to taking a wishy-washy stand on the steady stream of encroachments in India’s premier Periyar Tiger Reserve.

Earlier orders delivered by the green bench on these very matters were overturned by Justice Bhushan Gavai and Justice Vikram Nath. The development lobby is elated; the environmentalists are seeing red. The entire approach, says one of them, has been dismissive rather than thoughtful and reasoned.

While the clearance was not unexpected, given Justice Gavai’s earlier pronouncements and observations, the cursory nature of the orders certainly is. In contrast to previous orders, these are brief, non-speaking orders, neither detailed nor well-researched, with little or no reference to facts and evidence submitted by petitioners.

The fallout? In West Bengal, over 350 heritage trees—valued at Rs. 2.2 billion in terms of oxygen and other micro-nutrients—are to be felled in order to build five overbridges across a 59.2 kilometre stretch from Barasat to Bongaon.

The above valuation was done in 2021 by an expert committee in its report to the SC green bench, then headed by chief justice S.A. Bobde. Alternative suggestions made by the committee such as the construction of ‘overbridges at lower costs’ located at other places along the same stretch of road, as well as exploring the possibility of underpasses have been ignored.

Commenting on the judgement, Prashant Bhushan, senior advocate, who had appeared for the petitioner and argued that the entire road-widening exercise would involve the felling of thousands of trees, said, “It is anti-environment. It indicates that the judges have no understanding or sensitivity towards sustainable development.”

In Himachal Pradesh—a state already undergoing a barrage of ecological problems caused by deforestation, construction of large hydro projects and unsustainable widening of roads from two-lanes to four-lanes— the bench has okayed felling ‘trees belonging to Class 3 in Khasra No. 457 on an area measuring 11.89 hectares falling under Theog forest, District Shimla’. (Shimla, as geologists have warned, could well be facing a problem of subsidence akin to what is happening in Joshimath.) These permissions have been granted in order to construct schools, dispensaries and community centres, which begs the question—since every state has public land already set aside for this purpose, why are our precious forest resources being targeted?

Environmentalist Reenu Paul cites the example of the Dehradun Municipal Corporation which decided to absorb 72 villages in its jurisdiction in 2016. Questions were then raised as to how the municipal body planned to utilise the village gram sabha and grazing lands taken over by the state. Several activists hoped it would help ease the burden on the sal forests growing around the city, targeted like so many others across the country for ‘developmental purposes’.

Several RTIs were filed by environmentalists for information on how much land had been handed over to the state and how it would be utilised. The state did not respond to these RTIs, and most of the land has since been handed over to contractors and real estate developers, points out Paul.

The perennial solution to the problem of denuded forests has been compensatory afforestation (CA). Former forester and convenor of ‘Yamuna Jiye Abhiyan’, Manoj Misra says, “CA is a scam. When we cut down trees, we destroy an entire ecosystem which is impossible to regenerate. Nature follows no laws of compensation. Our good core forest areas have come down and the percentage of degraded forests is on the rise.”

Debadityo Sinha at the Vidhi Centre for Legal Policy says, “‘Our judges and politicians continue to see forests as just standing trees that can be replaced by planting more trees. They are unable to comprehend that these are living entities which have evolved over millions of years and are irreplaceable.”

The green bench has also gone ahead and given blanket approval to all railway projects undertaken by the Indian Railways, as well as its subsidiary and sister organisations in Eco Sensitive Zones (ESZ), providing them with a single-window clearance. The only fig leaf left is that clearances pertaining to the railways be referred to the National Board for Wildlife, whose members have not been known to raise objections to heedless environmental clearances.

At present, India has 88 elephant corridors. Many of these are located close to railway lines. “We had managed to get a 10-kilometre exemption between Doiwala and Rishikesh to allow right of passage for elephants to move freely in the ESZ adjacent to the Rajaji National Park. But I understand work is on to complete a survey connecting Doiwala to Gangotri by train which will destroy this ESZ also,” says Paul.

The Supreme Court had also mandated a one-kilometre ESZ around protected areas. However, both Justice Gavai and Justice Nath have observed that ground realities will have to be taken into account before executing such a uniform order. The Tungareshwar Wildlife Sanctuary near Mumbai has now been exempted by the apex court and environmentalists believe this will pave the way for many more such exemptions.

In the Jim Corbett safari case, the National Tiger Conservation Authority had given the go-ahead to hold tiger safaris, and been questioned by the bench. A Supreme Court Central Empowered Committee had already sought curbs on setting up zoos and tiger safaris within tiger reserves. In the case of the Periyar Tiger Reserve, the National Green Tribunal had asked the Kerala government to file a compliance report on the construction of a mega car-parking facility and a football ground inside the reserve. The petitioners had referred these cases to the Kerala High Court. The matter went up to the apex court but even in such a crucial matter, the green bench chose to toss the ball back.

“This is an extremely disappointing order,” says Paul. “The three cases have been going on from 2017 when the petitions were filed. Instead of giving a clear directive, it has been referred back to the Kerala High Court. Justice has not been done in most of the cases which have been summarily dismissed. The apex court is the court of last resort and we spend a lot of money to bring our cases here.”

While disposing of these 118 petitions, the court observed, ‘The contest between development and environment concerns is ever ongoing. While there is no doubt that ecology and environment need to be protected for the future generations, at the same time development projects cannot be stalled which are necessary for economic development of citizens.’

This is a fallacious argument. The construction of a single kilometre of road in a hilly area requires extraction of 30,000 to 40,000 cubic metre of soil and stones. With forests felled, the topsoil cover is eroded, thus increasing the probability of landslides that result in widespread loss of life and property. According to geologist Dr. S. Sati, the tiny state of Uttarakhand is witness to an average of eight landslides daily on the Char Dham route.

In addition, the apex court has allowed the transportation of raw timber—banned by the Supreme Court in 1996—from J&K to places outside the state. The permission comes without any specifications on who will regulate and oversee this movement of wood (poplar trees). Activists fear this will result in the legalised plunder of their state’s already dwindling forest resources.

In Tamil Nadu, the felling of ‘some varieties of trees with a continuous growth’—a euphemism for evergreen forests planted to protect the coastal land from seawater flooding—has been okayed. Permission from local bodies will now suffice to cut down up to 500 trees.

In 1995, T.N. Godavarnam Thirumulpad filed a PIL questioning the destruction of tropical rain forests in the Gudalur and Nilgiri regions in violation of the FCA (Financial Conduct Authority) 1980 and the EPA (Environmental Protection Agency) 1986, causing serious ecological imbalances that affected the lives and livelihoods of the people of Tamil Nadu.

This had turned out to be a landmark intervention, leading to a continuing mandamus under which thousands of interlocutory applications dealing with tree-felling and forest encroachment and mining have been filed.

All the gains made over the last four decades by progressive legislation and judicial orders have been lost at one stroke. Why was Justice Gavai, who has made no secret of his contempt for PIL and the National Green Tribunal, allowed by the Chief Justice of India to preside over the green bench? Past precedents indicate that either the CJI himself or one of the seniormost judges of the Supreme Court should preside over the bench, whose decisions affect the lives of 1.4 billion Indians.

With Justice Gavai going on record saying, ‘PIL should not be used as a tool in present times’ and development should not be stalled ‘by white-collar environmentalists’— it should come as no surprise if further decisions of the green bench point towards a grey future.