How the Karnataka High Court missed the forests for the trees

Certain remarks of Karnataka High Court in the Cauvery Calling case are controversial not only because of a poor understanding of ecology but may also leave a negative impact on environmental jurisprudence.

The High Court of Karnataka while dismissing a public interest litigation (PIL) petition against the ‘Cauvery Calling’ project, observed that the only remedy available to save mankind and planet earth is afforestation, which is being carried out by the Isha Foundation for which they must be appreciated.

The Cauvery Calling project which was launched by Isha Foundation in July 2019 aims at planting 242 crore trees in Karnataka and Tamil Nadu in the next 12 years.

The PIL, however, did not question the merits of the project but was filed to obtain a stay on it on the grounds that the organisers are raising funds amounting to ₹10,626 crores to carry out plantations on government or public land without the approval of the State government.

Upon submissions made by the State government of Karnataka and the Isha Foundation, the High Court, through a bench presided by Acting Chief Justice Satish Chandra Sharma, found the claims of the petitioner to be frivolous as the project aimed at planting trees on private agricultural lands and not on government land as claimed by the petitioner.

Needless to say, the High Court acted within its powers in dismissing the PIL upon verifying the facts of the matter. However, what seems to be deeply problematic is that the Court went beyond the actual contentions of the case and made certain remarks which are controversial not only because of a poor understanding of ecology but may also leave a long-lasting negative impact on environmental jurisprudence.

First, the Court used the terms ‘afforestation’ and ‘plantation of trees’ interchangeably, even though they have different meanings and purposes altogether. What the Cauvery Calling project envisages is planting trees on private agricultural farms which is not comparable with creating or restoring forests. The judgment wrongly assumes that Cauvery Calling is a noble cause of creating forests, without deliberating on any logical details of the project to establish the assertion.

Secondly, the High Court cited numerous judgments of the Supreme Court on preservation of forests and concerns arising out of forest loss, despite the fact that the Cauvery Calling project is not concerned with preservation of natural forests or halting deforestation.

Planting of trees and protecting natural forests are two different activities, and it has been clarified by the Supreme Court, High Courts, and the National Green Tribunal on several occasions that trees raised on non-forest land are not considered as ‘forests’ in legal terms. Protection of forests and trees or plantations raised on non-forest land are also regulated by a different set of laws.

For instance, the Karnataka Forest Act, 1963 and the Forest (Conservation) Act, 1980, which regulate forests in Karnataka are not applicable to trees raised on non-forest land. Such trees come under the purview of another law - the Karnataka Preservation of Trees Act, 1976.

Thirdly, on the issue of plantations on government land, the Court observed that planting trees on barren government land is not a crime. The judgment referred to the fact that the State government could not cite a single law which prohibits people from planting trees on government land.

The Court said that prohibition on planting trees on government land will create havoc and a large number of such plantations which are currently ongoing in the country will come to a standstill. The bench may have seen an opportunity to exercise its discretion in interpreting the law here. However, such an observation from the bench was in ignorance of the basic principle of statutory interpretation- that of Ut Res Magis Valeat Quam Pereat which literally means the construction of a rule should give effect to the rule rather than destroying it.

Such blanket clearance to plantations on any barren government land, without any qualification, relies on profoundly wrong assumptions of them being waste land and ignores the varied purposes for which lands may be put to use - such as grazing or conservation of nature, to name a few. In some circumstances, plantations on such bare government lands may actually become counterproductive by altering the ecosystem services they provide. Irrespective of ownership of land, such assertions from the High Court also have the potential to affect laws related to trespassing, irrespective of the Court’s noble intentions.

Moreover, the Court fails to acknowledge that ‘government land’ constitutes several different kinds of lands, which are classified and protected under various laws with respective authorities of their own. For instance, government or public lands falling under notified areas under the Wildlife (Protection) Act, 1972 or the Indian Forest Act, 1927, or eco-sensitive Zones notified under the Environment (Protection) Act, 1986 are regulated through their own authorities and respective management plans.

Such protected areas also constitute vast tracts of land which are arid, semi-arid scrubland, desert, savannah, ravines, grassland, swamps etc., all of which may appear to be or get classified as barren or fallow but are critical ecosystems having a unique assemblage of flora and fauna, thereby playing important roles in regulating climate.

We must understand that planting trees along the banks of River Chambal will be an ecological blunder as that land is used as nesting sites for the Gharial, a critically endangered crocodile species endemic to India. Similarly, the Great Indian Bustard, one of the heaviest flying birds inhabiting the grasslands of India is now on the verge of extinction with less than 200 left in the wild, owing to loss of its habitat in 90% of its range. There are many wild animals which have evolved within such barren and scrub ecosystems, including many endemic species such as the Indian Wolf, Blackbuck and many deer species. All of these species are extremely sensitive to a change in landscape structure and need open areas to survive.

It is important to understand that planting certain trees in a scientific manner has its own benefits, but is not a magic pill which can cure all diseases. Plantations can never replicate the ecological value or biodiversity of a natural forest. In fact, planting trees in previously unforested land has the potential to cause even more ecological damage than the carbon sequestration benefits it promises.

Institutions and NGOs must exercise utmost thoughtfulness while glorifying such projects which may create false assurances among the public. Not only does this undermine the importance of natural open ecosystems like grasslands and savannahs but it makes the work of conservationists and forest managers even more difficult. Halting deforestation, restoring natural ecosystems, and minimising consumption are some of the immediate measures which all of us need to build a larger consensus upon.

Debadityo Sinha is an award-winning conservationist and leads the Climate & Ecosystems Initiative at the Vidhi Centre for Legal Policy, New Delhi. Views expressed are personal.

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