AAREY' S NIGHT OF THE CHAINSAWS- TIME FOR THE JUDICIARY TO GET OFF THE FENCE.

                   

   

If you're still wondering why India ranks at 177 out of 180 countries in the World Environment Performance Index ( we were at 141 in 2016), you need look no further than what happened in Mumbai's Aarey forest last week. Every concerned institution and civil society contributed to the massacre of thousands of trees, a deed which, befitting a dastardly crime, was performed in the dark of the night- the political executive, the administration, the judiciary, civil society( barring a few hundred brave souls). The whole process, clothed in frayed legal garb, was a travesty of the legal process, something which is recurring with greater frequency these days as the courts appear to be wary of rubbing the government the wrong way.

  No reasonable person would hold that 2600 trees do not constitute a forest, and yet the Mumbai High Court did precisely that, on the basis of a technicality and perhaps missing out on an order of the Supreme Court itself. The Forest Conservation Act 1980 does not define a "forest" but the Supreme Court did, in the 1996 Godavarman case: it ruled that the dictionary meaning of the word would apply, regardless of the title of the land or its categorisation in forest or revenue records. The Oxford Dictionary defines a forest as " a large area covered chiefly with trees and undergrowth." The court asked all states to notify forests as per this definition, and further stipulated that no non-forestry activity would be permissible in these areas without a strict process of approval. Some states complied; for example in Himachal any area of 5 hectares or more with a canopy density of 40%, by itself or in contiguity with a wooded area, would be deemed to be a forest, in Gujarat it is 2.5 hectares. Unfortunately most states have not done so, including Maharashtra, even 24 years down the line. Their nefarious motive is clear: by not defining forest areas they can continue to divert valuable forest land for mining, industry, dams, real estate development etc. without seeking environmental approvals that forests would attract. Rent seeking would continue to flourish while the environment would continue to be devastated. It's happening in the Aravalis, in Jharkhand and Chhatisgarh, in the Western Ghats.

  Aarey is the last remaining green lung of Mumbai and covers an area of 1287 hectares, with an estimated 500,000 trees on it., abutting the Sanjay Gandhi national park and the Mithi river. It is home to Adivasis and is rich in wildlife. However, it remains an undefined area, but the government's deliberate and venal lethargy in defining it does not make it any less of a forest. The metro car washing shed proposed on it is in the Red category of industries- that is, most polluting- and the millions of liters of toxic water from the washing activity ( mixed with oil, grease and sludge) is bound to leach into the soil of the forest and also the river. The project should never have been allowed in the middle of Aarey. In fact there were eight other alternative sites the BMC or the MMRCL could have chosen from, including the Backbay Reclamation area and the Kanjurmarg marshes, but they opted for Aarey because it was the "cheapest" as no price is ever attached to the natural environment in India: trees are only priced at their current wood value, not for the far more important ecological services they provide, and that too for a life span of 50 to 80 years. If these values were also factored into the project cost then perhaps forest areas would not be the first choice for industrial projects.

   It boggles the mind that the High Court did not consider these aspects but chose to resort to the technicality that since Aarey had not been categorised as a forest by the state govt. it did not merit any protection. In effect, it rewarded the state govt. for NOT DOING SOMETHING IT WAS DIRECTED BY THE SC TO DO IN 1996, VIZ. DEFINE WHAT CONSTITUTES A FOREST AS PER THE COURT'S "DICTIONARY MEANING" INTERPRETATION.

   The High Court further concerned itself with the procedural aspects rather than the merits of the petition, loftily noting that the petitioners " had lost touch with the procedures to be followed": since  the issue of declaring Aarey as a forest/ eco-sensitive area was pending before the SC and the NGT, therefore the petitioners should seek relief there- " sink or swim" there, I believe were the exact unguent words. This raises two points. One, if the matter was still pending a judicial determination then why was MMRLC allowed to go ahead with the cutting of the trees on the next two nights? Surely the correct course would have been to stay the fellings till the higher courts decided the matter? And secondly, my lordships, it is not just the petitioners who will "sink" if Mumbai's last remaining green tract is destroyed, it will be the whole city, including the High Court.

   The Supreme Court has of course stayed the felling of trees now, in an intervention which must be appreciated. But the order is practically non est- meaningless and without any significance- since the trees have already been slaughtered. The govt. counsel in the SC triumphantly stated( crowed?) that 2141 of the required 2185 trees had already been cut, they did not need to cut any more, and now the construction work on the shed will begin. As has become almost the rule now, the govt. has presented the court with a fait accompli which it will be happy to accept. Don't rock the boat( or the bench) appears to be the current motto.

  It is not just a question of the 2141 trees that have been massacred in the night of the chainsaws. The court should have recognised the govt's intentions for what they really are- salami tactics, chipping away at the forest a few hectares at a time. Aarey has already lost a large part of its priceless greenery to the Aarey Milk Colony and the Filmcity ( 600 acres); it was time now to draw a red line. For the plain truth is that India has never had a government so unmindful of the natural environment, willing to sacrifice it all for a blind pursuit of the GDP gods. There is enough testimony to this in the almost total dismantling of the environmental approvals regime, felling of trees in Chhatisgarh, Uttarakhand, Aravalis etc. for mining, unnecessary highways, real estate development, dams, failure to declare the ESZ ( Environmentally Sensitive Zones) in the Western Ghats as recommended by the Gadgil and Kasturirangan Committees, ramming roads through tiger reserves, denotifying sanctuaries for the Ganga Waterway, and so on. All this is hidden under the bluster of grandiloquent announcements and fudged statistics which the world is now beginning to see through.

   Given the collapse of all other forms of opposition and checks to the state it is now only the judiciary that can act as a brake. It has had many opportunities to do so but has not seized them, including the 53000 mangroves being slaughtered for the Bullet train, the 40000 deodars for the Char Dham highway, the desecration of the Yamuna flood plains for the Art of Living jamboree. It is no longer about maintaining a balance between the imperatives of the environment and "development", as it would like to believe: the need now is to correct the imbalance which is destroying the planet. Our courts will be doing a  great dis-service to the ecology by laying more store on procedures, technicalities, choosing to believe the assurances of the government. As Aarey shows, the government deals with a marked deck and speaks with a forked tongue. The time for sitting on the fence is now over. The judiciary needs to be more proactive in saving the environment, it cannot continue to look at its wanton destruction through the prism of legal technicalities and procedures. It needs to dispel a worrying perception that it is reluctant to take on the government of the day in such matters. After all, judges too reside on the same planet as the petitioners. In any struggle between right and wrong, professing neutrality means siding with the wrong. In the final analysis the majesty of the law is but a legal fiction and is as nothing before the majesty of Nature, which is the reality. In matters of the natural environment there is no place for the dictum- "Nemo judex in causa sua" ( nobody should be a judge in his own cause)- for when this boat sinks there will be no survivors.