INTRODUCTION: The taking, dealing (supplying, selling or trafficking), importing, exporting, processing, possessing, getting and consuming of wild fauna and flora are all key aspects of wildlife and forest crime.
Law enforcement operations in the area all too frequently concentrate on petty criminals, leaving high-level criminal businesspeople and their networks intact and lucrative. Anti-money laundering technologies and financial intelligence are rarely used to identify and disrupt trafficking networks. In many countries in the region, there is a need for legislative framework reform and minimal penalties for environmental offences. High levels of corruption serve as the foundation for everything else, considerably facilitating the illegal trade in wildlife and wood while impeding investigations and legal actions and constituting a serious threat to national governance.
In violation of domestic or foreign law, including timber and other forest products.
• Up to 30% of the world’s annual timber harvest, worth up to $150 billion, is illegal.
• It is estimated that between 50 and 90 percent of all forestry activities take place illegally in regions of the Amazon, Central Africa, and Southeast Asia that have substantial tropical forests.
• Rosewood is thought to be the most expensive and frequently trafficked illegal wildlife product worldwide.
Deforestation, desertification, and other types of environmental degradation, habitat destruction, loss of biodiversity, decreased government revenue, and less economic prospects for local residents are all effects of timber trafficking.
Armed organisations may receive funding through the trafficking of timber.
• Corruption, tax evasion, non-payment of fees, document fraud, and money laundering are just a few examples of the illegal activity that occurs along the entire timber supply chain. • If processing takes place at the point of origin, it becomes nearly impossible to determine the legality of timber products. Products that are illegal at this point in the supply chain are subsequently shipped legally later on.
• To smuggle illegally obtained wood into the global supply chain, timber trafficking necessitates the participation of dishonest businesses and corrupt government authorities.
Illegal logging and the trading in timber from such sources make up a significant illicit business with global supply systems. Its ubiquity is caused by a variety of criminal behaviours that, for a variety of reasons, go unreported or unpunished but violate local, national, and international laws.
The main enabler of the illegal timber trade is corruption. The cost of corruption in the sector is at least USD 29 billion annually (2016). In the forestry industry, bribery, fraud, abuse of office, extortion, cronyism, and nepotism are widespread and involve government employees, law enforcement personnel, and logging business executives.
The legitimate and illicit timber transactions are extremely interconnected, much like animal trafficking. Criminals operating within legitimate forestry companies, dishonest government employees, and law enforcement organisations frequently collaborate to smuggle illegally obtained timber goods into legitimate markets. Because of the high value of timber and the minimal likelihood of punishment, criminal organisations are drawn to the business.
Illegal logging and wood trafficking frequently take place in nations with weak government, lax law enforcement, and significant levels of corruption as well as in conflict zones and postconflict regions, particularly when sizable tropical rainforests still exist. Even in countries with robust policies and laws on paper, the forestry industry is not well regulated or overseen. Large-scale illicit trade is made possible as a result.
Quantity and demand
Up to 30% of the timber harvest is unlawful worldwide. The annual value of the illegal traffic in timber at up to USD 152 billion. 50 to 90 percent of logging operations is illegal in huge tropical forests found in sections of the Amazon, Central Africa, and Southeast Asia.
Global overexploitation of forests due to rising consumer demand for timber products, especially rare hardwoods, is unsustainable The demand for tropical hardwood furniture made in Asian nations for buyers in the U.S., Europe, and Japan is at its highest.
Rosewood, a name that refers to a variety of tropical hardwoods, is said to be one of the most valuable and frequently trafficked illegal wildlife products worldwide.
Timber trafficking’s effects
The following are only a few of the negative effects that timber trafficking has on equitable and sustainable development.
Reduces biodiversity, increasing the risk of species extinction, destroys habitats, increases human-wildlife conflict as a result of habitat destruction, denies communities the chance to harvest renewable forest resources and achieve sustainable livelihoods, deprives governments of billions in fees, taxes, and customs revenues, and frequently overlaps with other illegal activities.
The manufacturing and sale of goods made from these species pose a considerable risk to financial institutions and other private businesses, therefore all international trading in red sanders is prohibited. Only a tenth of red sanders that have been smuggled, according to allegations in the media, have been discovered. According to reports, releasing seizures after paying bribes is common.
Politicians, mid-level police, customs officials, and actors in the Tamil film industry have all been detained for their involvement in red sanding smuggling. The lucrative nature of trade attracts organised crime groups, corrupt officials, and others. Typical examples of corruption include: paying off police at road checkpoints to allow the movement of logs; bribing forestry officials to allow poachers access to protected areas; and paying off customs and port officials to provide forged documents and purposefully restrict physical inspections of suspicious containers.
Chains of legal and illicit timber trade
• Corruptness
• Tax fraud
• Failure to pay fees; • Fraudulent use of documents; • Money laundering
Source
The following are illegal activities that occur at the source: logging protected species, logging in restricted or prohibited areas, exceeding quotas, engaging in permit fraud, logging without permits, logging with illegally obtained permits, avoiding taxes and other fees, engaging in destructive harvesting methods, and engaging in more extensive logging than is necessary for infrastructure projects like roads.
Illegal behaviour occurs in the shadow of huge forestry businesses in those areas.
. Businesses frequently:
• log in regions that are not protected;
• surpass quotas;
• use trees that are protected;
• acquiring wood from local poachers;
• use a variety of fraudulent document practises to aid in the export of both legal and illicit timber
the same shipping, within.
Transit
Illegality includes the following during the transit phase :
• incorrect export classification; excessive exports; incorrect species, value, and volume declarations;
• the transport, processing, and sale of products made from trafficking timber; • clandestine export; • export without licences; • illegally acquiring export permits; • illegal export of protected species; • export with forged documentation.
Destination
Unlawful acts during import include the following: the illegal import of protected species, the breach of import restrictions, undeclared imports, falsified, fraudulent, or insufficient documentation, and false declarations.
• hiding the wood’s true origin by labelling it as having been “harvested in Europe/Asia,” for example.
• producing false timber certifications that are artistically crafted to resemble genuine ones
The following are examples of false and deceptive product labels: “ethically collected” or “manufactured from sustainable wood”; “imports exceed specified limitations;” “timber imported to third countries and then re-exported to destinations to profit from free trade agreements or less stringent laws.”
It is true that some legislative measures have been taken to guarantee forest protection in India, but the Indian Supreme Court’s contribution in this regard is unparalleled. The Supreme Court of India has been playing an outstanding role over the past 20 years by undertaking the Herculean task of comprehensively conserving and protecting the nation’s forests.
INDIA’S ENVIRONMENTAL PROTECTION MECHANISMS
In India, the Common Law, the Constitution, and more recently environmental statutes, particularly the Forest (Conservation) Act of 1980, are the three main legal frameworks for environmental protection.
A. Common law of India
Indian common law, which was drawn from the British legal system and in place since the colonial era, provided a number of routes for protecting the environment before 1970 and the beginnings of a statutory approach to environmental preservation. Indian tort law recognises strict liability, negligence, trespass, and nuisance as the primary causes of action available for protecting the environment, much like the British and American legal systems do.
Nuisance
Public and private nuisances are separated under Indian common law. According to the law, a public nuisance is “an unjustified interference with a right common to the general public” and is both a tort and a criminal offence. However, in order to establish a private right of action, a member of the public must demonstrate particular damages. As a result, lawsuits for environmental protection based on a claim of public nuisance are seldom.
The plaintiff in a nuisance action must typically demonstrate the reasonableness of the defendant’s conduct, which is notoriously difficult to establish in Indian courts. Furthermore, the way the nuisance legislation is applied differs throughout Indian states, making it difficult for plaintiffs to get uniform outcomes.
Trespass
In Indian environmental litigation, trespass is a lesser-used but nonetheless legitimate cause of action. “An intentional invasion of the plaintiff’s interest in the exclusive possession of property” is a requirement for trespass. Private nuisance and trespass are very similar. However, it varies depending on the type of damage involved. Trespassing causes harm directly, whereas private annoyance causes harm indirectly. Even though courts frequently provide trespass relief and even exhibit an activist sentiment by expanding the scope of trespass to include a variety of polluting sources, this tort is rarely invoked.
Negligence
The available negligence cause of action in India is the same as that in the US. Negligence calls for
(1) a responsibility owed by law;
(2) the defendant’s breach of that duty;
(3) a link between the breach and the harm; and
(4) the harm it does.
Negligence is rarely utilised in environmental proceedings, typically only appearing in nuisance actions due to technical issues. Due to the inherent difficulties in determining the sources of pollutants, negligence actions in environmental contexts also present a barrier in establishing a causal link between the violation and the harm.
Strict Liability:
The Rylands v. Fletcher Rule is known as strict liability. The strict liability rule stemming from the English case Rylands v. Fletcher is rarely used in environmental protection lawsuits in India, despite the fact that it is still theoretically sound legislation. “The person collects and keeps on his land anything liable to do trouble if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural result of its escape,” the regulation declares. Few defences are available to defendants because of the strict responsibility. In M.C. Mehta v. Union of India, the Indian Supreme Court outlined a stricter strict liability rule in recognition of the challenges in applying the Rylands rule. For companies involved in activities that are inherently dangerous, the court there introduced the concept of enterprise liability. The notion establishes the enterprise’s absolute culpability for any damage caused by a risky activity it engages in.
B. The Constitution of India
The fundamental organisation of the Indian Constitution is covered in the first section, followed by a common source of environmental protection, Article 21 of the Fundamental Rights.
Basic Structure
The Indian Constitution incorporates the core tenets of Indian society’s legal system and functions similarly to the American Constitution. There are twenty-two portions to the document. Part III, Fundamental Rights, Part IV, Directive Principles of State Policy (Directive Principles), and Part IVA, Fundamental Duties are the pertinent portions for these purposes.
In the interest of society, Part IVA, Fundamental Duties, specifies social behaviours that Indian citizens must adhere to. Every Indian citizen has a responsibility to “guard and improve the natural environment, including forests,” according to Article 51A(g). The Fundamental Duties are non-justiciable, like the Directive Principles, but they do serve as a guide for the Supreme Court in determining the obligations of government.
Environmental Defense based on Fundamental Rights Article 21
Indian citizens have “the right to seek the Supreme Court through suitable proceedings for the enforcement of basic rights,” according to Article 32 of the Indian Constitution.
The Court broadens the scope of substantive rights that can be enforced under Article 32 by using Article 21, which is India’s equivalent of the American Due Process Clause. The Court established the market for public interest litigation—its favoured method for upholding constitutional rights—by interpreting the right to life in the manner that it did.
Environmental laws
Indian Forest Act,1927
A new comprehensive Forest Act, which superseded all earlier legislation, was passed in 1927 to modernise the forest laws and the forest Act of 1875. The Act is made up of 13 chapters and 86 sections. The Act’s primary goals are:
1) To combine the legislation governing forests.
2) Control over and transportation of forest products. And,
3) – To impose taxes on wood and other forest products
Forest Conservation Act, 1980
The Parliament passed a new law known as the Forest Conservation Act, 1980 in 1980 in response to the rapidly declining forest cover in India and to fulfil the constitutional requirement under Article 48-A. Deforestation contributes to ecological imbalance and the degradation of the environment.
On October 25, 1980, the President signed into law the Forest (Conservation) Ordinance, 1980 in an effort to stop further deforestation. According to the Ordinance, de-reservation of reserved forest and use of forest land for non-forest uses both require previous Central Government consent. The creation of an advisory committee to counsel the Central Government on the granting of such consent was also provided for by the ordinance.
Act of 2006 Recognizing Forest Rights for Scheduled Tribes and Other Traditional Forest Dwellers
The Rajya Sabha and Lok Sabha both unanimously approved the Scheduled Tribes and Other Traditional Forest Dwellers Act, 2006 on December 18, 2006. This law sought to grant traditional forest residents ownership rights over forestland. The legislation relates to the denial of land and other resources to communities who live in forests for decades due to the persistence of colonial forest regulations in India. On December 31, 2007, just over a year after it was passed, the Act was announced to go into effect.
THE PARTICIPATION OF INDIA’S SUPREME COURT IN FOREST CONSERVATION
By deciding that legislative action rather than judicial formulation was more appropriate for the main areas of the law left unresolved by the legislation, the court played a significant role in conserving forests and animals. In addition to highlighting the importance of forests, courts worked to defend the rights of those impacted by development projects and tribal members who are an integral part of the forest environment.
They attempted to impose the idea of sustainable development to resolve the environment-development paradox while upholding the controls and exploitation of forest resources by relying on the “public trust doctrine” to protect and maintain forests and natural resources. In creating the Indian jurisprudence for forest conservation, the Supreme Court of India must be specifically cited.
The independent judiciary, which is endowed with the authority of judicial review, has made a significant contribution to India’s efforts to conserve its forests and wildlife. The development of environmental jurisprudence in India has gained momentum thanks to judicial activism as a result of the locus standi’s extension.
PIL: A Powerful Instrument for Forest Conservation
The Supreme Court has dealt with a number of issues relating to the conservation of forests, the preservation and protection of wildlife, the protection of tribal rights, and the achieving of forest conservation through the use of PILs (Public Interest Litigation). The court has also discussed how to strike a balance between the right to trade and do business freely, the need to preserve forests and wildlife, and issues relating to biodiversity. The FCA, 1980 provisions have been interpreted by the Supreme Court with the aid of PIL.
The Supreme Court’s interpretation and application of the Forest Act of 1980: The Court’s Function in Forest Conservation
In T.N.Godavarman Thirumalkpad v. Union of India, the Supreme Court severely interpreted and applied the Forest Conservation Act 1980’s provisions. To enforce the FCA, the Court made broad rulings. An embargo on the exploitation of forests and forest products was established, and all wood-based companies were shut down. In order to carry out the directives it issued in this case, the Court also established Central and State committees. The court acknowledged that the FCA was implemented to counteract the ecological imbalance brought on by rampant deforestation.
The word “forest” used in the FCA was also defined by the court. The Court ruled that all woods must be subject to the act’s obligations, regardless of their ownership or categorization.
The dictionary definition of the term “forest” must be used when understanding it. For the purposes of s.2, this classification applies to any legally recognised forest, regardless of whether it has been classified as reserved, protected, or otherwise (I). The term “forest” will refer to any area listed as forest in the government records, regardless of ownership, in addition to forest in the dictionary definition.
Supreme Court’s contribution through the Godavarman Case
The Godavarman casemay be the largest single matter in which any court has ever intervened globally. It is now being heard twice a week by two different benches of the court and is in its sixteenth year. Throughout 15 judges heard the cases over the course of the last 15 years at various periods. It is a singular judicial attempt to address the concerns of deforestation and forest governance in all of its multifaceted forms. Without a question, it has increased the severity of the national policy debate on the issue of forests. Every element of the country’s conservation of the nation’s forests and wildlife has been impacted by the many orders in the Godavarman Case. The court had made an effort to close the gap between the implementation of the law on forest protection and its intent.
The Court provided broad instructions to execute the Forest Conservation Act, 1980 in T.N. Godavarman Thirumulkpad v. Union of India. The Court ruled against the exploitation of forests and forest products as well as the closure of wood-based companies. In order to carry out the directives it issued in this case, the Court also established Central and State committees. The court acknowledged that the FCA was implemented to counteract the ecological imbalance brought on by rampant deforestation. The Court made it quite plain that all forests must be subject to the terms of the act, regardless of who owns them or how they are classified.
Through its various rulings in the Godavarman case, the Supreme Court has addressed a wide range of concerns relating to the preservation of forests. The court has addressed a number of issues through this case, including the definition of the term “forest” and the implementation of the Forest Conservation Act, 1980, the creation of the Arunachal Pradesh Forest Protection Authority and the Central Empowered Committee, the encroachment of forest land, and the creation of the High Power Committee to oversee the Northern Eastern States’ implementation of court orders.
The Court’s proactive move to protect forest resources was the creation of the Central Empowered Committee. Any anyone with complaints about actions performed by the government or any other authority that are ostensibly in line with the Supreme Court’s order is free to contact the committee in search of appropriate remedy. Any application that the Committee is unable to decide upon may be referred to the Supreme Court.
In addition to the Supreme Court’s rulings in the Centre for Environmental Legislation, WWF-India v. Union of India case, which dealt with the protection of National Parks and Sanctuaries, forest conservation law in India is also impacted by the Godavarman case. Although the resolution of rights in national parks and sanctuaries is the case’s primary concern, its breadth goes much beyond this matter. The order from the Supreme Court on November 13, 2000, prohibiting all State governments from dereserving National Parks, Sanctuaries, and Forests, was the most significant.
The movement for the conservation of India’s forests has benefited significantly from the judgements in these instances. Unquestionably, one of the most influential cases for the study of continued mandamuses and the reach of public interest litigation is the Godavarman case.
CONLCUSION:
By enunciating a web of concepts, expanding the locus standi’s application, allowing public interest litigation, and interpreting constitutional law from an environmental standpoint, the judiciary has contributed to the development of forest law in India. It is real. The Forest Law’s provisions were merely written down, but judicial interpretation has given them flesh and blood. In the area of environmental law in the Indian context, the myth propagated by the black letter law tradition that judges do not create law but rather merely find it or interpret it is untrue. There is lawmaking.
The best examples of it are the Godavarman case and Centre for Environmental Law, WWF- India v. Union of India. By creatively interpreting Indian forest regulations, the Supreme Court has attempted to close the gap between the letter of the law and its actual application. The judiciary has fulfilled the role of the law-maker by creating a number of committees and giving them the authority to carry out the requirements of the forest laws.
A challenge has been presented to a developing nation like India by the drive for economic development and the requirement for the protection of forest resources. In such a situation, the Supreme Court has attempted to strike a balance by approving large projects and dams in the interest of the county’s development, while also making efforts to take care of the environmental impact assessment of these projects, the protection of the rights of the forest dwellers, and other issues.
We can infer that judges do indeed create laws. The judicial process includes the creation of laws. There is no longer any question that the substantial body of law that governs citizen lives and controls state operations results from decisions made by the Superior Court. The Supreme Court is making an exceptional effort to preserve the forest resources.