The Judicial Fix for Forest Loss: The Godavarman Case and the Financialization of India’s Forests

Abstract

In India, the setting up of large projects in forest areas can be undertaken only after government permission is obtained under the Forest (Conservation) Act (FCA) of 1980. Today, this approval process includes the enumeration and valuation of forest loss, and the financing of compensatory afforestation schemes to offset the loss. These procedures were designed through the orders and judgements of the Supreme Court of India in a set of cases that started in 1995 and continue to this day. These procedures are purportedly aimed to protect and restore forest ecologies in India.

In this article we analyse the Supreme Court’s processes and orders between 1996 and 2006 which transformed the political ecology of forests in India. The judicial and expert discourses treated forest regulation and conservation as a techno-managerial exercise, separating it from social-ecological concerns such as historical dispossession of Adivasis and other forest-dependent people, and violent state suppression of diverse forms of forest management. The judicial interventions are instructive to understand the policy processes of green neoliberalism and the implications of the financialization of forests on environmental governance in India.

Keywords

Forest loss judicial fix Supreme Court

Introduction

In 1995, a petition was filed by T. N. Godavarman Thirumulpad bringing attention to timber felling in forest estates that belonged to his princely family before tenancy reforms took place in the state of Kerala. The Supreme Court of India initiated a continuing mandamus¹ as the T. N. Godavarman Thirumulpad versus Union of India. This Civil Writ Petition No. 202 of 1995 is also referred to as the Forest Case or the Godavarman case. One of the first directions in this case issued on 12 December 1996 extended the scope of India’s forest laws to all areas that attract the ‘dictionary meaning’ of forests².

Since then, the ‘Forest Bench’ of the Supreme Court, as the judges hearing the Godavarman case came to be called, heard this matter every Friday afternoon for several years. In the early days of the case, over 2,000 people would be in court (Gokhale, 2016; Manohar & Bhargav, 2016). The petitioner, Mr. Thirumulpad described this to a journalist saying, ‘Even I was taken by surprise at the sweep of the judgment. There was quite a hullabaloo about the judgment. Small growers, planters, factory owners and laypersons from Ooty came up with petitions against the stay order. I began to feel that I had bitten off more than I could chew. Nambiar then assured me that the Supreme Court had taken up the matter as its own.’ (Surendranath, 2002).

Several hundred intervention applications (IAs)³ were filed by sawmills, paper companies, and private estate and plantation owners, whose operations had been affected by the initial orders. The continuing mandamus allowed the bench to go beyond the management of plantations in forest areas and take up a wide range of issues that were crucial to forest governance since colonial times. As the Court went about this task, its proceedings legitimized and institutionalized new forms of knowledges on forests and new policies for managing them for an extractive capitalist economy.

Research Questions, Approaches and Methods

In this article, we attempt to theorize how and why the judiciary legitimized neoliberal policies for forest conservation and to what political effects. We argue that state failures to manage forests, depicted by the high levels of non-compliance to forest legislations, dispossession and displacement of forest dwelling communities, were threatening to unsettle the legal system of forest diversions for economic activities. The expert processes constituted by the judiciary put in place ‘a new politics of calculation’ (Mitchell, 2002, p. 8). More importantly, it provided a means by which the forest bureaucracy could retain power and control over India’s forest estates despite political challenges to its control and its tremendous failure to mitigate forest loss in the country.

Our methodology involves qualitative, thematic analysis of primary material collected from observations of court sessions and court-produced documents such as pleadings, orders and judgments. The Godavarman case is one of the longest running cases in the Supreme Court of India. Many connected cases were filed in relation to the main petition and the ‘cause list’ or the listing of matters before the Bench ran into pages. The hundreds of court hearings in many connected matters held over the years have hence generated a vast amount of legal materials. The identification, selection and chronological arrangement of court documents involved multiple levels of careful matching of the court proceedings to specific case numbers.

Based on these primary materials, we situate and analyse the emergence of new forest regulation approaches within two sets of theoretical concepts. Our analysis is framed around the questions that are central to the anthropology of expertise such as how is expertise constituted, enacted and sustained as authoritative knowledge in modern societies and to what political effects (Boyer, 2008, pp. 38–46; Carr, 2010, pp. 17–32; Mitchell, 2002, pp. 19–53; Mosse, 2011, pp. 1–31). This approach is useful to analyse policy processes and texts within the particular contexts in which they are produced as it offers a deeper insight into the nature and role of expertise in policymaking. We focus on the expert bodies set up by the Supreme Court and their role in transforming the political ecology of forests in India.

The article draws on the rich scholarship on ‘neoliberal natures’ to analyse forest valuation frameworks as a mode of conservation in India (Bakker, 2003, pp. 35–58, 2007, pp. 430–455; Castree, 2008, pp. 131–152; Heynen et al., 2007, pp. 1–22; Igoe & Brockington, 2007, pp. 432–449). Neoliberalism is broadly understood as the ideological and political project of reducing the role of the state and expanding the role of capitalist markets in the governance of society. It is signified by greater privatization and self-regulation of economic sectors and an increased role for the civil society and expert knowledges (McCarthy & Prudham, 2004, pp. 275–283). In neoliberalizing states, the efforts to regulate, manage and mitigate ecological concerns accompanying neoliberal economic growth have taken the form of institutionalized environmental politics (Bulkeley & Mol, 2003, pp. 143–154; Pieterse, 1998, pp. 343–373; Weston, 2004, pp. 313–325). Neoliberal environmental policies seek to achieve environmental protection while expanding the reach of neoliberal growth (Bigger & Dempsey, 2018, pp. 25–75). Michael Goldman describes such policies that are based on these two contradictory ideologies as ‘green neoliberalism’ (Goldman, 2001, pp. 499–523).

Structure and Contribution

In this article, we tease out the messiness of forest regulation efforts against the background of economic neoliberalization and financialization of forest ecosystems in India. Much of the available literature claims that the judiciary stepped into the arena of forest conservation because of the failure of the Indian state. Our attempt in this article has been to critically analyse and theorize the ideological and political nature of these failures, and of the judicial and expert processes that followed to address them. We build on the existing literature analysing the Godavarman case and highlight the import of the case materials to theoretical debates on green neoliberalism or market-based conservation.

The article is further structured into four sections. The first section traces the context of forest regulation in India’s political economy with a focus on the domestic compulsions for the enactment of the Forest (Conservation) Act (FCA), 1980. We argue that this centralized regime of forest governance was further reinforced by a reformist judiciary through the Godavarman case. This was despite the failures of and challenges to the centralization of bureaucratic control of forests. The second section of the article delves into the politics of environmental knowledge making by expert processes. We focus on the contingency and fluidity of the processes by which the judiciary adopted new policies for the valuation and financialization of India’s forests. These policies reconstituted forests as standardized, monetizable and fungible commodities, and established a mechanism to ‘trade-off’ forests. In the third and concluding section, we analyse the socioecological effects of forest commodification and marketization. We reflect on the implications of the judicial and expert processes on forest valuation on the political contestation for rights over forests.

Centralization of Forests in Liberalizing India

India’s forests have largely been managed as government estates since the formation of a colonial Forest Department in 1864. The total forest and tree cover in India is 80.73 million hectares, covering almost a quarter of the total geographical area of the country (Forest Survey of India, 2019). Forests are directly important for the livelihoods of a large section of India’s population. The number of forest-dependent people is understood to be between 275 million (World Bank, 2005) and 400 million (Ministry of Environment and Forest, 2009). Forests are also central to mainstream economic sectors such as energy, transport and industry.

Up to 1976, state governments managed forest lands through state laws, schemes and programs for development projects, industrial forestry and agricultural land rights. Projects involving felling of trees and raising of plantations for revenue by the state forest departments affected the resource base of poor rural communities (Guha & Gadgil, 1995, pp. 22–28). Pending the official resolution of community claims over forests, forest departments engaged in eviction drives to free up forest land for plantations and other uses (Kulkarni, 1979, pp. 55–59). During this period, the central government’s role in management of forest lands was limited to setting policy priorities and monitoring. From 1976 to 1980, through a set of constitutional⁴, legislative and administrative changes, the central government led by Prime Minister Mrs Indira Gandhi, took control over vast forest lands that were under the jurisdiction of state governments. Through these measures, it hoped to reorient forest uses to a changing national political economy (Ramesh, 2018, pp. 295–297).

Following the enactment of the FCA, state governments could no longer officially undertake activities defined as ‘non-forest use’ such as commercial plantations, legal recognition of community rights over forests and the leasing of land to private persons in forest areas, without prior assessment and approval of the central government (Ministry of Environment and Forests, 1980, pp. 1–2). The central government introduced compensatory afforestation (CA) as a condition for accepting forest diversion proposals from state governments. This clause required user agencies to necessarily substitute the forest diverted by acquiring and growing forests over an equivalent area of private land. The central government justified that this legislation would bring down its use for commercial and industrial purposes in the states. But more importantly, the enactment of the FCA allowed the central government to be engaged in the political balancing of multiple claims over forest lands by state governments, private industry, conservation projects and local uses. It enabled the centre to participate in these negotiations that were crucial to the national economy and to different political constituencies at the state and regional levels (Kulkarni, 1979, pp. 55–59; Nongbri, 2001, pp. 1893–1900; Rangarajan, 2009, pp. 299–312).

The legal framework of forest regulation under the FCA was forged by the Congress’s political dominance. In the following years, as its dominance waned, centralized forest regulation faced two sets of challenges. First, the central government recorded high levels of non-compliance with the FCA⁵. Although the FCA mandated that forest diversions could be undertaken with CA, the central and state governments had jointly failed to acquire land for afforestation at the required scale⁶. To address this issue, the central environment ministry recommended the creation of ‘land banks’ in revenue forests⁷. In such areas, compensatory afforestation was to be ‘twice the extent of forest area diverted.’ But this too was a non-starter as inter-departmental conflicts (Tiwari, 1991) and social dependencies constrained the use of non-forest public lands for CA. The only option for the state government was to implement CA within degraded forests (also equated with scrub forest with a canopy density less than 10%) under the control of the forest department. This hardly matched the scale of deforestation.

The other challenge was from political demands towards decentralization of governance. Forest communities had been at the receiving end of draconian colonial laws that were designed for forest reservation and extraction by the colonial forest departments. These exclusionary and violent regimes of resource management continued even after India’s independence and adoption of a constitution. The forest department’s zamindari (landlordism) of forests was directly challenged by the mobilization of Adivasi sanghathans (Indigenous peoples collectives) and forest worker unions. Their political demands for rights to resources contributed to three major changes. The forest policy of 1988 was introduced through the advocacy efforts of social movements (Kulkarni, 1989, pp. 859–862). The policy recognized the protection of livelihood needs of the rural poor and adivasi communities as one of its central objectives (MoEF, 1988, pp. 1–10). In 1992, the 73rd amendment to India’s Constitution empowered gram sabhas (village assemblies) to function ‘as the Legislature of a state’⁸. The Panchayat (Extension to Scheduled Areas) Act, 1996 was promulgated which enabled adult residents of tribal hamlets to decide on local issues including natural resource governance through their own panchayats (village councils).⁹

The decade of 1985–1995 can be characterized as the post-Mandal¹⁰, post liberalization era in India where the twin discourses of neoliberal growth and welfare policies for marginalized sections of society that included forest communities, dominated national and regional political narratives. During this period, forest laws and policies were implemented in contradictory and truncated ways. As neoliberal economic policies gained ground in India through the expansion of mines, dams and polluting industries, many urban environmentalists, activist-lawyers and civil society organizations approached the higher courts directly through the route of public interest litigation (Sahu, 2014, pp. 1–70). Through PILs, the judiciary had positioned itself as the protector of public interest and a vehicle of reform in a number of areas where the state had failed (Bhushan, 2004, pp. 1770–1774; Dhavan, 1994, pp. 302–338). In environmental PILs, the higher judiciary borrowed and improvised international principles of environmental law such as sustainable development, polluter pays principle and precautionary principle (Divan & Rozencranz, 2002, p. 584; Ghosh, 2019, pp. 1–17).

It was in the milieu that the Godavarman case was initiated by the Supreme Court. An activist judiciary stepped into the role of forest guardian through this case when the regime of centralized forest regulation was contested by the changing political dynamics. From this period of the mid-1990s, the Supreme Court of India adjudicated on a range of complex issues related to forest governance through this one case. The court turned different sets of themes and issues on forest mismanagement into specific IAs or add-on cases such as those for dealing with the demarcation of forest lands, regulation of sawmills and wood-based industries, monitoring forest ‘encroachments’, working permits for mining, the implementation of forest diversion procedures and the CA commitments of specific projects such as mines, dams and industrial plantations. The early hearings of the case revealed the extent of forest violations, especially related to the CA clauses of the FCA. It was evident that the centralized implementation had failed to arrest and mitigate forest loss. The centralized regime was also under challenge from legislative processes for decentralized natural resource governance. In this context, the judiciary stepped in.

The Supreme Court intervention was seen as an example of bold activism by the judiciary to take charge of the long-standing problems of deforestation and illegal logging in India (Dutta & Yadav, 2007; Sanctuary Magazine, 2003, p. 7). The court’s approach also attracted criticisms from legal scholars. Rosencranz et al. (2007, pp. 1–11) argued that the Supreme Court intervention in this case was a ‘breach of constitutional boundaries’. Others have described its engagement into this interminable case with little institutional support as ‘judicial adventurism’ (Chowdhury, 2014, pp. 177–189; Rosencranz & Lele, 2008, pp. 11–14). Thayyil (2009, pp. 268–282) pointed to the use of ‘continuing mandamus’ as a tool ‘to ensure that the state agencies report back to the court on a periodic basis’, hence allowing the court to take on ‘the roles of an adjudicator, administrator and a legislator all rolled into one….’ Many argued that the case brought sweeping changes to a range of land and forest policies in India and affected communities, regions, sectors, projects and regulatory procedures (Kohli & Menon, 2014, pp. 261–296; Rozencranz & Lele, 2008, pp. 11–14; Sarin, 2005, pp. 1–26; Sahu, 2008, pp. 1–23).

Through this case, the judiciary reordered the messiness and complexities of forest management practices into discrete expert policy categories. The data and cases presented to the court pointed to fundamental issues regarding the political ecology of forests in India. However, the judiciary and the expert processes under it interpreted these merely as gaps in the implementation of forest laws. This mode of evaluation by the court re-established the forest department as the legitimate institution to monopolize the role of forest manager.

New Policies for Regulating Forest Loss

The Godavarman case showed that forests in large parts of the country, especially India’s north-eastern state of Arunachal Pradesh, central Indian states and the Western Ghats region, were being diverted for non-forest use for timber felling, mining and other industrial purposes. The Supreme Court was inundated with intervention applications. It set up state level High Powered Committees to deal with these and to monitor the implementation of their orders¹¹. In May 2002, the bench constituted the Central Empowered Committee (CEC)¹². It comprised five male high-ranking government officials and wildlife conservationists. Unlike the earlier court-appointed committees, the CEC’s domain was national in scale. This committee had a wide remit to monitor the implementation of all orders in the Godavarman case, bring cases of non-compliance before the court, ‘including in respect of encroachment removals, implementation of working plans, compensatory afforestation, plantations and other conservation issues.’ (Supreme Court of India, 2002). The court and CEC’s treatment of the concerns regarding forest management debacles led to important policy solutions that included the calculation of net present value (NPV) of forest loss (CEC, 2002, pp. 1–14). The NPV was to be deposited in a centralized compensatory afforestation fund that was already set up by the court. Together these policies constituted the financialization of India’s forests.

The CEC recommended the introduction of the NPV as an additional cost charged to those seeking forest diversions. The committee considered the introduction of NPV to be a crucial correction to the compensatory afforestation mechanism already in implementation in the forest diversion processes under the FCA. It envisaged the NPV as a compensation ‘for the loss of tangible as well as intangible benefits flowing from the forest lands which has been diverted for non-forest use…’ (CEC, 2002, pp. 1–14). The CEC observed that the amount recovered can be used for ‘undertaking forest protection, other conservation measures and related activities Nkansah’ (CEC, 2002, pp. 1–14). The amicus curiae in the case recommended that NPV should be calculated on the basis of the economic value of ecological services lost over a period of 50 years.

The CEC relied on the prevailing practices of charging NPV in Madhya Pradesh, Chhattisgarh and Bihar. The CEC recommended the Madhya Pradesh and Chhattisgarh model where NPV was calculated in the range of ₹0.58 million to ₹0.92 million per hectare based on the density of forest land. It recommended that such norms could be laid out for all other states without throwing any light on the experiences and challenges of implementing NPV in these states. The CEC argued that there is a general consensus between states, UTs and the central environment ministry, that this additional fund should be recovered from user agencies seeking forest diversions. Following the CEC’s 2002 report, the discussions in court on NPV were mostly regarding who should pay and how much for forest diversions. Between 2002 and 2005, the amicus curiae sought the bench to allocate dedicated time to address questions regarding the ‘basis of the calculation of the NPV’ that the court had left for ‘later at an appropriate stage’ (Supreme Court of India, 2005). It was not till 2007, that another report of the CEC laid out a more elaborate calculation for NPV.

Within two months of the CEC’s recommendations, the Supreme Court directed that the NPV be charged for all forest diversion approvals with immediate effect. The court ‘presumed’ that the lack of response from the state governments to the CEC report was an admission of their approval (ibid). With this observation, the forest bench wrote in the requirement of NPV as an additional fund charged for non-forest use of forests into forest law and policy. On 26 September 2005, the Supreme Court issued what is popularly known as the NPV judgment. The judgement officially defined NPV in this context as ‘the present value (PV) of net cash flow from a project, discounted by the cost of capital’. In other words, NPV was understood as the monetary value of forest ‘services’ lost to the public due to forest diversion. In this judgment, the court allowed for the upward revisions of NPV rates as and when required.

Through the above policy, the court created an odd hybrid concept that brought together the environmental legal principle of ‘polluter pays’ it was familiar with and the approaches in ecological economics models, called ‘payment for ecosystem services’ (PES). The former is a tax or a penalty to disincentivize environmentally damaging actions while the latter was largely understood as a set of government or donor schemes or measures to incentivize certain actions behaviours and practices seen as environmentally positive. The concept of environmental or ecological services aimed to bridge ecology, society and economics. Though used as a term since the 1980s, it was only after 2000 that it got incorporated into environmental policies, even though its usage was fraught with conceptual differences over its definitions, principles and measurements (Braat & de Groot, 2012, pp. 4–15; Dempsey & Robertson, 2012, pp. 758–779).

The NPV judgment may have been one of the earliest efforts in India ‘to bootstrap ecosystem services markets into existence’ (Robertson, 2007, pp. 500–526). The practical application of ecological economics through PES frameworks to advance optimum utilization and efficient redistribution of natural resources in the economy centres on the valuation of nature by reducing it to a set of discrete ecosystem services that are mostly important to human societies. The casting of nature as a bundle of ecosystem services is not just descriptive but constitutive of new natures. It enables to ‘isolate, render fungible, price and swap constituent pieces of non-human nature’ (Bigger & Dempsey, 2018, pp. 25–75).

The NPV became a mechanism of fixing the exchange value of particular forest services in India. It was expected to work as a trade-off mechanism that enabled the replacement of lost forest services in one area with new ones in other areas. This legitimized the continued extraction of existing forest resources on the one hand, and incentivized the creation and maintenance of forest enclosures with high conservation value on the other. Through NPV, the forest bureaucracy was enabled to treat forests as monetizable assets in both extraction and conservation projects. In effect, the financialization of forests through NPV rendered all forest ecosystems marketable.

As Robertson (2007, pp. 500–526) observes on the role of price in neoliberal economic theory, the questions around valuation and pricing of non-market public goods ‘is a moment of significant tension within neoliberal practice’. The CA and NPV orders instituted a uniform format of charging costs for forest diversion for public sector mining projects initially, but as this evolved into a comprehensive policy for both public and private sector, it came under question. A number of applications were filed by dam builders and miners seeking exemptions from NPV. In response, the Supreme Court’s September 2005 judgment recorded, ‘It is for the experts to tell us as to what NPV should be applied in case of mines and different types of forests.’ (Supreme Court of India, 2005)

This task was handed over to a three-member expert committee headed by Dr Kanchan Chopra, an economist based at the Institute of Economic Growth, New Delhi. The court drew attention to her earlier research related to economic valuation of biodiversity in Keoladeo National Park (Chopra, 2004, pp. 86–121) and referred to this study in its judgment. The Chopra committee submitted its report to the Supreme Court after five regional consultations and inputs from ecologists, foresters and legal experts on the relevant parameters, definitions and methodologies of forest valuation (Chopra et al., 2006, pp. 1–20). This report suggested some significant departures from the CEC’s approach to NPV.

The Chopra committee attended to the importance of the geographical, biological, ecological and social aspects of forests in calculating and implementing NPV. It foregrounded the need to democratize forest regulation. It suggested that public hearings should be organized so that the intention to divert a forest is made transparent by the forest department. It recommended ‘a twelve-step process’ which included identifying the existing claims of rights, privileges and concessions of forest dependent people that would be affected by the forest diversion. This committee articulated NPV as ‘a compensation payable to stakeholders for diverting forest land to non-forest uses’. The committee argued for exempting certain kinds of public welfare projects such as schools, hospitals, municipal water supply, relocation of villages from notified protected areas and housing for rehabilitation of tribal communities, from NPV. It recommended 90% exemptions for wind energy projects that require ridge forest lands, and none at all for mining projects.

The Kanchan Chopra committee was set up because the arbitrariness in the NPV policy was challenged by those who were meant to pay NPV for forest diversion approvals. The Chopra committee did not question the concept and need for NPV, but their report offered the only counterpoint to the court-driven design of the policy. Their recommendations indirectly acknowledged the complex underlying issues that the Godavarman case had papered over. Who is the owner of the forest and therefore who should be collecting the costs of diversion? What democratic processes should precede the decision of diverting public ecological assets such as forests? How and why should the diversity of forests and forest uses be incorporated into forest valuation? How should forest regulation policies distinguish between public interest and profit- making projects? These questions remained unaddressed in court. Since the core institutional and ideological challenges facing forest regulation were kept apart from the NPV proceedings, the court discourses remained at who would pay and how much.

Between 2006 and 2008, the CEC filed two more reports before the Godavarman bench. These reports differed from the Chopra committee recommendations on the calculation of NPV rates and the nature of exemptions. A new classification of forests and their ‘eco-value’ was arrived at by them in consultation with a new set of economists. The NPV was now to be calculated on the basis of eight types of goods and services that may be lost due to forest diversions. These included values of loss of timber and fuelwood, non-timber forest produce (NTFP), fodder, eco-tourism, bioprospecting, ecological services of forests, flagship species and carbon sequestration. The CEC also suggested that forest diversion should be avoided in areas legally protected for wildlife conservation. In cases where the transfer to non-forest use was ‘exceptional and totally unavoidable’, then ten times the NPV in the case of national parks and five times in the case of sanctuaries should be levied.

Table 1.

Calculation of NPV Rates Based on Eco-Value Class and Forest Types Designed by the CEC

Eco-Value Class and Forest Types	NPV Rates per Hectare in ₹
Eco-Value Class and Forest Types	Very Dense Forest	Dense Forest	Open Forest
Class I (Consisting of Tropical Wet Evergreen Forests, Tropical Semi Evergreen Forests and Tropical Moist Deciduous Forests)	10,43,000	9,39,000	7,30,000
Class II (Consisting of Littoral and Swamp Forests)	10,43,000	9,39,000	7,30,000
Class III (Consisting of Tropical Dry Deciduous Forests)	8,87,000	8,03,000	6,26,000
Class IV (Consisting of Tropical Thorn Forests and Tropical Dry Evergreen Forests)	6,26,000	5,63,000	4,38,000
Class V (Consisting of Sub-tropical Broad Leaved Hill Forests, Sub-Tropical Pine Forests and Sub Tropical Dry Evergreen Forests)	9,39,000	8,45,000	6,57,000
Class VI (Consisting of Montane Wet Temperate Forests, Himalayan Moist Temperate Forests, Himalayan Dry Temperate Forests, Sub Alpine Forest, Moist Alpine Scrub and Dry Alpine Scrub)	9,91,000	8,97,000	6,99,000

Source: Supreme Court of India Order dated 28 March 2008 in W.P. (C) 202/1995.

The court accepted these recommendations, stating ‘We are of the view that the NPV now fixed is more scientific and is based on all available data.’ This established the revised rates for NPV calculation. The maximum NPV for class I and II or very dense forest was ₹1.043 million per hectare. The minimum rate fixed for class IV or open dense forests was ₹0.438 million per hectare. These rates would be valid for a period of three years after which the rates could be revised based on consultations between the Environment Ministry and the CEC. This form of price setting by the highest court was unprecedented and left many questions, including those raised by the Chopra committee, unaddressed. The court and expert committees had relied extensively on classificatory logics that they hoped would help to manage forest resources efficiently and profitably. A synoptic and standardized view of forests by the judiciary enabled their greater marketability (Porter, 1995, pp. 3–8; Scott, 1998, pp. 9–53).

A New Political Ecology of Forests

India’s state forest regulation was a messy management of the internally connected logics of capitalist production and conservation. Faltering implementation of this regulation created injustices, anxieties and challenges for a range of actors connected through forest management regimes. Even though the world over public participation has become a threshold condition for good environmental governance (Pieterse, 1998, pp. 343–373), forest regulation under the FCA did not involve the public at any stage until 2009¹³. The Judiciary stepped in to resolve the regulatory problems but kept out the main ‘stakeholders’ of forest ecologies, the communities residing and working in forest areas. The centralization and expert biases in court-led policymaking through the Godavarman case reinstated older dynamics of colonial and post-colonial forest management. It also politicized issues of resource governance in new ways.

For the time the CEC was involved in designing NPV, it functioned as a parallel executive. The CEC’s functions were to be assistant and advisor to the Supreme Court in all these matters. The court processes not only invested extraordinary power in the CEC but also bestowed upon this expert group a halo of rationality (Boyer, 2008, pp. 38–46). The court’s faith in the CEC resulted in the enforcement of NPV even before it was defined and its consequences argued through.

An analysis of the CEC’s composition, its meetings and reports illuminate the legitimization of particular forms of expertise by the court in this case. The CEC members were foresters and wildlife conservationists. Their reports were largely based on discussions with members of the state forest bureaucracy, pointing to a ‘politics of partnership’ between policymakers and policy implementers (Mosse, 2004, 639–671). The consensus on the issue of valuation of forests to be diverted for large projects was forged on the pragmatic approach of mutual benefit. State forest departments stood to gain large-scale funds generated through the new valuation policies, while the CEC gained prominence as the rational generator of policies.

This politics of environmental knowledge making, where experts spoke to experts, resulted in formulaic solutions to the messy challenges of forest regulation in a neoliberal economic regime. Their logics were not contested in the court rooms as these views were acceptable in the cultures of expertise on forests held and promoted by environmentalists and economists of privilege and power in Indian society¹⁴. In court, the resistance to NPV came only from those who were expected to pay.

The Godavarman case and the role of experts in the adoption of new policies of forest valuation offer an understanding of the processes of the ‘coproduction of neoliberalization and socio-natures’ (Bakker, 2010, pp. 715–735). Through the Godavarman case, the judiciary played a key role in the marketization of forest ecosystems, while state forest departments facilitated its ‘roll out’. The reregulation of forests through the discourses of environmental services and new forms of valuation of forests ecosystems legalized transactions and greater appropriation of forests for neoliberal capitalist accumulation. As Lohmann (2019, pp. 32–63) states, these new forms of regulation involved the reorganizing of legal concepts from commons friendly to capital friendly. CA and NPV are now attached as a financial package with nearly every application for forest diversion.

With the monetization of forests, the state became more vested in maintaining control and trading forests. The growth in the scale and nature of forest diversions approved by the state forest departments from the early 2000s underscore the role of the state institutions in forging the ‘vertical integration of nature into capital’ (Smith, 2007, pp. 16–36). Sahu et al. (2021) show that when CA was being handled at the state level prior to the implementation of the court’s orders, the funds collected were very small. It was to the tune of ₹150 million from 1990 to 1999 (ibid). However once the court’s orders on NPV were put into effect, the consolidated funds grew to over ₹110 billion in 2009 (Government of India, 2009). By January 2019, the fund collections were over ₹546.85 billion (MoEFCC, 2019). Lele observed that NPV ought to have been charged only after the normative decisions on whether forest diversion is to be permitted are taken. Now diversion decisions essentially operated on a ‘pay and convert approach’ (Lele, 2012, pp. 102–124).

The new policies once again hit against the limits of land and produced greater illegalities in neoliberal forest management. The forest regulators continued to struggle to find land for afforestation in order to comply with the conditions for disbursal from the centralized fund. In its 2013 report, the Comptroller and Auditor General (CAG) found that only 27% of non-forest land had been received in place of diverted forest land and afforestation covered only seven per cent of this. State and central governments developed guidelines for the creation of land banks to secure the supply of land for afforestation in advance of forest diversion approvals¹⁵. As observed by Ghosh and Lohmann (2019, p. 3), these new products called compensatory forests were unsuccessfully assembled and their goods and services were no longer freely available to all.

The Godavarman case had a profound impact on the lives of Adivasis, Dalits and other communities engaged in forest-based livelihoods in India as it did not recognize them in forest regulation. In the judicial proceedings on NPV, the questions of their historical community rights over forests were completely left out. These outcomes were not very different from the forest reservation policies of the colonial administration. The revenue-centric colonial governance had also enacted laws that took over areas under customary use as state property. As Sundar (2012, pp. 23–32) observes, what is business as usual for the state is ‘violence as usual’ for these communities. State actions, in urban and rural areas, to depopulate and dispossess people living and working in forests and other ecologically significant lands invoked the Godavarman case orders. In one particular instance in October 2002, at the suggestion of the amicus curie, over 0.3 million Adivasis, seen as forest encroachers by law, faced being ousted from 0.12 million hectares in massive eviction drives undertaken by the departments (Dreze, 2005, pp. 1–26).

The Godavarman case energized greater national mobilization of the people who had been excluded by the court. This culminated in the enactment of the historic Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (or FRA). Although the forest communities involved in this process aspired to end the dominant control of the forest departments in forest governance, their political negotiations resulted in setting up a legal process to recognize Adivasi people and other forest communities in many regions as potential property rights holders of forest land. The permissiveness of state governments to grant forest diversion approvals is yet to be tempered by the new procedures of the FRA such as the need for gram sabha (village council) consent prior to forest diversions and forest claims are routinely rejected by the FRA authorized institutions, leading to open conflicts.

The Supreme Court has continued to hear matters under the Forest case with the assistance of the CEC. The committee underwent a change in composition in 2007, and then again after the retirement of the Member Secretary, Mr. Jiwarjka, in 2016 (Supreme Court, 2016). The Green Bench convened less frequently after the weekly hearings of the 2000s. In 2015 (Supreme Court, 2015), the Bench distributed its cases and sent a whole bunch to the recently set up National Green Tribunal, those related to wood-based industries to state-level committees and some policy matters to the central environment ministry (Supreme Court of India, 2015).

Conclusion

This article analyses the judicial processes that led to the financialization of forests in India through the conceptual lenses of neoliberal natures and anthropology of expertise. The legal and expert apparatus, processes and discourses on NPV of forests were based on the contradictory logics of green neoliberalism. The judicial approach to compensatory and financialized forest offsets assumed that a balance could be struck between continued diversion of forests for extractionism and regenerating forests. The lasting legacies of the Indian judiciary’s ‘adventurism’ in forest governance are the legitimization of exclusionary forms of extraction and conservation that are detrimental to ecology and society.

The forest case also engendered a greater politicization and activism over the opaque, expert regulation of forests. Conservation models that treat forest ecosystems as fungible commodities have been seen as public failures and incompatible with social and environmental justice. Emerging socio-ecological movements to save forests from neoliberal state regulations are redefining the social importance of forest ecologies in new ways. They establish that the project of forest restoration in India is a genuine need. But it deserves to be approached as a project of restoring the environmental commons and not as an elite and exclusive domain outside the realm of rights, needs and attachments.

Footnotes

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The authors received no financial support for the research, authorship and/or publication of this article.

Notes

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