Judicial fiats and contemporary enclosures

Abstract

This article examines the problematic processes in a case that has had few parallels in Indian judicial history. The apex court in T. N. Godavarman took upon the responsibility of deciding how forest resources in the country should be accessed and who is (or is not) to have such access. Purportedly done to protect the environment, through the 'clarifi cation and fi ne-Tuning' of national forest-laws, the case has seriously affected the life, livelihood, and habitat of millions of marginal groups. Recent trends demonstrate the wider trend of constitutional courts assuming the roles of adjudication, administration and legislation, all rolled into one, whereby they become problematic sites for creating a hierarchy of confl icting public interests, which claim constitutional validity from different vantage points. Thus, constitutional values of 'protection of environment' and 'justice-social, political and economic' 'are pitted against each other' where unelected courts take it upon themselves to defi ne the legitimate precincts of the theoretical discourse of sustainable use / development; and importantly also implement it into 'everyday' 'reality, in the way it feels fi t'. The article seeks to make sense of this contemporary process of forest governance.