A National Law for Urban Trees

In 1974, Christopher Stone in his essay “Should Trees Have Standing?” argued the need to recognise the legal rights of nature in general and of trees in particular. After more than four decades, legal rights of nature are being recognised in some jurisdictions. Rivers were recognised as legal entities by the courts in India (Mohd Salim v State of  Uttarakhand 2017)¹ and through legislation in New Zealand (that is, through the Te Awa Tupua [Whanganui River Claims Settlement] Bill 2017).² In 2014, the Supreme Court of India recognised that even “animals have dignity, honour and their rights to privacy must be protected from unlawful assault” (Animal Welfare Board v A Nagaraja 2014).³ Ecuador became the first country in the world to constitutionally recognise the rights of nature by stating in its Constitution that “nature has the right to exist, persist, maintain and regenerate its vital life cycles, structures and its processes in evolution.” The recognition of “rights of nature” is particularly relevant in view of the increasing threats to nature across the world, including India. The last few years have seen increasing assault on nature across India, and trees in particular have been the victims of India’s obsession with increasing its physical infrastructure. Even legally protected areas such as national parks and sanctuaries have been direct victims of this massive increase in infrastructure (Bindra 2018).

The recent controversy in New Delhi over the felling of a large number of trees for the redevelopment of government colonies is an epitome of the key concerns with tree preservation laws (Menon and Kohli 2018; Pillai 2018). The felling of thousands of trees, which formed an integral part of the city’s identity and a repository of its biodiversity, was allowed to make way for commercial and real estate development (Sinha 2018). There was no objective consideration of the ecological impact of such felling of trees. Though the law contemplates an inquiry by the tree officer for every individual tree to be felled, permissions were given without any inquiry. One standard approach has been to stipulate that trees will not be felled but transplanted. However, a committee of the forest department of the Government of Delhi⁴ clearly concluded that transplanting of fully grown trees in Delhi is not possible. The grown-up translocated/transplanted trees of most species are highly sensitive as the edaphic factors change, and due to the entailing extreme shock conditions for the root system of trees in a hot and dry climate like Delhi. Despite this reality, approvals continue to be granted based on the false notion that trees can be transplanted or that compensatory afforestation will be carried out.⁵