1056-B4

Joint Forest Management in India: the Unaddressed Legal Issues

Atul Jindal ¹ R K Upadhyaya ² V. K. Varma ³

Abstract

The forest policy in India has undergone major changes leading to increased involvement of the forest dependent communities in sustainably managing the forest resources on which they depend. The process of moving from complete government control to decentralised, community-based collaborative approaches needs a clear definition of the `end result' which in turn should be in tune with the legal framework involving forest ownership. In India, the joint forest management approaches lack such clarity of definition. It gives rise to institutional developments often in conflict with the aspirations of the communities involved.

During implementation of the strategies for successful participatory management, the issue of the granting `rights' to the community over the community-managed resources has to be satisfactorily addressed. Accordingly the policy tools are required to address the needs of community with regard to the `ownership' of the forests in legal terms. The decentralised governance for sustainable management of the forest resources needs transformation from collaborative servitude to ownership of the stakeholders. This paper discusses these issues in detail with particular reference to India. It analyses the status of the joint forest management of the various categories of the forests that evolved through various policy tools and strategies relying on community participation. Based on this analysis, it argues that success of the management of forests through community partnership depends on the level of the ownership of the forests vested in the stakeholders. This may lead to more sustainable management and utilisation of the forest resources in India.

Introduction

The management of natural resources in India has primarily addressed the concerns for biodiversity and environment conservation while attempting to meet the livelihood need of the rural people (TERI1998). The challenge to meet gap between the demand for fuelwood, fodder, timber and non-timber forest products and physical availability of the resources required has necessitated a reorientation in the forest policy framework with increased stress on the participation of the forest dependent population. Since 1990, it has led to the approaches based on participatory management to achieve sustainability of the resources. At the same time, the policy instruments in India have also undergone changes manifested through the reorientation of national forest policies enunciated in the years 1894, 1952 and 1988(NFP1894,1952,1988). The community and partnership processes in forest management in India have evolved with a great emphasis on the relationships between man and the forests. However, meaningful community participation entails adequate institutional support with legal strength. Through various changes in policy guidelines at the national level, the institutional framework has evolved to a stage where issue of moving from servitude to ownership rights has become critical to the success of the participatory approaches to manage forest resources sustainably.

The basic legal framework

Since the statement of forest policy of 1894, the management of the forest resources has been backed by adequate legal framework. It envisaged classification of the forest resources with ownership vested in the government institutions. Following the strategy of Joint Forest Management (MoEF1990), various states have adopted the guidelines with suitable modifications according to the local needs. The Government of India has issued guidelines for providing the legal support to Joint Forest Management Committees by making mandatory to register all the Committees as Societies under the Society Registration Act 1860 (MoEF 2000). These Committees numbering about 63,618 cover 10.095 million hectares of forests in India (IIFM 2002). Implementation of these guidelines is compulsory in terms of Coimbatore Charter of Forest minister's Conference held in 2001 (MoEF2001).

The question arises whether the success of management of the forest resources would be achieved by reorientation of the management strategy towards devolution of the authority to forest dependent communities without the consideration of the ownership of the forest to the communities. Ostrom has analyzed in detail the issue of private versus common property rights with respect to sustainability of natural resources (Ostrom 2000,). Following five property rights are most relevant for the use of common pool resources:

• Access: the right to enter a defined physical area and enjoy nonsubtractive benefits (e.g. sun, canoeing hike)
• Withdrawal: The right to obtain resources units or products of a resource system (e.g. fishing, divert water)
• Management: The right to regulate internal use pattern and transform the resources by making improvements
• Exclusions: The right to determine who will have the access rights and withdrawal rights and how these rights may be transferred
• Alienations: The right to sell or lease the management and exclusion rights

The property rights defined above relate to individuals or collectives. The bundle of rights associated with the position is given below (Table 1).

Table 1 Bundles of Rights Associated with Position

Following legal terminology, following definitions are given:

• Ownership: It may be regarded as an aggregate or bundle of all possible rights, which together make upon absolutely unrestrained enjoyment. The absolute ownership is also known as "dominus" or "full owner". The owner has the right to use the whole of the products, the rights entirely to consume, and the rights of transferring or alienating at pleasure.
• Servitude: If a certain right to use some of the produce or to do something or have something done were, so to speak, broken off and separated from the total of rights that make up full ownership, such a separate right is known as "Servitude".

From the above, it is obvious that while ownership represents one extreme, servitude cover a wide range of combination of rights.

Ownership: a necessary condition for sustainability?

In India the idea of ownership for the success of Joint Forest Management has been debated for quite a long time. The question addressed is, whether ownership is required for community for success of JFM? The sole objective of managing public forests is public benefit. In some cases the public to be benefited is the whole body of taxpayers. In others, beneficiaries are the people in and around the forests. In almost all cases, the constitution of rights, and restriction of privileges of forest dwellers, who were the inhabitants of its immediate neighbourhood prior to regulation of forests. These regulations and restrictions on the rights and privileges of forest dwellers are justified only when the advantage to be gained by the public is great. The cardinal principle is that the rights and privileges of individuals must be limited otherwise than for their own benefit, only to such a degree as is absolutely necessary to secure these advantages.

The changes in law for the successful implementation of the joint forest management are required when the importance of the ownership of the common pool resource is considered as a tool for participation. At the same time it is to be ensured if ownership of the forest are to be vested in the communities, it should be in the hands of the well intentioned people as shown by the studies in India (Shackelton2002). A strong political will is also required to implement the decentralisation process effectively (Lele 2000).

A historical perspective

In Indian context the issue of legal framework for the ownership has been dealt with very deeply (Baden-Powell 1882, Fitzgrald1966,Singh 1986). For an analysis of ownership and rights admitted three National Forest Policies are analysed in the following paragraphs.

According to the 1894 Forest Policy, the bulk of forest ownership remained with government and very limited ownerships were given to community, particularly in `Fourth Class Forests', which were also classified as `Pasture Land'. The 1894 Forest Policy classified the entire forest into following categories (Table 2). On the other hand, the 1952 National Forest Policy envisaged that the forests were owned mainly by government, and sometimes by individuals. But there was clear attempt to bring private forests under the control of government. The 1952 National Forest Policy says with regards to private forests that the owners of private forests should in the first instance, be given an opportunity to manage their forests in accordance with an approved Working Plan. It further says that, in case the owners of private forests are tempted to sacrifice their capital for immediate gain, the management of their forests should be made to rest in government by due process of law. Hence this is a clear attempt to bring privately owned forest under the ownership of government. Even before this policy, under Indian Forest Act 1927, there was a provision to bring private forests under the control and ownership of government (Sections 35 to 38). Thus, only servitude (limited rights to use) was provided to community in certain class of forests only. The 1952 National Forest Policy classifies the forests in four categories (Table 3):

Table 2: Status of ownership and right in 1894 Forest Policy

Table 3: Status of ownership and right in 1952 National Forest Policy

There is no major drift in concept of ownership and rights in 1988 Forest Policy in comparison to 1952 National Forest Policy. The ownership of forest largely vests with government and certain rights have been provided to tribal population and local community in form of the National Forest Policy 1988 to ensure environment stability and maintenance of ecological balance. Forests are to be treated as national asset and safeguarded for providing sustained benefits to entire community. It also emphasizes that the rights and concessions should be related to the carrying capacity of forests. Hence, 1988 Policy places further restrictions on servitude provided to community.

The 1988 Forest Policy however encourages providing certain ownership rights over trees grown in village and community land for persons belonging to weaker sections of society e.g. landless labourers, small and marginal farmers, scheduled castes and scheduled tribes. It also lays emphasis of ownership of forest in favour of government only. Certain rights and concession have been recognized which recognizes symbiotic relationship between tribal people and forests. Policy says about involving tribal population for protection, regeneration and development of forests as well as to provide gainful employment to people living in and around the forests. Therefore, the 1988 Forest Policy also does not recognize ownership over forest either for community or individuals residing in and around the forest. Table 4 shows the rights and ownership enunciated under the 1988 National Forest Policy.

Table 4: Status of ownership and right in 1988 National Forest Policy

Status of ownership and rights in the various parts of country

In majority of the states, JFM is implemented through government order/ guidelines /resolution or instruction, except the state of U.P. where States Legislative Assembly has passed JFM Rules (Anonymous1998 TERI,1998a). On analysing the government order/resolution passed by the various State Governments, it becomes obvious that none of the State Governments favours giving ownership to community over forest. It provides mainly servitude (limited right to use or share benefit over limited period of time). Table 5 provides at a glance the position of ownership and right provided to community over forest under JFM in various states of country.

Hence from the above analysis and comparison, it is clear that no State has given any kind of ownership rights over forest. The various State Governments have only developed a mechanism of benefit sharing which is also conditional. Hence in legal terms this cannot be called as `servitude' for community where the condition is imposed on the exercise of servitude. In other words the ownership of the forest resources is vested with the government although the policy statement has imperatively emphasized the need to address the issue of ownership of the forest to communities during the progressive forest policies.

Out of twenty-two States of the country where JFM is being implemented, Arabari (West Bengal) experiment is the pioneer, which is running into rough weather on account of ownership issues. In this particular case, more than 2,000 villagers have approached various Courts of law claiming ownership over forest regenerated through their efforts. It is therefore critical to create a legal framework for the communities and demarcate the line between ownership and servitude

Table 5. Status of ownership right under JFM in various Indian states

Conclusions

From the analysis presented above, it is clear that that community-oriented forest management approaches lack in clear legal definition of goal with respect to ownership or servitude. This however is considered critical for the success of collaborative approaches. The efforts to involve community thus appear to be ineffective. This paper clearly describes the status of ownership issues in various parts of India. The government-initiated efforts to involve local communities thus fall short of the basic requirements for sustainability of forest resources. There is an urgent need to address the issue of ownership in community-based management approaches for forest management and the issue of co ownership or conditional servitude may be taken as the experimental approach for the successful implementation of the participatory management of the forest resource by changing the past role of regulation to the participation.

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Baden -Powell, B.H. 1882, Jurisprudence for Forest Officers, Government Printing Press, Calcutta. India ,1-11

Fitzgerald, P.J., 1966. Salmond on Jurisprudence,Sweet &Maxwell,London, 246-264

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¹ Associate professor
Indira Gandhi National Forest Academy
P.O. New Forest
Dehradun -246008
India
Phone: 91 135 757316Ext 216 (Work)
91 135 773829 (AH)
91 135 757314 (Fax)
Email: [email protected]

² Professor
Indira Gandhi National Forest Academy
P.O. New Forest
Dehradun -246008
India
Phone: 91 135 757316 Ext 202 (Work)
91 135 763394 (AH)
91 135 757314 (Fax)

³ Deputy Conservator of Forest
Ministry of Env. & Forests
73, HOPE Apt, Sector 15 Part II
Gurgaon (Haryana)
India
Phone: 91 124 6390379
E-mail: [email protected]