Indian Wildlife Club Forum

Some of the other glaring inconsistencies are:

            Rule 3 ( 1 ) defines the Gram Sabha. But the definition needs to strictly conform to the Constitutional provisions. It may be borne in mind that the provisions relating to thew Scheduled areas are restricted to only 2278 of the 15694 forested villages in the State. The Seventy-third Amendment empowers the Panchayat and not the Gram Sabha. The Bombay Village Panchayats Act, 1958, which was amended in 2003 to incorporate greater role for Gram Sabhas, deals with this issue differently. The expression,“Adult members” does  not find a mention in the Constitution. Instead, the Constitution mentions Gram Sabha as “a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level.

Rule 3 (2) prescribes functions of the Gram Sabha under the Act, which, as per the Constitution, is a duty cast upon the State Legislature.

            Rule 3(4) prescribes for constitution of Sub Divisional Committee. Under Clause ©, it includes – The Forest Officer in charge of a Subdivision. This needs to be changed as this designation  may not exist universally. An ACF or SDFO would be a better proposition.

            Rule 4(1)(a) seeks to define “family” as mentioned in Section 4(6) of the Act. But, the definition appears to be at variance with provisions of Section 4(4) of the Act. The concept of more than one wife and that of dependent persons other than minor children seeks to expand the scope of claim as to a forest right. There is a need to restrict this definition.

            Rule 4(1)© also appears to overshoot the provisions of the Act in providing that “in case of community rights to land, the entire  area under actual use may be recognized and vested with the community.” Section 4(6) on the other hand, unambiguously provides that “where the forest rights are recognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of sub-section (1) of Section 3 such land shall be under the occupation of an individual or family or community, on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.” In Bhamragarh Forest Division, 35 tribal families are practicing shifting cultivation over 10,000 ha of forest land. The Forest Department of Maharashtra does not admit existence of shifting cultivation in the State. If the draft rule’s provisions are allowed to go unchallenged, the department stands to lose 10,000 ha of thick forests @ about 280 ha / family!

Comments by Ashok Sharma I.F.S

SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS

( RECOGNITION OF FOREST RIGHTS ) RULES, 2007 

Of the 43711 villages in the State, 15694 are forested. The forested villages have a population of over 24 million which accounts for about 25% population of the State. There are 353 tehsils in the State, of which 27 are located in the Scheduled Areas, where 9.1 million tribal population of the State lives. The draft rules have the potential to cause  major adverse  impacts on forests and wildlife in the State, specially in light of the Constitutional provisions which many of these rules seek to override.

The Act defines “community forest resources” as customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Pars to which the community had traditional access. However, Atricle 243G, which empowers Panchayats and not the Gram Sabha, to plan and implement village level schemes, does not include the same in the Eleventh Schedule, i.e. the Village List! The Provision of the Panchayats ( Extension to the Scheduled Areas ) Act, 1996 also does not make any exception in this regard. Obviously, the Constitution does not envisage extending the powers of Panchayats beyond the Village limits.  The  Provision of the Panchayats ( Extension to the Scheduled Areas ) Act, 1996, introduces the role of Gram Sabha in the village administration. The instant Act and the draft rules, however, seek to extend purview of the The  Provision of the Panchayats ( Extension to the Scheduled Areas ) Act, 1996 to the non Scheduled Areas too!

The Eleventh Schedule incorporates “maintenance of community assets” it item no. 29. However, it remains to be clarified whether this includes “community forest resources” per se. Although, the Indian Forest Act, 1927, as applicable to the State of Maharashtra, does not define “community forests”, it does provide, under Section 28, for the constitution of “village forest” But, such village forest also is limited to the boundaries of the village Panchayat concerned. “Community Forest” is also not defined either in the Act or in the Draft Rules.

Similarly, the Constitution empowers the State Legislature to powers of Panchayats / Gram Sabhas, for the Scheduled and other areas. Can this power  be over ridden by a set of Rules, made under a Central Law? The draft rules seek precisely to do so which appears to be going beyond the Constitutional provisions.

The Draft Rules introduce certain definitions which are not incorporated in the Act. They include “bonafide livelihood needs”, “claimant’, ‘fixed demand holdings”, “forest rights committee”, “other traditional rights” and “primarily reside in and who depend on forests or forest lands”. Under the definition of other traditional rights, traditional agricultural practices have been incorporated, which is a gross externality.

TIME LIMIT:-

Absence of a time frame for the determination of rights is a lacuna which could result in prolonging the status qou particularly by those individuals/Gram Sabhas who may be loosing out or may not be benefiting by the provisions of the Act. Hence, it is important that a time limit for completing the exercise be imposed in Rules 19, 26 to 29 and 34.

SURRENDER OF LAND/FUTURE ENCROACHMENT

The rules are completely silent on the mode and manner for the surrender of land/rights, which are declared to be beyond the permissible parameters or by those whose claims are rejected.  The rules are also silent on the issue of prevention of future encroachment/ occupation of forestland by the present beneficiaries or by the existing/future members of their families or by others. This pregnant silence carries within it a signal to hold on to illegally occupied forest land and to further encroach on forest lands, keeping in mind the pace of regularizations during the last four decades, that the government at some point of time in the immediate future, for reasons not very difficult to guess, would buckle under and regularize such encroachments. Absence of these twin checks would prove to be disastrous for the forests and wildlife and the ecology of the country.  

Drafted By:

Raj Panjwani,

Advocate.

RULE 16:-

This rule confers rights over ‘disputed lands’ i.e. those forests, sanctuaries, national park lands where the final notification has yet not been issued. Rule 16 (2) shifts the onus of proof on the State by declaring that “the  presumption of rights over such disputed lands shall be in favour of the claimant unless otherwise decided.”. This presumption places the persons in illegal possession of the alleged disputed lands at an advantageous position in comparison to those who are in possession of other forestlands. In the case of persons who are in possession of non-disputed forestlands the onus is on them to prove their possession by producing evidence as enumerated in Rule 31. This classification in favour of disputed land occupiers is arbitrary. Secondly, the term ‘disputed land’ is vague and has not been defined under the Act nor explained under the Rules. Thirdly, the power conferred on the Gram Sabha and other executive bodies to decide on the “non-adherence to due process of laws” in Rule 16 (1) is   contrary to all prevailing jurisprudence. The issue whether an action or order is in violation of the due process clause can only be decided by a judicial authority. It is a judicial function and cannot be conferred on any of the executive authorities created or referred to under the said Act or Rules.

RULE 17:-

The incorporation of the clause “who may have been evicted without due process of law; pattas in forest villages and pattas issued but cancelled or extinguished without following the due process of law” in Rule 17 is illegal for the reasons stated above under Rule 16.

RULE 24:-

Duties and functions conferred under the said Rule are in violation and disregard of the provisions of Part IX of the Constitution and the Panchayats (Extension to the Scheduled Areas) Act, 1996.

RULE 31 (4) (a):-

Admitting the claims of ‘other traditional forest dwellers’ on the basis of physical attributes/traditional structures/pictures would be travesty of justice particularly due to the exclusion of the Evidence Act. It’s a loophole which would lead to wide abuse as there would hardly be any one alive who could possibly vouch on the existence of an un-recorded structure to the effect that it has been in existence for the last over 75 years. A person vouching on the existence of 75 years old structure need to be atleast (75+12 =87) years old. Secondly, pictures by themselves would not establish the 75 plus years antiquity of such physical attributes/traditional structures.

RULE 31 (4) (b):-

The clause “recognized as having been legitimate resident of the village at an earlier period of time” as applicable to ‘other traditional forest dwellers’ is again vague and subject to interpretation which could be either way. It is suggested that proof for recognition of residence should be recorded in a public document and not a private document or oral statements.

(Continued in next post)

Drafted By:

Raj Panjwani,

Advocate.

OBJECTIONS:

RULE 2:-

Parliament by section 14 (1) of the RFR Act delegated the  authority to the Central Government to “make rules for carrying out the provisions of the Act”. Section 14 (2)  of the said Act lists the parameters and purposes for which the rules can be made by the Central Government. The Central Government in the exercise of such delegated  power can not enlarge the scope of the provisions of the main legislation i.e. the Act. The Central Government by defining terms like “bonafide personal needs”, “other traditional right”, “primarily reside in”, “sustainable use” etc. has gone beyond the delegated authority.

RULE 3:-

Gram Sabha cannot be a judge its own cause and decide civil disputes between its own members in as much as all the adult members of the village constitute the Gram Sabha as per Section 2 (g) of the Act. Secondly, the Gram Sabha would be deciding the extent of customary boundary of the village. The term “Customary boundary” in itself is vague and which would lead not only to strife inter se Gram Sabhas but would also devastate the forest areas in issue. Reason possibly could be, each village Gram Sabha in order to out do the other, trying to take the maximum of forest produce from such unchartered imaginary boundaries.

RULE 11:-

Rule 11 (1): Inclusion of “any person wholly or substantially dependent on the family” within the term family is inconsistent with provisions of the Act. It could lead to abuse  for claiming extra benefits under the scheme of the Act.

RULE 13 & 14:-

Minor forest produce, its use and utility is just not limited or exclusive for the   residents of forest areas. The minor forest produce is an integral and a crucial component for the preservation and conservation of the flora and fauna of the area, particularly for areas which are ecologically important e.g. Sanctuaries, National Parks etc. Similarly, is the role and importance of water bodies, the use and control of which has been handed over to the Gram Sabha. There is absence of effective mechanism to monitor the “Sustainable” exploitation of such minor forest produce and water bodies. Keeping in view the provisions of Rule 24 in particular those of Rule 24 (3) which declares that in case of conflict between a decision of a the Gram Sabha and other usergroup e.g. forest or wildlife department, the decision of Gram Sabha shall prevail.

( Contd in the next post)

Drafted By:

Raj Panjwani,

Advocate.

Kalesar National Park ( Declared in 2003), 150 km from Chandigarh, was in news recently for large scale illegal mining of sand by the builder/contractor lobby.  NDTV has done a series on this in July 2007.   The following trip report is taken from the website of Wildlife Trust of India, written in 2002.

http://www.wii.gov.in/publications/newsletter/annual2002/article3.htm

Kalesar – The Pride of Haryana
- Bivash Pandav

The Zero Waste Centre supported by the Kerala Hotels and Restaurants Association, Kerala Tourism and Indian Coast Guards have embarked on a major cleanup drive at Kovalam. The months of February and March have been declared Cleanup Kovalam months.

In one week of cleanup which started January 28th 2004, the regular dumping sites behind the Light House beach, the Samudra beach and the Guest House beach have been targeted. 225 sacks of discarded plastic water bottles totaling more than 37500 bottles in number have been fished out of the ponds, wetlands and private properties. Another 100 sacks containing discarded glass bottles, broken glasses, tube lights and bulbs , other plastics and mostly mucky materials have also been fished out.

Twenty two brands of plastic bottles including the major brands - Aquafina, Kinley, Classic, Bisleri, Golden Valley were fished out in abundance. Earlier in October, Greenpeace had organized a cleanup and symbolically packed and transported sacks of PET bottles to Coke and Pepsi demanding "Extended Producer Responsibility". This time the Cleanup has been very exhaustive and is intended to showcase the need for immediate and serious interventions from all stake holders for stopping this dumping culture and a message to the bottled water companies to take responsibility of this waste.

In the coming weeks shops, restaurants and hoteliers in Kovalam would be supplied with paper bags and paper cups as part of the awareness drive to stop plastic material use. Use of packaged water would be discouraged and water kiosks selling clean filtered water is also being setup.

Link: http://www.thanal.co.in/

Activists have long accused global corporations of being bad environmental citizens. But the problems of climate change and deforestation are part of a larger phenomenon, in which globalization is but one factor among many. As Nayan Chanda, editor of YaleGlobal, discusses in his new book “Bound Together: How Traders, Preachers, Adventurers, and Warriors Shaped Globalization,” international consumer habits drive environmental devastation more so than globalized corporations. As a result, activists’ efforts could be more productively directed at building an international consensus on pollution reduction, environmental regulation and sustainable development.

Powerful new advances in communications technology relay the realities of environmental degradation and natural disasters to the world’s public more quickly than ever before. Activists are the new preachers in a modern world – and the immediacy of technology gives them unprecedented opportunities to convey their message of morality to a global audience. Building powerful movements with online blogs and instant-chat programs, environmentalists must admit that globalization might not be so bad. – YaleGlobal

Nayan Chanda
http://yaleglobal.yale.edu/display.article?id=9366

As global warming continues, natural habitats will change. In theory, animals would move as their habitats became too warm, but due to the pace of global warming, experts worry that some animals won’t have time to adjust and could go extinct.

Conservationists therefore propose building biological corridors, natural spaces connecting habitats, that would allow wildlife to relocate. But people and development block some of the most logical routes. Most wildlife-assistance organizations don’t have the money to buy land, and displaced people would add to environmental destruction.

In Costa Rica, wildlife organizations encourage local residents living along the national park La Amistad to grow organic coffee. The arrangement is environmentally friendly and attracts tourists, bolstering local income. Such local and private efforts are small in scale – and slowing the pace of global warming, protecting biodiversity and a way of life for many communities in any lasting way, requires government action and international cooperation.

Source:  http://yaleglobal.yale.edu/display.article?id=9400