Sanjay UpadhyaySanjay UpadhyaySanjay UpadhyaySanjay Upadhyay

Advocate, Supreme Court of Advocate, Supreme Court of Advocate, Supreme Court of Advocate, Supreme Court of IIIIndia ndia ndia ndia

and Managing Partner and Managing Partner and Managing Partner and Managing Partner EnviroEnviroEnviroEnviro Legal Legal Legal Legal DefenceDefenceDefenceDefence Firm , IndiaFirm , IndiaFirm , IndiaFirm , India

Session K, 13 July 2011Session K, 13 July 2011Session K, 13 July 2011Session K, 13 July 2011

� 1865 Act - ???

� 1878 Act - 1894 Policy

� 1927 Act - 1952 Policy

� ??? - 1988 Policy

� Draft IFA, 1980

Natural Ecosystems Bill, 1994� Natural Ecosystems Bill, 1994

� Draft Indian Forest Act, 2003

� Annexationist School- Complete State Monopoly; Rights as privileges ( Baden Powell)

� Populist School- Forest to be left to the community; reasons of governance ( Brandis)

� “securing permanent supply of timber”

� India’s chequered history of settlement of rights

� Process of reserving forests has been to secure timber supply

� Poor tenure security� Poor tenure security

� Forest bureaucracy dominance (like most developing nations)

� Little space for local participation

� Missed opportunities under “Village Forest”

� 1974: local experiments on eliciting peoples cooperation

� 1988: Policy mandate� 1990s saw the shift through JFM Circular � But soft peddling of issues relating to � But soft peddling of issues relating to people’s participation◦ Weak circular, weak Institutional arrangement and non-binding MOUs- perhaps by design!

� Lack of Settlement of rights in PAs as well: cases of Proposed Reserve Forests, Land Disputes in orange areas, etc. was common

� Supreme Court cases on settlement of rights especially the CEL-WWF India are a testimony too!

� Some states then attempted formalisation of JFM model. Uttar Pradesh, J&K, H.P. and Now JFM model. Uttar Pradesh, J&K, H.P. and Now A.P

� Meanwhile the law on Tribal Self Rule in Scheduled Areas (PESA) came into being –

� Not so effective as the frame was too idealistic

� 1990 circulars issued by MoEF to address some long terms tenure issues, disputed lands, regularisation , conversion of forest to revenue village so that revenue benefits accrue to remote forest villages which themselves were declared unconstitutional.

� Meanwhile Supreme Court came down heavily on � Meanwhile Supreme Court came down heavily on regularisation due to connected deforestation issues.

� The Government then took a stand that historic tenure issues need to be addressed.

� ( Meanwhile several states such as North Eastern States, Jharkhand, MP/Chhattisgarh and Orissa where self initiated processes were taking roots, apart from West Bengal)

� FRA was initiated (ironically and surprisingly) not under MOEF but under MOTA: PM’s decision

� FRA implementation has had mixed results◦ Community tenure and individual tenure◦ Critical Wildlife Habitat v. Critical Tiger Habitat◦ Community Forest Resource management v. JFM◦ Duties v. responsibilities◦ Custodianship v. ownership◦ Custodianship v. ownership◦ Exploring new avenues such as Community Intellectual Property

� Most importantly the statutory synergy that is mandated is most novel and has forced key and secondary agencies to collaborate to scrutinise land claims, and thereby sort out their line distinctions and cater to the forest rights of genuine claimants.

� Never before have four wings of the Government jointly been asked to sort differences and facilitate recognition of claims.

� What should be the post claim strategy?� How do you achieve administrative coordination – as many as ten departments and 30-40 schemes that can influence productivity of forest lands recognized under FRA. FRA.

� How do we secure financial support from micro and macro financial institutions and raising resources for conservation and livelihoods – MOTA and MOEF needs to enable through clear instructions.

� MOTA-MOEF-MOPR-MORD: Can we create an enabling coordinated framework?

� Increasing overlaps amongst them!

� How do we deal with presumptions and assumptions of doubt, control, mistrust?assumptions of doubt, control, mistrust?

� Add to it the Federal and State divide where again there are presumptions and assumptions of doubt, control, mistrust due to the concurrent nature of the subject itself i.e. forests.

� Clearly there are gaps in term of understanding, lack of clarity in process, reluctance in handing over control, but India is poised at a historic moment where it better do it right else we may where it better do it right else we may lose both rights and resources and only time will tell whether we redressed historic injustice or did a historic blunder!

Thank You for your Patience!

sanjay@eldfindia.comsanjay@eldfindia.comsanjay@eldfindia.comsanjay@eldfindia.comsanjay@eldfindia.comsanjay@eldfindia.comsanjay@eldfindia.comsanjay@eldfindia.com

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