Economic and Political Weekly      Vol XXXVIII No. 35     August 30, 2003

Forest management in India has been rewritten with the introduction of the concept of joint forest management (JFM). JFM means different things to different people. As Jeffery Campbell puts it, “Foresters may view JFM primarily as a means to ensure forest regeneration; community members may see it as a solution to a growing shortage of biomass, a means to ensure daily requirements of food, fodder and NTFPs, and/or a way to increase incomes; NGO workers/activists may view the programme as a vehicle for grass roots empowerment; academic researchers may see in JFM an experiment in collective action; while politicians may view JFM as a means to decentralise control over resources. It is a dynamic initiative still very much in its evolutionary stage, full of variation, uncertainty, and conflict” [Campbell 1996]. 

While the debate on JFM as a forestry management practice has generated several views both for and against it,¹ little attention hitherto has been given in the legal discourse on forestry. Legal texts on forestry law perhaps never touched on the validity and legality of JFM in India. This paper attempts to raise some central legal concerns that need to be addressed on an urgent basis. This is essential because often the intervention of law is sought when a dispute is manifest. Law, however, has a more preemptive as well as preventive role. Crucial legal issues need to be addressed prior to and not after conflicts. JFM in India clearly raises a number of critical legal issues and thus needs to be addressed urgently prior to manifestation of conflicts. This obviously would go a long way in streamlining new practices in forestry management in India. What are these critical legal concerns of JFM? 

JFM Circular 1990 – Its Legal Validity 

The foremost and fundamental concern that has been voiced is the legal basis of the JFM circular itself. The JFM circular issued in 1990 by the secretary, environment and forests, was to set a new policy on “involvement of village communities and village assemblies in the regeneration of degraded forest lands”. The circular took the National Forest Policy, 1988 as its basis for envisaging people’s involvement in the development and protection of forests. The circular was more in the nature of a direction-setting document outlining the need and rationale and the objectives of working out modalities for giving to the village communities, living close to the forest lands usufructory benefits  to ensure their participation in the afforestation programmes of the government. Legally speaking, the circular has no legal binding. A violation of the enumerated guidelines in the circular would entail no legal consequences. Even the source of the circular, which has a basis in the forest policy, does not add to its legal validity. The forest policy itself is a resolution which in legal parlance means merely an opinion of the House and thus not binding on the government. As a matter of practice, it rests entirely on the discretion of the government whether or not to give effect to the opinions expressed in such a resolution [Kashyap 1989]. 

State Government 

Pursuant to the circular of 1990, 27 states have issued JFM orders for the implementation of the programme. In most government orders a frequently noted weakness has been the absence of any legislation on the subject. The entire programme seems to be built upon orders issued by the executive branches of the government, without clear linkages in the enabling language in the relevant law. Except for some states such as Uttar Pradesh and Jammu and Kashmir, which have founded their JFM programme on the basis of the rule-making powers of the respective state forest acts, most of the other states have based their JFM programme on government orders. The flexibility of government orders allow them to be modified, updated and repealed at executive will. For example, the Andhra Pradesh JFM order has been modified at least six times, and each time on the pretext of improving the earlier order. The trend is similar in other states. While on the one hand flexibility of this nature allows a new programme to adjust to new circumstances that emerge, on the other, it re-enforces the fears that have been expressed with regard to the stability of the legal foundation of the JFM. A weak legal footing can hardly be a firm basis where people who are expected to participate in such a joint programme would give 100 per cent of their effort. 

To facilitate participatory forestry management between the forest department, the user community and non-government organisations most of the orders on JFM have annexed a model memoranda of understanding (MoU) or some form of agreement between the stakeholders which will lay down the terms and conditions including duties and responsibilities of all parties. It has been argued that most of the terms of the MoUs are worded in a language that favours the state and retain its unequivocal powers to regulate the activities of any such committee that is being constituted for implementing the JFM programme. The MoUs raise several critical legal concerns. The fact that provisions concerning benefit sharing to accrue to the user community only on “satisfactory performance of the duties and functions by the committee” hardly instills any confidence in a community that has been asked to participate. The duties and responsibilities list seems to be heavily loaded towards the community, but correlating duties and responsibilities of states and the consequences of their non-performance hardly finds mention in these agreements. In most cases, the power of termination of JFM agreements lies with the divisional forest officer who may supersede a joint forest management committee (JFMC) for ‘sufficient reasons’ after the approval of the district forest committee, whose constitution is totally tilted towards government officials. 

JFM must not only provide a realistic hope of significant benefits, it must also instill the confidence that the rights to those benefits are secure and cannot be taken away arbitrarily. In part, this sense of security requires that the rights and responsibilities of both the community and the government must be clearly defined. Both parties need to clearly know not only what they stand to gain, but also what they are expected to do, and what the consequences will be if they fail to live up to the agreement. A lack of clarity simply creates fertile ground for disagreement. Similarly, both parties need to know that they have a mechanism of recourse at hand in the event that their rights are abridged during the course of the agreement [Lindsay 1994]. The present JFM orders across the country clearly fail to grant security of rights to the communities participating in the programme. In fact, one attempt to provide a surer legal footing is by giving legal status to the JFMCs themselves. 

In most of the states the JFMCs (termed variously as Van Samrakshana Samittee, Van Suraksha Samiti, forest protection committee, and village forest committee) were ‘registered’ by the DFO by recording the committee in his/her ‘Register’. Having realised that the DFO certainly is not a legal authority having powers under the Indian Registration Act or other registration acts such as those of societies or trust acts, the central government issued guidelines in February 2000² suggesting that the JFMCs should be registered under the Societies Registration Act, 1860. Several states protested, and not without reason, for this could create a legal impasse, as the whole programme of JFM, which is an incentive-based management option and the spirit and objective of the Societies Act which is to promote charitable activities and such are at variation with each other. The problem with such short-sighted and reactive methods of issuing guidelines for achieving limited purposes and short-term objectives clearly creates more confusion than any clarity in implementing a programme which has such high stakes. 

Benefit Sharing under JFM 

Another critical legal concern is the benefit sharing mechanism that has been envisaged in the JFM orders. The benefits of usufruct, which are ordinarily as per the requirement and benefits of timber range from about 20 per cent to 100 per cent in the JFM areas that are protected by JFMCs. Let us take each component and see its legal implications. The usufruct that is envisaged has been traditionally taken by the communities living in and around the forest from time immemorial. Such rights historically have only been watered down as privileges in government records but such benefits continue even as of date. In fact in Maharashtra and Madhya Pradesh, such usufruct benefits were recorded as ‘rights’ under the ‘nistar patraks’ that were prepared under the revenue records of these states. Nistar policies were prepared in the early 1900s for meeting bonafide reqirements, which included selective timber poles along with non-timber forest products. In this light the JFM agreement seems to have taken only a marginal step forward by providing benefits arising out of the timber harvesting in the patches that are protected by the forest. 

However, there are two critical areas which need to be highlighted. First, in most of the benefit-sharing mechanism the percentage benefit that accrues to the community has to be calculated ‘minus the operation cost of such harvesting’. This particular clause drastically reduces benefit share percentage that accrues to the community. Thus, for example, 100 per cent benefit – as in Andhra Pradesh – would get reduced to less than 50 per cent after the operation cost gets included. This is also because such operation costs not only cover the basic cost of timber harvesting, but also includes benefits of the staff, office maintenance cost and other ancilliary costs attached to the office under which such JFM programmes are implemented. Clearly this can be challenged legally. 

The second method that has been used to reduce benefits is the introduction of the clause in benefit sharing that relates to ‘incremental’ benefits. Such incremental benefits have to be calculated on existing base line data of the forest patches protected. It is common knowledge that such base-line data does not exist and therefore gets determined at discretion of the officials rather than any scientific basis. This kind of ad hoc mechanism can be challenged. 

Linked to this is the question of the JFM area itself being protected. The JFM agreement does not always cover legally constituted or demarcated area of forest. The wording ranges from generic terms like degraded forest, well stocked forest, barren forest or forests of certain density to legally constituted forest such as reserved forest and protected forest. It is obvious that regulations and restrictions differ in various categories of forests. This again creates fertile ground for conflicts. The restrictions in reserved forest area would obviously be more than those in protected forest areas and even less in undemarcated forest land. 

The Role of PRIs 

The constitutional mandate of the 73rd Amendment which vests panchayati raj institutions (PRIs) with subjects such as social forestry and minor forest produce, necessitates the need for exploring linkages with executive-initiated joint forest management practices. Ironically both the JFM and the 73rd Amendment were instituted in the early 1990s. However, it is only recently that states such as Jharkhand and Himachal Pradesh have included in their agreement the necessary linkage with PRIs. The suitability of JFMCs and PRIs is an another area of legal enquiry [Upadhyay and Upadhyay 2002]. However, it is sufficient to say that an emerging conflict in the legal mandates of PRIs and JFMs is largely precipitated by the fact that there is no effective coordination between the legal and administrative framework for panchyati raj and forestry institutions. An overlapping of functions of PRIs with those of JFMCs especially when both work at the same time at the village level, can be a major reason behind the incidence of inter-institutional conflicts which can grow in future. The tendency of one institution to acquire dominance over the other, of the leaders of these institutions to acquire power positions, competition over management and control, and disputes over benefit sharing could be factors behind such conflicts. This problem is likely to be compounded when the sub-committee of the gram sabha is functional on forestry aspects. It is here that the conflicts may be most intense as there is a clear overlap of functions in the same legal jurisdiction. 

The linkage of PRIs and JFMCs is further complicated in the 5th Scheduled areas under the Constitution. The 5th Scheduled areas are those which are primarily dominated by tribal people, and 10 states comprise such areas. The provisions of Panchayats (Extension of Scheduled areas) Act 1996 (PESA) and the enabling state legislations in conformity with PESA may sour JFM initiatives. Grant of ownership rights on minor forest produce and also transfer of general control over natural resources management to the panchayats creates parallel power structures in the same legal arena. JFM in such a scheduled area needs to be modified to suit the current legal frame. Similarly, JFM in the north-eastern parts of India needs to be looked at very differently because of the complexity of the scheme of administration under the 6th Schedule of the Constitution. The existing autonomous district councils and the special constitutional status that these states enjoy needs to be taken into account when any JFM activity is sought to be implemented. The current JFM orders in states like Tripura and Meghalaya need to be looked at afresh with different legal mandates to make it a successful programme. 

Another important question that merits attention is to ascertain whether there can be potentially valid claims by people outside the village committees on the basis of usufructory rights or rights that accrue due to long use. While the various government orders on JFM mandate benefits only to those who contribute to activities under JFM, it is still unclear whether it can accommodate the customary or traditional rights of people in the same area. This has to be evaluated on the notion of equality. The terms of benefit sharing or potential valid claims from people outside VFCs but from the same geographical areas, and their right by way of easement and long usage, have to be weighed and balanced with the accrued rights under JFM. Although, these are potential conflict areas they have to be addressed immediately to mitigate conflicts in future [ibid]. 

Concluding Remarks 

While the above discussion has generally given a flavour of the potential conflicts that may arise, especially in the legal arena, there have been various suggestions that may be considered for mitigating such conflicts in future. The use of Indian Forest Act, 1927, especially Section 28, as the legal basis for JFM in a village forest model or enacting separate rules of management of JFM areas under the rule-making power of the Indian Forest Acts are two potential solutions to provide a firm legal basis to JFM initiative. Alternatively, the state forest acts may also be used, such as in Uttar Pradesh and Jammu and Kashmir, for formalising JFM. In some states where the village forest provision is absent, for example, in Andhra Pradesh there is an obvious need to amend the forest act to include such provision. 

As regards JFMs and its legal status clearly the Society Registration Act 1860 need not be the only solution. Creative use of mutually aided Cooperative Societies Act or even a non-profit company model under the Companies Act may be explored to provide maximum benefits to such communities.The dispute resolution mechanisms are perhaps in need of the strongest modifications. The present structure tilted towards the forest department needs to be clearly balanced with equal opportunities and rights to the communities participating in JFM programmes. Some advocates of JFM caution that it is too early in the day to jump into legal solutions and let JFM evolve naturally! 

Notes
1 See PoffenBerger M et al (1997): Linking Government with Community Resource Management – What's Working What's Not; A Report of the 5th Asia Forestry Network.
2 Resolution No 22-8/2000-Jfm (Fpd Dated February 21, 2000).

References
Anon (1992): Joint Forest Management: Concept and Opportunities, Development Proceedings of the National Workshop held at Surajkund; Society for Promotion of Wastelands.
–  (2002): Joint Forest Management – A decade of Partnership, Joint Forest Management Monitoring Cell, Ministry of Environment and Forest, Government of India.
Campbell, Jeffrey Y (1996): 'Second Generation Issues in JFM', introduction to panel presentation, May 14.
Kashyap, Subash (1989): 'Our Parliament', NBT, pp 108.
Khare, A (2000): Joint Forest Management: Policy, Practice and Prospects, WWF India and International Institute of Environment and Development, UK.
Lindsay, Jonathan (1994): 'Law and Community in the Management of India's State Forests', Lincoln Institute of Land Policy, Cambridge, working paper series.
Poffenberger, M and B McGean (1998): Village Voices, Forest Choices, Joint Forest Management in India, Oxford Univesity Press.
Rangachari, C S, S D Mukherjee (2000): Old Roots New Shoots, a study of joint forest management in Andhra Pradesh; Winrock International and Ford Foundation.
Sarin, M (1993): From Conflict to Collaboration: Local Institutions in Joint Forest Management, national support group for Joint Forest Management, Society for Promotion of Wastelands Development, New Delhi and The Ford Foundation, New Delhi.
Upadhyay, S and V Upadhyay (2002): 'Role of PRIs in JFM in India – Current Legal Position', Winrock International India.