Rule 4.9 needs to be closely looked at in the light of Constitutional provisions cited above as well as existing provisions of Section 28 of the Indian Forest Act, 1927. Section 13 of the Act already
clarifies that “save as otherwise provided in this Act and the Provisions of the Panchayats ( Extension to the Scheduled Areas )Act, 1996, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time
being in force. Therefore, rather than framing rules which tend to override even the Constitution, existing provisions of the Indian Forest Act, 1927 may be used. Of course, it would involve restricting the definition of community forest resources to the legal
limits of Panchayats / Gram Sabhas. It may be further borne in mind that ownership of MFP has been limited only to community and that too, in the Scheduled Areas.
Rule 4.11 concerns right to Intellectual Property and Biodiversity ( Section 3(1) (k) ).
The entire issue of access to biological resources has been addressed by another Central Act, viz. the Biodiversity Act, 2002. In so far as the question of Intellectual Property Rights is concerned, National Biodiversity Authority is the final Authority.
Every State / UT is required to set up a State Biodiversity Board under that Act. It should be sufficient to provide in the instant rule that the enjoyment of right to biodiversity of a village shall be in accordance with provisions of that Act and rules made
under the same. The Biodiversity Act already recognizes claim of the local community to bio resources and hence adequate and elaborate mechanism would be prescribed once the State Board is set up. Panchayats / Gram Sabhas have an important role to play in
the management of local bio resources and are, therefore, vital stakeholders in the ownership of usufructs relating to the same.
Rule 4.12 & 4.13 concern
in situ rehabilitation and settlement of displaced persons.
MOEF should frame guidelines incorporating adequate safeguards for rehabilitation on account
of non forestry projects ( including resettlement in PAs ).
With these provisions the entire burden of resettlement of the displaced persons from forest lands even for non forestry purposes would shift to forests, thereby converting forests into virtual
land banks. In the ensuing scenario of continuous fragmentation of forest lands, all thoughts of scientific forest and wildlife management should be abandoned.
Rules 5 (a) to (e) seek to
shift the mantle of forest / wildlife management from the Forest Department to Gram Sabhas. This needs to be accomplished strictly in conformity with the provisions of Articles 243, 243A to 243O and their application to the Scheduled Areas. As already stated,
existing provisions of Section 28 of the Indian Forest Act. In fact, the existing draft may render the existing forest and wildlife management ineffective, which would be dangerous for ecological and water safety of India, specially Maharashtra. It would
be in the fitness of things for the State Forest Departments to notify village forests, make rules for their joint management and hand over the same to the respective Panchayats. These forests may be defined as community forests or community forest resources
in the Act.
Rule 7 needs to be in conformity with the Constitutional provisions existing with regard to Panchayats / Gram Sabhas. The State Legislatures have an important role to play in enactment of laws pertaining
to Panchayats / Gram Sabhas. In fact, in States like Maharashtra, elaborate Panchayat Acts exist which have prescribed a distinct administrative niche for Gram Sabhas by way of development sub-committees. Care should be taken to ensure that the existing administrative
frame work is not disturbed. The instant rule provides for election of members of the proposed Forest Rights Committee! It needs to be examined whether such a provision exists in the Village Panchayats Act. In fact, Forest Rights Committee should be formed
in accordance with the provisions of the Village Panchayats Act.
Rule 12 : There is a need for exercising abundant caution as “other traditional forest dwellers” ( OTFD )
may come to form bulk of the beneficiaries. It may be borne in the mind that about 24 million people inhabit forested villages in the State. There are, on the other hand, 9.1 million tribals in the State, not all of whom dwell in forests. The
process of identification of OTFD is to be set in to motion by the Gram Sabha. We may be creating a class of people, who, stand to be called OTFD irrespective of their caste, creed and race and, above all, economic status besides political power.