Common Property Resources in Indian Context

Introduction

Common Property Resources are usually non-exclusive resources to which rights of use are distributed among a number of co-owners, generally identified by their membership in a community or a village. In the context of Indian villages, common property resources include community forests, common grazing grounds, tanks and their beds, foreshores, threshing grounds, rivers and riverbeds, where well-defined property regime may not exist. Common property resources are those resources which are accessible to the whole community or village and to which no individual has exclusive ownership or property rights. The common property resources can be subjected to individual use but no individual can claim ownership over them as it is used by a number of stakeholders who have their own independent right to use. In the pre-British India, a large part of the country’s natural resources was freely available to the rural population. These resources were largely under the control of the local communities. Gradually, the extension of state control over these resources resulted in decay of the community management system and in this process, the common property resources available to the villagers declined substantially over the years. Nevertheless, it has been widely recognised and agreed upon that common property resources still play an important role in the life and economy of the rural population.

Purpose Of Study

The purpose of this study is to analyse the indistinct position of common property resources in the context of the Indian legal system and to suggest reforms in the existing legislations relating to the same so that the commons can be accorded with the legal status that they deserve within the legal framework. The responsibilities of the various stakeholders in the community management system i.e. the State, the community in question and the individuals involved in the process of managing the common property resources, have to be clearly defined within this proposed legal framework. The specific research problem being addressed by this study is the legal aspect of the management of common pool resources. Our study shall make an effort to accommodate our proposed solutions within the existing legal regime by suggesting suitable changes. An attempt shall also be made to construct new policies in those areas which have not been covered within the ambit of the existing legislations relating to commons and issues that have not been addressed by the policy-makers shall be brought to light, so that a precise legal position can be developed on them.

Importance Of Study

The issues relating to common property resources have been largely neglected under the Indian legal regime. Therefore, it is necessary to discuss these issues through our paper so that they receive appropriate attention. The Indian legal system is based on the common law system, adopted from England, which is rooted in the principles of eminent domain and private property rights. The Doctrine of Eminent Domain is based on the principle that the State is the ultimate owner of all the natural resources which is entirely contrary to the concept of common property resources. Common property resources are available for utilisation by each and every individual of the community and none of them can claim to have a right of private property over the same. Our study shall try to address the various issues related to commons, not only from a strictly legal perspective but also from a socio-economic angle. It shall try to establish a legal basis for the use of common pool resources by studying and acknowledging the traditions of the various communities of India and incorporating them within the legislative framework through proposed legal reforms. Thus, our study aims at developing a legal model based on the traditions of these communities, which shall be ideally suited to cater to their needs of growth and development, without depriving them of their customary rights over the common property resources. The rationale behind our study is to preserve the tradition of the local communities and provide them with a legal sanction, which would firmly establish their rights of usage relating to the commons.

Major Issues/ Key Research Points

This study aims at evaluating the role played by common pool resources in poverty alleviation and development oriented strategies in India as viewed by different stakeholders. The paper would also evaluate recent policy initiatives in the field of common pool resources. Most of these policies aim at protection and not at conservation where the resource is not at the disposal of the community and the state continues to exercise the right to choose the beneficiaries to whom use rights are to be granted, and also reserves the right to withdraw the benefits extended. Besides, usually the state continues to be the sole owner without the people having any ownership rights over the assets concerned. The paper, in the course of evaluating these policies, would establish that they are not inclusive of pre-existing tradition and customs of the tribal societies and such other the lacunae in the existing schemes related to rural governance.

The paper shall study the effect of common property resources on the rural economy of India and the changes that it can facilitate in poverty levels and growth and development strategies. The dependence of farmers on the common property resources shall be examined. It shall focus on the issues of land ownership, right of access and resource management, while studying the various possible methods of community control of the common property resources. It shall suggest alternative methods for utilising common pool resources for the upliftment of the rural poor.

Our study shall look into the key issue of legal access to commons i.e. forests, grazing lands, pasture, fuel-wood etc. It shall focus on the issue of open access to commons which has led to the decline of these resources in extent and quality because of their overuse and abuse. It has also resulted in the ecological degradation of the lands and the loss of valuable species. These problems have to be addressed through legal means which would be proposed by our paper.

Another major issue that shall be dealt with in the course of our study is the privatisation of common property resources. The privatisation of these resources has led to a loss of income and livelihood to the rural farmers and agriculturists. Land under the Revenue Department and the Forest Department and the Panchayats have been legally and illegally privatised in many instances without paying due heed to the interests of the local people. The privatisation of these commons has to be based on a legal background which shall be supplied by our paper.

The issues of land acquisition and land alienation shall also be comprehensively dealt with in our paper. Acquisition of land for industrial and other purposes will not be carried out without consultation with the local institutions and the transfer of the rights of the community shall be confirmed only with the due consent of the bodies representing it. Allocation of common lands to industries and allotment of revenue land and rights related to wastelands shall have a legal basis, keeping in consideration the interests of the concerned community.

The other key issues relating to commons that shall be touched upon through our study are illegal encroachments on common lands, actual control over commons and land distribution status, equitable distribution of benefits arising from commons, lengthy legal process in obtaining rights for the management of commons, maintenance of land records, demarcation of land boundaries and entry of change of land use in government records.

Knowledge and information among the rural community regarding the common pool resources plays an important role in their effective utilisation. Our study shall make suggestions regarding the dissemination of information amongst the rural community so that they have requisite knowledge required for maintaining and managing the common property resources.

The paper shall also discuss the dynamics and complexities of the use, access to and management and regulation of common property resources. The paper shall examine the need of establishing institutions for the management and maintenance of common property resources and shall propose the structure of these institutions, so that the rights of the community are protected and enforced. The paper shall suggest amendments in the respective state laws regarding land acquisition and the power of the Panchayats relating to management of commons, so that they can be brought into conformity with the concept of rural self-governance. It shall also recommend institutional arrangements for the regeneration, protection and development of commons and the regulation of eco-systems and economic activity on the common lands.

Scope Of The Study

The scope our study shall extend to customs, traditions and practises of all the communities with vested interests in common property resources across the country with special focus on such communities in Maharashtra. Our case studies shall also include communities and tribes in the states of Haryana, Rajasthan, Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Orissa and other states as the need may be. This is being done in order to identify the best practices of all these tribal communities so that they can be consolidated and inculcated in the legislative provisions laid down by the government. The practices of these communities relating to land, water bodies and forests shall be covered under the scope of our study.

Literature Review

Our study would be based on legal provisions relating to common property resources e.g. the provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, judicial decisions of the Supreme Court and the High Courts affecting the common property resources and administrative practices relating to commons throughout the country. Our study shall also include a comparative analysis of legal provisions related to commons in India to provisions in other legal systems of the world which recognise the concept of commons. Our study shall encompass all the existing literature on the subject of commons and it shall aim to critically evaluate the contributions made by influential research papers which deal with various theoretical and research issues relating to commons.

Methods

Our analysis shall be based on the study of existing research, information and literature on the subject of common property resources supplemented with case studies taken from various parts of India. We would also base our research on landmark studies and reports in the field of common property resources undertaken by the government and other agencies. We would also rely on theoretical and empirical contributions by other eminent researchers in this field.

Potential Impact Of The Study

The potential impact of the research paper is to indicate the lacunae in the current legal system regarding the common property resources which inhibit their entailed improvement and sustainable usage by the community for which such resources have been earmarked. With the aforementioned objectives and aims the research will result into a detailed analysis of the existing situation regarding commons and its development over the years. By a thorough analysis of the same, the research paper would suggest various pragmatic solutions for improving the legal status of the commons in India, by way of specifying certain provisions which could be included in our legal framework for the better management of commons. Wherein by articulating on the commons, the research paper would be critical of certain practices in the state policies and the traditional systems of management of commons and thereby propose progressive systems and policies which can be implemented to further the cause of the common property resources. Even if necessary and required efforts are put in the research paper, it could lack in certain minimal aspects where financial and time constraints could come into play. Hence, the research paper will specifically address the predicament of common property resources vis-à-vis the legal system existing in India.