Monthly Archives: April 2012

Legal pluralism with economic humanrights

Legal pluralism in the Management of Natural resources:
Legal pluralism in the realm of International study is enlarging the scope since every country is bound by legal compulsions of various Institutions created in   Domestic and International governance. The importance of this subject become much more enhanced  to resolve the conflicts and disputes with various stack-holders.
The Management of Natural resources:
This subject of Managing Natural resources is now elevated to the global level since the international and Multilateral trading creates the understanding of conflict of interest in handling the National resources of any country in the world. Once  ,the National resources of a country was not at all attractive to another country as the use of such natural resources of  any country specific depends upon of the National need according to the technology and know how of that country. In the 18th and  19th century , expansion of colonial rule by various countries in search of Natural resources , for  value addition of  Natural resources and market, through the Industrial revolution created the explosion of laws, regulations and multiplication of legal pluralism.
21st century need of Natural resources:
The 20 th century geo political changes of anti colonial movement  leading to establishment various new  Nation -States has created novel  way of aggressive exploitation of National Natural resources by the appetite of developed  countries. Cold war enabled the  regrouping of Nations on the basis of the need for Natural resources and exploitation . The political leaders in such Natural resources  – rich  -countries    were also courted or destabilised according to the behaviour and friendliness to help in exploitation of Natural resources . The legal system of the National Parliament and executive orders were reflecting this aspect of exploitation.  Arrival of 21st century and globalisation has made the  countries to re-look their agenda and the look behind the path ‘passed through’.
Legal Pluralism and the development Agenda:
The multiple decade of diplomacy bi –  laterally and through various multilateral Institutions have created many legal pluralism which needed deep research and need for laying a new road map. The creation of regional co operation  enabled trade pacts . It may be general or specific trade pacts to address the needs of States. This  can be understood as ‘trade web’.  The trade pacts created new legal system which is done as follow up of the pact. The week states are easily exploited while strong States enabled better price mechanism as the fruits of exploitation. The modern trend of the International discussions are going deep into the anthropological, and socio- political in nature. This type of discussions are leading to better understanding for splitting the national interest into regional interest or understanding the regional interest and history of submission to National and International interest. This will allow the discussion in depth understanding the  ambition of various components of the society. In other words natural growth and integration, degradation of groups in society and decay or success of the society under study to go beneath the structure on which the the State stands as Nation State.
India the Nation State built on legal pluralism:
India is a mosaic of unity in diversity. The anthropological experimentation will give the detailed unity story of ‘city state’ just like Roman city state . Mahatma Gandhi said the heart of India is in villages. Even now the three pillars of modern government is in existence in the Village Panchayat raj. The village is fully independent of each other but the strength is strong villages have better understanding with each other and cooperative coexistence is the accepted way of living inside and outside the villages. The self sufficient village is maintained by community assets such as community granary, community lands,Forests, temples,burial grounds, working place, entertaining  locations,separate bathing spots for male and female, separate water tanks for human usage and cattle usage, Court system with appellate and intra village appeal in both civil ,personal law and criminal cases. Education centres , working and artisans sheds ,  Festival locations ,market places, fishing rights, Forest rights and mining , are all clearly demarcated on the basis of  Gram Sabha discussions. Entire administration and implementations are transparent and well informed by public information methods . There is no secrecy within the villagers .But secrecy within villages are maintained while other villages may not be informed in certain strategic issues on asset management. 
The village system is ancient and never was affected by change in Zamindari system PublicManagement consisting hundreds of villages together united with the defined territorial jurisdiction of Zamindari or intermediary between King and Villages. Similarly the villages head never be influence by th  Rulers after a war or change of rulers in usual Palace politics. More of interesting matter is the Zamindary and Kings  were  invaded by many outsiders but the Village and it’s Management system  have never  been digested by invaders system. They also understood the strength of village system. The village system remained deep rooted and except Britishers none other rulers have  attempted to change. Hence the customary  law in monolithic in character is in legal system of village.
British Colonial Government for Legal pluralism:
The Mughal invasion or any other invasion could disturb the Village Raj or Panchayat Raj. But Britishers attempted to tempt the Village hereditary head to get British system of Head Man ,village Accountant and Village Messenger to report the datas and happenings by Annual Report to District Collector. This intrusion by District administration by enforcing various laws of National, Provincial Administration on the Natural Resources heralded the legal pluralism. Unfortunately the Government of India Act 1935 based Indian constitutional structure also made the National and State Laws passed by relevant Parliament and assembly shaking the foundation of  Natural Resources Management system by plethora of laws, regulations, notifications, Government orders , Municipal and Block Development orders and various departmental orders . This multiple arrows   made Natural Resources being exploited by hungry traders, brokers and unlawful elements. The villagers were threatened with police, Revenue and department officials belonging to Forest, Fisheries, Mining, and various departments and petty official. Hence the distance between community and Officials for protecting and managing widens. The officials , criminals and unlawful elements exploited by corrupting politicians and political rulers. 
Indian Government Five year Plans:
From the days of Independence and subsequent Republic under written Constitution which provided Central, State and District, Community Block Development and Village Panchayat Planning and  Implementation system during Pandit Jawaharlal Nehru and Indira Gandhi as Prime Ministers could create the Environment of hope and restoration of powers to Village body. But many of the States have not co-operated to realise the “handing  back” powers to villages. In this era of civil society movements the Union and State governments were compelled to move towards” poorna-  swaraj ” to villages . It can be reflected by recent Forest Rights Act 2006 which reads as follows:

“to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forestdwellers who have been residing in such forests for generations but whose rights could not be recorded; to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.
WHEREAS the recognised rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers include the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening theconservation regime of the forests while ensuring livelihood and food security of the forest dwelling Scheduled Tribes and othertraditional forest dwellers;

AND WHEREAS the forest rights on ancestral lands and their habitat were not adequately recognised in the consolidation of State forests during the colonial period as well as in independent India resulting in historical injustice to the forest dwelling Scheduled Tribes and other traditional forest dwellers who are integral to the very survival and sustainability of the forest ecosystems;AND  WHEREAS  it has become  necessary  to  address the long  standing  insecurity  of tenurial  and access  rights  of  forest dwelling Scheduled  Tribes  and  other   traditional   forest   dwellers  including  those  who  were  forced  to  relocate  their   dwelling  due  to  state development interventions. 

  “community forest resource” means 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 Parks to which the community had traditional access;
These are the impact of activist Leaders  such as Sonia Gandhi and others to really implement the acts and regulations to give back the rights to the tribal and rural poor.
Rajiv Gandhi ‘s dream of ‘Gram Rajya’  ( propounded by Mahatma Gandhiji during Freedom movement) has been made through 73 rd and 74 th amendment of constitution of India. But it is depended upon the State government to  implement the constitutional mandate by empowering villagers to Manage the natural resources rather  than the legal pluralism .The movement of civil society has  brought the legislation forward. But horse  will not drink water unless brought before water tank.   Even after that step ,it depends upon the horse to drink. The Biological diversity Act 2002 recognises the community Intellectual Property right. These rights are to be enforced by active civil rights groups by creating awareness to the beneficiaries . The Management of Natural resources are to be on the basis of awareness, transparency , equity and participation of holders of rights rather than legal pluralism which immobilises the development and growth of the country. The web of legal pluralism is to be made lean and vertical and accessible rather than stories of Arabian rights.
                          – The speech delivered by Dr E. M. Sudarsana Natchiappan , MP in International Seminar on ” Legal pluralism in Natural Resources Management”, in Amrita school of Management , Coimbature, Tamil Nadu ,India . 


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