Commentary: Why Forest Rights Act may be the panacea to all the problems facing the tribal people of J&K

Arka Chakraborty and Taitreyi Biswas

The strategic and geopolitical conflict in Jammu and Kashmir tinted with the colours of religious and national identities figures very frequently in the mainstream national media as a result the average observers develop a tendency to forget the importance of other identities and politics centered on them. However, these identities affect the everyday realities of a large chunk of the region’s population, for whom the ‘larger’ conflict is a relatively distant issue. The tribal groups which form a sizable portion of J&K’s population and a number of whom still follow a pastoralist and semi-nomadic lifestyle have long since faced discrimination and marginalization at the hands of successive governments that largely serves a sedentary population. While this incompatibility between the pastoralist and agro-pastoralist semi-nomadic communities and the sedentary state and the latter’s efforts to control the former creates a kind of conflict that is largely universal both spatially and temporally, sharp regional differences exist and the tribal groups in J&K have been provided far less opportunities to preserve their heritage and join the developmental mainstream. As the special status of the erstwhile state has been abolished and Acts aimed at the welfare of the groups listed as Scheduled Tribes (STs) like The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, have become applicable in the now Union Territory of J&K, tribal leaders and activists are hopeful that they will be able to join the other scheduled tribes of the country in availing the welfare schemes.

The scheduled tribes of Jammu and Kashmir

Jammu and Kashmir is the only Union Territory in northwest India with a considerable amount of scheduled tribe population. Out of a total 14.9 lakh schedule tribe, population 13.2 lakh are Muslims, 1 lakh are Buddhists and 67 thousand are Hindus. There were about 12 major scheduled tribes in the erstwhile Jammu and Kashmir state: Balti; Beda; Bot and Boto; Brokpa; Drokpa; Dard and Shin; Changpa; Garra; Mon; Pungpa; Gujjar; Bakerwal; Gaddi; and Sippi. Among them, the Gujjars and Bakerwals constitute the largest population groups. According to the official census of 2011, the tribes of J&K constitute about 11.9% of the erstwhile state’s total population, although this figure is currently under dispute. Traditionally, the hilly regions of J&K had given the tribes the opportunity to follow a nomadic or semi-nomadic, pastoralist lifestyle. While tribes like the Gujjars mostly rear cattle, others like the Bakerwals rear goat and sheep. The nomadic and semi-nomadic tribes follow seasonal migration routes. They spend their winters in the upper reaches of Pir Panjal (mostly in the Kashmir Division) and spend the winters in the plains of Jammu. Due to their pastoralist lifestyle, many of them have no lands or homes. However, there is a growing population of Gujjars who are settling down as sedentary agriculturalists.

A History of Discrimination

Historically, the problems regarding the tribal groups of Jammu and Kashmir in particular and India in general have arisen from access to and control of land as well as the question of the tribal population’s access to education, employment, financial security, social justice and political decision-making process.

1. Land, Heritage, Coercion and Landlessness:

Under the Dogra rule (1845-1947), the tribal nomadic and semi-nomadic groups of Jammu and Kashmir were given access to pastures and patches of land for habitation and cultivation. These rights, however, were slowly eroded as time went on. Khalid Bhatti, a lawyer in Jammu, opines that the first evictions of tribal groups started happening in J&K when areas like Gulmarg were converted into tourist spots. The real struggle for the tribes, however, began with the inception of armed insurgency in 1989. Traditionally, the nomadic and semi-nomadic tribes of J&K follow distinct migratory routes followed y their families for centuries without deviation. There are seven major seasonal migration routes, all of which lead to different passes in the Pir Panjal ranges. The summer migration begins in and around the first week of April and ends by the last week of June or the first week of July, during which various tribes divided in clans migrate with their livestock to the upper reaches of the Himalayan mountain ranges (especially Pir Panjal) mostly in the Kashmir division. The winters, conversely, are spent in the lower reaches or the foothills mostly in the Jammu division. These seasonal migrations were greatly disrupted by the advent of militancy. A study conducted in 2014 shows how the nomads were “…sandwiched between the militants and the security forces and were hit from either side.”  The armed militants usually hid out from the security forces in the upper reaches of the Himalayan mountain ranges, some of which were seasonal migration paths for the tribal groups. These groups were seen by the militants as the source of food supply, shelter, directions across the remote area and camouflaged transport for personnel, ammunition and equipments. The tribal groups, therefore, faced a double threat- they would often be coerced at gunpoint into assisting some of the militant groups. If they did assist them, they would run the risk of being targeted by the security forces. Naturally, this double whammy has had very detrimental effects on the tribal groups’ way of life. Firstly, a large number of families have abandoned their traditional migratory lifestyle and pastoralist livelihood for “fear of the gun.”

Secondly, the groups which remained to follow the pastoral profession now face the challenge of an ever-shrinking caravan. The number of cattle, goats, sheep and other small ruminants that accompanied the groups earlier can’t be maintained anymore. This is another element that is pushing many pastoralists out of their profession. Thirdly, the nomadic groups used forest resources for food and shelter. Since the 1980s, however, the Forest Department has closed off a number of forest areas as a part of their conservation efforts. The militancy resulted in yet more forest closures due to security reasons. The loss of pastures as a result is also leading to many people leaving the life of pastoralism. A study conducted in 2012 by the Tribal Research and Cultural Foundation (TRCF) found that 39% of the respondents have left their nomadic lifestyle. Javaid Rahi, the general secretary of the TRCF, states that the tribal families had to leave their traditional livelihood and seek out other options. “Due to lack of education, most of them had no choice but to join the ranks of unskilled labourers,” Rahi told JKPI.

2. Lack of Political Representation:

Although the tribal population of J&K constitutes nearly 11.9% of its total population (according to the Census of 2011 which is disputed) their political presence in the erstwhile state’s decision-making process is nowhere as visible. This, according to Gujjar activist Shamsher Hakla Poonchi, has been largely due to the apathy of successive state governments which largely obstructed the central government’s more sympathetic tribal policies by using J&K’s special status as a shield. The Nehruvian policy of developing the ‘quality of human character’ and the material conditions of the scheduled tribes by empowering their own people to lead them at their own pace while preventing them from being ‘over administered’ by the state has been largely followed by the subsequent central governments which has resulted in significant upliftment of tribal groups and communities across the country. This gradual development has largely not taken place in J&K. Eight tribes of the former state i.e. Balti; Beda; Bot and Boto; Brokpa; Drokpa; Dard and Shin; Changpa; Garra; Mon; and Pungpa were granted scheduled tribe (ST) status as late as 1989 while the Gujjar; Bakerwal; Gaddi; and Sippi were granted the same even later (1991). Although this was seen as a big step towards the attainment of socio-economic equality and political presence, it quickly became apparent that the political elite in J&K state at the time were reluctant to give them the political representation in state assemblies proportional to their population  (an idea that the Indian Constitution supports) that they rightfully deserved. In fact, the State Constitution of J&K allowed seat reservation at the Legislative Assembly for Scheduled Castes, but denied the same to the scheduled tribes. When Javed Rana, a tribal National Conference MLA, raised this issue in an assembly session, he was quickly silenced by the top leadership of his own party. The state government had only reluctantly granted the tribal population reservation at the panchayat level as per their proportion in the State population which is viewed by some tribal leaders including Gujjar United Front leader Shah Mohammad as a ‘tactical move’ on the part of the politico-economic elite to keep the tribal people subjugated.

3. Economic Vulnerability:

A number of factors are leading to the nomadic and semi-nomadic tribal groups of J&K losing their migratory routes and pastures. This has resulted in a large number of them giving up on pastoralist lifestyle. While some have settled down as agriculturalists, others have become landless labourers. This has had a tremendously detrimental effect on their livelihood. Zakat Ali, a tribal community member of Budhal in Rajouri district, states that while he used to earn more than Rs. 5000 selling wool from his goats in the summer which was sufficient for his family’s survival in the winter, now that he has lost his flock of 20 sheep, he does not have enough money to cure his son’s stomach ailment. Dr. Javaid Rahi informed JKPI that as the price of fodder is higher in J&K markets than the price of milk, the cattle-rearing communities constitute a low economic group. Same can be said for the shepherds as the demand of mutton imported from areas like Rajasthan and Delhi are in greater demand than indigenously produced mutton. The farmers, according to Dr. Rahi, are not better off either as they mostly produce rops for consuming themselves. The percentage of tribal people employed in the service sector is also extremely low. All this culminates in the overall low economic condition of J&K’s tribes. As the erstwhile pastoralists are fast losing their economic self-sufficiency, a lot of them could use the assistance provided by the welfare schemes offered by the government. However, there are a number of faults in their implementation on the ground which results in the promised assistance never reaching those who actually need it. Central assistance of Rs. 4757.66 crores was granted for the period of 1997-2003 to Jammu and Kashmir for a tribal sub-plan. However, the government-appointed advisory board comprising Gujjars and Bakerwals which was the designated authority to allocate the funds was paid little heed to during the process by the bureaucrats who had little idea of the ground realities. This resulted in a number of massive economic blunders, like the mammoth loss of 30000 animals in an unexpected snowfall in the last week of April, 2004, in the higher reaches of Pir Panjal due to the government’s laxity in building protective sheds in those areas which could have minimized the damage in spite of the repeated requests to do so by the advisory board.

4. Educational Backwardness:

Nomadic or semi-nomadic lifestyle is incompatible with an essentially sedentary structure of the modern education system in India which results in a large chunk of the tribal population in J&K never receiving formal education. Even those who have adopted sedentary life, however, do not fare much better. Firstly, there is a lack of teachers who use Gojri as a medium of communication. This results in a language barrier between the teachers and the young students and presents an impediment to their mental growth. Secondly, there is a lack of teachers for tribal students. S. M. Chowdhary, Central Govt.’s Standing Counsel and a Senior Advocate in the J&K High Court who has actively championed for the rights of Gujjars and Bakerwals, states, “Gujjars are provided one teacher per 60 students. One teacher to teach maths, science, and every class. How can the kids learn, and compete?” Thirdly and perhaps most importantly, there is a distinct lack of schools devoted to the education of children from tribal communities. Dr. Javaid Rahi told JKPI that there are currently about 25 hostels for men and women where around 2800 students from tribal communities are being educated. This is a minuscule number when compared with the total population of tribal people in J&K, which is around 15 lakhs. He also adds that there is a noticeable lack of Ekalavya Model Residential Schools (centrally-funded residential schools devoted solely for the education of children from tribal communities) in Jammu and Kashmir.

It is important to know that as of February 2019, only two EMRSs have been established in the erstwhile state (funds have been released for three).

5. Under-representation of Language:

Tribal languages and elements of tribal culture are woefully under-represented in Jammu and Kashmir. Gojri, according to Haji Mohammad Yousuf, President of the J&K Gujjar Bakerwal Conference, is the third most spoken language in the region as well as one of the oldest languages still spoken. However, the recent Jammu and Kashmir Official Languages Bill, 2020, only included Kashmiri, Dogri and Hindi as the UT’s official languages along with the already-existing English and Urdu, ignoring Gojri. Rabiya Shafiq, a Gujjar activist from Rajouri, sees this as another manifestation of discrimination against her people. She, along with other activists, demand the inclusion of Gojri as an official language.

6, Dispute regarding Population:

According to the Census of 2011, tribal communities constitute 11.9% of J&K’s population, which itself is larger than the national average. However, a number of activists and organizations including the TRCF claim that there were faults in counting the tribal population and the actual percentage of tribal people ranged from 15% to 20% of the total population of the erstwhile state. In conversation with JKPI, Dr. Javaid Rahi has pointed out a number of methodological inconsistencies in the counting process of the 2011 census. Firstly, he states, the census was conducted during the seasonal migration of the tribal communities which resulted in a large chunk of their population being left out of the process. Secondly, the process of counting houses as the basis of population is inherently flawed in the case of tribal communities, as many of them are nomadic in nature and do not own any land or houses. Thirdly, there are many local inconsistencies when compared with the previous Census (2001), revealing the possibility of political sabotage.

Needless to say that in a state where population often translates to political visibility and representation, the under-representation of the tribal groups’ population in J&K is sure to have seriously detrimental consequences for their plight.

Eviction Drives

The nomadic and semi-nomadic tribal groups of J&K return to the plains of Jammu with their livestock during the winter. However, due to their landlessness, they have no choice but to settle in the areas near the forests close to water sources. This is where tensions originate between the inhabitants of the plains and the nomadic groups. Throughout most of Indian history, tribal groups (especially nomads) were not given any kind of land rights and were legally seen as ‘encroachers.’ This meant that the government and its representatives had the right to forcibly remove these groups from their habitations without any promise of rehabilitation. This changed for most of India in 2006 with the introduction of the Forest Rights Act which ensured these groups land rights, protection from eviction and the right to procure, use and dispose of minor forest produce, among others. This historic act, however, was not extended to Jammu and Kashmir due to the erstwhile state’s special constitutional status. The nomadic and semi-nomadic landless tribal groups of J&K, therefore, remained to be ‘encroachers.’ Meanwhile, as militancy drove many tribal families to abandon their traditional ways and settle down permanently in the plains, the conflict regarding the right to inhabit and use land continued to grow between the landed citizens of the plain and ‘landless encroachers.’

Forest Rights Act, 2006

In a country where landless scheduled tribes were essentially not given any security against forcible eviction, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, also known as the Forest Rights Act (FRA), was a historic and revolutionary step towards equal opportunity, economic welfare and social justice. According to this law, scheduled tribes are ensured access to and ownership of forest lands for livelihood, habitation and self-cultivation, are allowed to procure, use and dispose of forest resources (except timber) and are ensured rights to seasonal produce. The FRA is the first law in India that recognizes the role of the traditional wisdom of these groups for the conservation of forest areas. It enjoins upon the Gram Sabha and the rights holders the responsibility of the conservation of biodiversity, wildlife, forests, adjoining catchment areas, water sources and other ecologically sensitive areas. The Act also allows the Gram Sabhas to divert land up to one hectare for the development of basic infrastructure in their localities like schools, hospitals and water reservoirs.

The FRA has the potential to radically change the condition of the landless tribes for the better. It grants the beneficiary protection against eviction, which is the need of the hour for the tribes in J&K. Dr. Javaid Rahi opines that the act, if implemented, “… will empower the village committees to govern community forest resources and will democratize forest governance by securing rights of tribes of Jammu and Kashmir.”  This granting of actual power, while not being able to instantly eliminate the varied discriminations that take place against the tribal population, will certainly be the first bold step towards the tribes’ battle for equal dignity and self-preservation (in both economic and cultural terms). It also has the potential to finally begin building some measure of trust between the UT government and the tribal people, the latter of whom have been alienated for decades. Empowering the tribes will also mean that they willbe able to help the government with their traditional knowledge of the forest to ensure the conservation of forest resources.

These dreams, however, are yet to come to pass. Even after the law was deemed ‘applicable’ in the UT following the abolition of Jammu and Kashmir’s ‘special status’ (31^st October, 2019) the government had taken a long time to decide to implement the same on the ground. This has changed with a recent meeting chaired by B. V. R. Subrahmanyam where deadlines have been set regarding the on-ground implementation of the law. Plans have been made to complete the “survey of claimants” by the forest rights panels for assessing the nature and extent of rights claimed at the village level by January 13, 2021.. Then the sub-divisional committees are to complete the scrutiny procedure of claims and the preparation of “record of forest rights” by January 31, 2021. Finally, committees at the district level are set to consider and approve this by March 1, 2021.

Recommendations

A number of measures should be taken to alleviate the living condition of J&K’s scheduled tribes:

1. Implement the Forest Rights Act and other central laws made for the benefit of the scheduled tribes as soon as possible.
2. A special census should be conducted keeping the specificities of the tribal communities in mind in order to ascertain their true population strength in the Union Territory.
3. The government must find ways to popularize indigenously produced wool, meat and milk and implement schemes to help to bring down the production cost of the same. This will pave the way for the economic prosperity of J&K’s tribes.
4. The Gojri language should be given the respect and the visibility it deserves.
5. A number of measures should be taken to improve the educational conditions of tribal children. Gojri should be made an official medium of exchange at the primary level at least in schools where the Gujjar-Bakerwal children form a significant section of the student body. For this purpose, native Gojri speakers should be trained as teachers and employed in large numbers. Establishing the Ekalavya Model Residential Schools should be the UT government’s top priority.
6. Elements from Gujjar and other tribal cultures should be introduced in the mainstream curriculum of the JK UT to make the next generation of citizens living in J&K acquaint themselves with and appreciate the heritage of these tribes. This will go a long way in remodeling the derogatory public perception of these tribes.
7. Dr. Javaid Rahi kindly advises that funds for the improvement of the condition of tribal people should be allocated in a manner where the village or the administrative unit that has a greater population of the tribal people (in percentage) will have the priority. In getting those funds.
8. Measures should be taken for the improvement of the condition of the tribal people during their seasonal migration. Rabiya Shafiq, for example, calls for solar-powered lighting systems and full-time veterinary doctors in every Gujjar-dominated place.
9. Most importantly, the political empowerment of the tribal communities is long overdue. Only when they are in positions of power can tribal people have any control over making their voices heard and forging their own destinies.

Conclusion

Whether the FRA is implemented properly within the projected months remains to be seen. However, the implementation of this act will be only one milestone among many yet to be reached in the journey of J&K’s tribes to find dignity and equality among their fellow brethren. Bridges based on concrete actions have to be built between the government and the tribes in order for real trust to emerge. The political elite has to realize the potential of human merit, spirit and boundless energy within the tribes and treat them not as vote-banks, but as allies and friends in the construction of a Jammu and Kashmir steadily moving towards development but conscious of its multiplicity of heritage and identity. Otherwise, the silent migrations will continue and a day may come when the unique culture of J&K’s tribes is lost forever.

 

References

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