Last year, in February, Supreme Court had directed for eviction of more than 1 million scheduled tribe (ST), and other forest dwellers from forestlands in 16 Indian states. The February 13, 2019 order had directed the eviction of more than 11.8 lakh people living around forests in the name of wildlife protection.
The order was criticized by forest rights activists, forest dwellers and above all by the United Nations special rapporteurs for human rights. To protect the rights of these tribals and forest dwellers, the Government of India finally admitted before the Supreme Court that most rejections of claims for forest rights entitlements were illegal and requested the court to stay its eviction order. On 1st March 2019 Supreme Court stayed its own order to evict forest dwellers which was considered to be a major relief for such a huge population. But when it comes to protecting the rights of Scheduled Tribes (ST's) and Other Traditional Forest Dwellers of Jammu & Kashmir like Gujjars, Bakerwals, Pahadis, Chopans, Kashmiri speaking forest dwellers or even Dogri speaking people living around forests for ages the Government seems to have different yardsticks.
The Supreme Court directions came after the Union ministry of Tribal Affairs approached the court pleading for modification and a temporary stay on the implementation of the eviction order. The ministry maintained that Forest Rights Act 2006 was a welfare legislation and under the Act, the rejection of a claim does not ipso facto lead to the eviction of forest dwellers and tribals.
The ministry had also expressed concern over the high rate of rejections of claims and submitted that since the details of rejection claims have not been provided by the governments, it is possible the poor and illiterate forest dwellers may not have got due opportunity to substantiate their claims.
Recent action in Budgam
Very recently Forest Department officials chopped down hundreds of apple trees in Kanidajan and its surrounding villages in Pakher pora block of district Budgam. Forest Department officials allege that a large chunk of forest land has been illegally encroached by locals which includes traditional forest dwellers (Kashmiri speaking people) and Scheduled Tribe gujjars. The locals on the other hand claim that land has been allotted to them more than 60 to 70 years back by the Government under the "Grow More Food " programme. Earlier Forest department officials had issued eviction notices to the people living near forests under section 79-A of Indian Forest Act 1927. The notices were issued in many districts directing the local population to surrender land to the forest department and cut down all the fruit or non-fruit bearing trees that were planted on the land under control of the local population. A demolition drive was undertaken by the Government in Pahalgam area of South Kashmir as well wherein several huts of nomadic Gujjars were raised to ground. These huts locally called Kotha's are used by nomadic populations in summer months when they migrate to upper reaches in search of fodder for their livestock.
Forest Rights Act (FRA-2006)
On one hand Government is cutting down apple trees grown by forest dwellers around their villages and on the other hand Government claims that they would be going to implement the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 commonly known as Forest Rights Act (FRA-2006). As mentioned in my previous article the Forest Rights Act (FRA- 2006) recognizes and vests the forest rights and occupation on Forest land in favour of Forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD) who have been residing in such forests for generations. This act also establishes the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance of the forest dwellers. Issuance of eviction notices goes completely against the FRA 2006. Before the abrogation of article 370 this law was not applicable in J&K but from October 31st Forest Rights Act is very much applicable here and the Govt is doing a criminal act by dislodging traditional forest dwellers from their ancestral land. Where shall these people go.
Who has to implement FRA?
Noted adivasi and forest rights activist and researcher C.R. Bijoy is the foremost independent researcher who has been involved with the implementation of the Forest Rights Act 2006 in an interview with note Journalist Muzamil Jaleel said that it is the village panchayat through its Gram Sabha or Deh Majlis not the Government which has to implement the FRA 2006. I had mentioned this in my previous piece as well during the concluding para. Unfortunately, the village panchayats across Jammu & Kashmir are not at all updated or informed about this and the Government is trying to do everything on its own. If the Gram Sabha which is called Deh Majlis in J&K under J&K Panchayati Raj Act 1989 has to implement the Forest Rights Act (FRA-2006) how dare Forest Department will issue eviction notices to people living around forests or chop off their apple trees?
The Forest Rights Act (FRA-2006) requires that the claimant should be a Scheduled Tribe in the relevant area. In some States, a person's Scheduled Tribe status is restricted to a particular area or District within the State. However, in other States, as per the Constitution (Scheduled Tribes) Order, 1950, the Scheduled Tribes are recognized as such for the entire State, and not just to the area of their domicile or the Scheduled Area or any other geographical location. For example, in Himachal Pradesh, members of the Scheduled Tribes from Lahul and Spiti (Scheduled Area) who may have moved to Kullu or Manali (a non-Scheduled Area), continue nevertheless to remain Scheduled Tribes (ST's) under the Presidential Order of 1950 and are not divested of such status merely due to a change in their domicile within the State. Same is the case with J&K. ST's from Kupwara or Kishtwar living in Srinagar or Jammu continue to get ST benefits there as well. The criteria and evidence required for Other Traditional Forest Dwellers (OTFD) like pahadis, Chopans, Kashmiri or even Dogri speaking people living in forest areas of Ramban , Reasi , Doda etc to claim rights under FRA are a) Primarily resided in forest or forests land for three generations (75 years) and b) Depend on the forest or forests land for bonafide livelihood needs. Section 2(o) of FRA 2006 refers to "any member or community" for this purpose, and hence if an OTFD village establishes its eligibility under the Act, there is no need for every individual to do so separately.
The requirement under Section 2(o) of FRA 2006 is that the "member or community" should have "primarily resided in" forest land for at least three generations prior to December 13, 2005 (for all states except J&K). In the case of Jammu & Kashmir the date will begin from Oct 31st 2019 in my opinion as FRA 2006 was extended to J&K from the same date. The community should depend on the forest for their bonafide livelihood needs. Once this eligibility criteria is fulfilled, the vesting provision of the Act, namely Section 4, does not differentiate between forest dwelling STs and Non ST's also called Other Traditional Forest Dwellers (OTFDs). Any two evidences specified in Rule 13 can be provided while making a claim. Insistence of any particular form of documentary evidence for consideration of a claim has been held to be illegal by the Gujarat High Court in Arch Vahini vs. State of Gujarat & Ors
Recent meeting by Govt
Very recently Chief Secretary chaired the maiden meeting of the UT-level Monitoring Committee on FRA 2006. Administrative Secretaries of the Revenue, Forest, Ecology & Environment, Rural Development, and Tribal Affairs departments besides Principal Chief Conservator of Forests (PCCF) participated in the meeting. CS informed that under the FRA 2006, the forest-dwelling scheduled tribes and other traditional forest dwellers will be provided the rights over forestland for the purpose of habitation or self-cultivation/livelihood; ownership, access to collect, use, and dispose of minor forest produce, and entitlement to seasonal resources among others. The Chief Secretary impressed upon the Forest Department to kick start the initial survey of claimants by the Forest Rights Committees and assess the nature and extent of rights to be recognized and protected.
We are trying our best to create awareness on FRA in remote areas. People are protesting but no Govt official is ready to listen to them. I recently met 108 year old Zooni Begum in Zilsidara Branwar in Budgam district. She was in tears after getting eviction notice from Forest Department. If the Supreme Court has stayed all eviction proceedings across India, how can the government ask people to surrender the land in Jammu & Kashmir? The intentions of Govt are not clear vis a vis implementing Forest Rights Act 2006 in J&K. On one hand Govt assures to give the STs and other forest dwellers their rights and title over the forest land but the actions like issuance of eviction notices and chopping of fruit trees of these poor people is defeating the essence of this great legislation. The Forest department is trying its best to dispossess the forest dwellers of their land which they have been cultivating for several generations. If these people are evicted from their villages what is the purpose of implementing FRA 2006 in Jammu & Kashmir? The erring forest officers should be taken to task and we will be filing a formal complaint against them before the court of law..
Dr Raja Muzaffar Bhat is Chairman of Jammu & Kashmir RTI Movement. He is a Climate Action fellow at ANU Ahmedabad.