Historically the access, by India's Tribal community and other forest dwellers, to forest resources has been regarded as a proof of their anti-development stance; also attempts to encroach the forest land. The fact is that their identity, customs, traditional laws, and livelihood are closely related to their land, and natural resources. The land classification was carried out during British colonial rule in India without acknowledging the pre-existing rights of the communities living in forests. Same was the case in Jammu & Kashmir. The forest land continued to be the sole property of Government even if there were forest dwelling tribals (Gujjars etc), or traditional forest dwellers residing around for centuries. The British faced maximum rebellion from Tribal communities and other forest-dwellers against notification of their ancestral land being classified as reserve forest. As a result of the extension of stringent laws such as the Indian Forest Act, 1927, the Forest Conservation Act, 1980 and the Wildlife Protection Act, 1972 to Fifth Schedule Areas, not only have forest-dependent communities been denied access to vital livelihood resources, but their recognised rights were also further diminished. or totally eliminated.
Enactment of FRA
To correct the historical injustices the Government of India under the Congress led UPA-II Government passed the Scheduled Tribes and Other Traditional Dwellers (Recognition of Forest Rights) Act on 18th December 2006. This became effective from year 2008. Also known as Forest Rights Act (FRA), the law was aimed at providing these forest dwellers and tribal groups, their homes, land, and livelihoods with legal rights. The Act is essential to the rights of millions of tribal people and other forest dwellers spread through multiple states of the country, as it provides for the restoration of deprived forest rights.
This law could not be extended to Jammu & Kashmir because of article 370 but that should never have been an impediment for successive J&K governments as J&K legislature had powers to ratify any central law, or enact a similar version of the law in Jammu & Kashmir.
Challenging the Petition
A number of wildlife organisations argued that FRA 2006 has facilitated deforestation and encroachment of already endangered forest land. A number of petitions were filed by Bangalore based NGO called Wildlife First and a few retired forest officers, challenging the constitutional validity of the Forest Rights Act of 2006 as being violative of petitioners' fundamental rights guaranteed under Article 14 and 21 of the Indian Constitution. They also challenged the Act being ultra vires power of the Parliament under the Constitution. The petitioners sought the recovery of forest land from the possession of forest dwellers. The case had been going on in the Supreme Court since March 2008. 17 States including Andhra Pradesh, West Bengal and Rajasthan submitted the status reports on rejection of claims of forest dwelling Scheduled Tribes (FDSTs) and other traditional forest dwellers (OTFDs).
Based on these reports a three-judge bench of the Supreme Court (SC) led by Justice Arun Mishra on 13 February 2019 in Wildlife First vs. Union of India directed Chief Secretaries of these states to ensure the eviction of those people from forest lands whose claims under the Forest Rights Act have been rejected on or before 24th July 2019. The court held that there is no clarification as to how the granting of forest rights to proposed forest dwelling tribes and traditional forest dwellers will advance the cause of protecting and preserving our national heritage.
Opposition from Tribal Groups
The eviction order of the SC drew flak from tribal rights groups and activists. There is a principle in the international law that who occupies an unclaimed land, would be the owner of that land. In fact, this was one of the principles recognized by the Parliament when it took up the issue of bringing in a legislation to remove a sense of alienation amongst the Scheduled Tribes (STs) and other traditional forest dwellers (OTFD) across India. The Scheduled Tribes have been the first occupants of the unclaimed forests and they were, and are, dependent on them for their livelihood and other essential requirements.
On 27 February 2019, the Ministry of Tribal Affairs moved to Supreme Court (SC) seeking urgent hearing in this case. In its plea the Ministry sought modifications of the SC's previous order. It urged the top court to direct state governments to file detailed affidavits on the procedure followed while examining claims, and details regarding rejection of claims. Till this was done eviction of forest dwelling tribes and other traditional forest dwellers was to be put on hold. The said stay order has been extended several times since then.
Eviction Stayed by SC
After intervention from Govt. of India, the apex court had to put on hold its eviction order of 13 February. A two-judge bench comprising Justices Arun Mishra and Naveen Sinha directed the state governments to file an affidavit giving details about the process adopted in rejecting the claims of forest dwelling Scheduled Tribes and other forest dwellers. SC stayed the execution of its earlier order and directed the states to submit the progress report with regard to the implementation of this act, and till that time no evictions or any coercive steps should be taken by any of the state governments against any forest dwellers whether they are eligible or ineligible. The Ministry of Tribal Affairs in its affidavit before the Supreme Court said that the high rate of rejection of claims was mostly due to wrong interpretation of the Forest Rights Act.
Why Evict Forest Dwellers in JK ?
Over the past month a number of people belonging to the tribal groups and traditional forest dwellers in J&K have received eviction notices from the Forest Department asking them to surrender the land they are in possession of for several hundred years. In Kanidajan village of Budgam as many as 10,000 apple trees were axed by Forest officials. The action taken by Govt fundamentally violates the FRA. There was an uproar over it in the media. National and international media exposed Govt's action in Kanidajan, Zinsidara, Pahalgam, and several protests were held by activists and forest dwellers especially in Budgam district. The Government stopped further action and assured to roll out the FRA in J&K.
While the Supreme Court has already stayed evictions of more than a million forest dwellers whose land claims have been dismissed, it is explicable as to why J&K Govt. is so desperate in removing the tribal communities from their traditional land? People, whose apple trees have been axed, should be compensated and action be taken against the officers who ordered to vandalize the apple trees. FRA is a progressive legislation aimed at empowering forest dwellers. Government has finally decided to implement FRA. Let us hope that this law would be implemented in letter and spirit in Jammu & Kashmir.
Danish Yousuf is pursuing Masters programme in Social Work at Delhi University.