Before the semi-autonomous status of the north Indian state of Jammu and Kashmir was abolished by the Union government on August 5, 2019, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (also known as the Forest Rights Act) was not implemented in the state. The Bharatiya Janata Party’s (BJP) Jammu unit had cited the erstwhile semi-autonomous status of J&K as the main reason for non-implementation.

On August 5, 2019, the Union government passed the Jammu & Kashmir Reorganisation Act in the parliament. As per this Act, 153 Acts of the former state of Jammu & Kashmir have been repealed, 166 Acts have been retained from the former state and 106 new laws have been applied to Jammu & Kashmir. Among the new laws applied is the FRA.

This, the tribal activists and researchers argue, meant that the law should have been implemented on ground giving relief to the tribal population. But there are “no signs” of FRA being implemented, they have said. Under the Forest Rights Act, traditional forest dwellers are protected against forced displacements and have other rights as well, which include grazing rights, access to water resources and access to forest products (except timber).

Article 370 of the Indian constitution guaranteed special status to the mountainous erstwhile state of Jammu and Kashmir within the Indian Union, whereby it was empowered to constitute its own laws and had the discretion of implementing or not implementing central laws in the state. This is why FRA 2006, hailed as a historic and revolutionary law elsewhere in the country by tribal population and observers, was not being implemented in Jammu and Kashmir.

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Before the dissolution of the state assembly of former J&K state assembly, Qamar Hussain, a legislator of Peoples Democratic Party, had moved a bill in the former Jammu & Kashmir Assembly seeking implementation of the Forest Right Act in the state. But, the BJP opposed the bill. One of its former members and then Forest and Environment Minister, Lal Singh, told the assembly that Forest Rights Act cannot be implemented in J&K without the consent of the state legislature given J&K’s special status under the Indian constitution.

In the past four years, many eviction drives were carried out in some areas of Jammu city which prompted tribal leaders and news outlets to raise questions as to why the Forest Rights Act, which could have provided them protection against evictions, was not being implemented in Jammu and Kashmir.

Quoting Singh, media outlets reported in June 2015 that 1233 forest closures had been developed in Jammu & Kashmir state in the last three years and quoted him further as saying that 1,48,339.4 kanals (7,369 hectares) of forest land in Jammu division were retrieved from encroachers.

No relief

Tribal leaders and activists say that despite the FRA now being applicable in Jammu and Kashmir, they are yet to receive any relief from “persecution and a sense of insecurity.” According to tribal activist, Talib Hussain, “It is unfortunate that a perception was created in Jammu region that if Gujjar and Bakerwals (mostly Muslim) are allowed to avail forest rights, it will result in a demographic change in the non-Muslim majority districts of Jammu, Sambha, Kathua and Udhampur.” That narrative, he said, is compelling the people in these areas to oppose the implementation of the Forest Rights Act.

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“They have built a narrative that tribal people are land grabbers, forest encroachers and cattle smugglers. This is helping them [those who oppose the FRA in J&K] because this has influenced the public perception,” Hussain told Mongabay-India while citing some reports.

On the contrary, Hussain said, the Gujjars and Bakerwals are instrumental in protecting forests against timber smugglers and land grabbers. The FRA, according to him, recognises these services of the tribal people and respects their right to have access to forest land and forest produce except timber.

He said that after their migration from Kashmir in November and December 2019, “many nomad families were not allowed to build qulas (temporary structures). “These people are not aware that the FRA now stands applied in J&K so that they could have claimed their rights in court citing the FRA,” Hussain said and added that they don’t even have any awareness about how to do it.

Anwar Choudhary, President of Gujjar United Front, said that “when it comes to acting on laws which are against us, they are implemented right-away, but not the laws which are essential for the survival of tribal population.” He quoted the examples of tribal population being driven away from areas near forests and making grazing lands in forests out of bounds for Gujjars and Bakerwals of Jammu & Kashmir.

In Vijaypur village of Samba district, he said over 200 Gujjar families have been driven away without any compensation or resettlement.

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“We have been facing discrimination and the Forest Rights Act had provided us hope. But, it is so unfortunate that it is not being implemented despite the removal of Jammu and Kashmir’s special status which was being used as an excuse for not implementing it,” Choudhary told Mongabay-India. “Now, they have no excuse. But they are still managing to avoid its implementation. Who will listen to us?” he said and added that “a sense of insecurity and disappointment” is prevailing among Gujjars and Bakerwals.

Researcher of tribal issues, Javid Rahi, who is also the General Secretary of Tribal Research and Cultural Foundation (TRCF), said that he had hoped for rapid implementation of the FRA in Jammu & Kashmir after the removal of Article 370. “Till now we have not observed any signs of the FRA being implemented in Jammu & Kashmir. We demand its prompt implementation on ground by taking the necessary measures. This is a remarkable law and the tribal population should be no more deprived of its benefits,” Rahi, who has extensively researched on tribal population of Jammu & Kashmir, told Mongabay-India.

Once implemented, Rahi said, the law will empower the village committees to govern community forest resources and will democratise forest governance by securing rights of tribes of Jammu and Kashmir.

When contacted for his reaction, the principal chief conservator of forests (PCCF) Jammu & Kashmir, Mohit Gera, said that the role of forest department will only come into play when the law is implemented by the Ministry of Tribal Affairs in Jammu and Kashmir. “We will have a role in making it operational,” he said. As part of the implementation of the law, committees will be formed with representations from various departments and parts of administration as also from tribal population. But so far, no such process has started.

The tribal population of Jammu and Kashmir

According to the 2011 Census, Scheduled Tribes form 11.9% of Jammu and Kashmir’s population. However, Gujjars and Bakerwal activists claim that they constitute up to 20% of 12 million population of the erstwhile state.

“The census has under-reported the population of Gujjar and Bakerwals who constitute no less than 15 to 20 percent of total population of J&K. For example, the census was carried out when they had migrated to other places in various areas as part of their annual migration,” Rahi, told Mongabay-India.

Bakerwals, among the tribal population of Jammu & Kashmir, mostly depend on forest land for their livelihoods and shelter — most of them don’t own any land or shelters. Bakerwals primarily rear goats and sheep while Gujjars rear cattle. Gujjars and Bakerwals are spread across almost every district of J&K, though a majority of them are concentrated in Poonch, Rajori and Reasi districts.

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Bakerwals have also been the worst sufferers of the armed conflict in Kashmir. They have not only suffered persecution in forests by armed personnel in forests, but have also witnessed closing down of pastures for security reasons. After the closing down of traditional routes leading to over a dozen alpine pastures by the army after the inception of armed conflict in Kashmir, nomads have not been able to graze their herds in those pastures.

Rahi said that the hardships faced by nomads of Jammu and Kashmir have forced many of them to give up nomadic life-style. Quoting from his unpublished survey (in 2012) of tribal pastoralists, Rahi said that 39% respondents had given up on migratory traditions following the restrictions in the wake of conflict in the region.