Jammu: The brutal gang rape and murder of an eight-year-old in Kathua, Jammu earlier this year shook the nation, igniting debates around issues of child safety and communal politics in the region. But a larger politics, one of land and a community’s rights over it, shroud the incident. The victim belonged to a Muslim pastoral nomadic tribe known as Bakarwals, who along with the Gujjars make up the third largest ethnic group in the state. Preceding the Kathua incident, the community has been the target of a large number of atrocities, including eviction drives, murder, and attacks led by cow vigilantes in the region.
“I personally don’t consider this to be a rape and murder case. If it is highlighted as a rape and murder issue it benefits those groups who want to evict these tribes,” says Dr. Zubair Nazeer, research scholar of tribals in Jammu and Kashmir. Nazeer goes on to explain that the larger issue here is that of tribes here not being given the same rights as those available to tribes across the country.
Gujjars and Bakarwals, along with Gaddis and Sippis, were given Scheduled Tribes status in 1991. Once declared a Scheduled Tribe, they were eligible for several programmes and welfare measures carried out by the government of India. However, Jammu and Kashmir by virtue of its special status guaranteed in Article 370 of the Indian Constitution, could not be enforced to apply the same laws. “It has been 29 years since we have achieved Scheduled Tribe status. But in the course of these last 29 years, there are practically no rights being made available to the tribes of Jammu and Kashmir, which are applicable to tribes of rest of India,” says researcher and tribal rights activist Javaid Rahi underlining the Forest Rights Act of 2006 and the Scheduled Tribes Atrocities Prevention Act of 1989.
What are the tribal rights in question here?
Historically, there was a relationship of peaceful coexistence that forest-dwelling tribal communities shared with the land in which they lived. The relationship was considered mutually beneficial and necessary for a sustainable ecosystem. However, when the colonial government took over the country, these customary rights of the tribes were no longer recognised. Legal provisions made by the colonial rulers empowered them to declare any piece of land to be a reserved area, thereby undermining the rights of the tribes dwelling on it. J&K, though, was not affected by the colonial measure since it was a princely state and never under direct British control. When an independent India came into existence, the new government also took no measures to rectify this issue for a very long time.
Kathua, Kathua case, Kathua gang rape and murder, Kathua charge sheet, Jammu and Kashmir, Bakarwal, Gujjar, Kathua news, Kashmire news, Indian Express Historically, there was a relationship of peaceful coexistence that forest-dwelling tribal communities shared with the land in which they lived. (Wikimedia Commons)
It was much later, in 2006, that a historic piece of legislation was passed which guaranteed ownership, usage, rehabilitation and conservation rights of forest-dwelling tribal communities over their land. The Scheduled Tribes and Other Traditional Forest Dwellers Act also known as the Forest Rights Act was passed on December 18, 2006, with an aim to redress the historical injustice committed against forest dwellers over the years.
The Act ensures the “right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers.” Further, it also ensures usage rights for grazing areas and other forest produce, right to be rehabilitated in case of illegal or forced displacement and lastly right to protect the flora and fauna of the forest area.
The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was passed for protecting the life and dignity of tribal communities across India. “To prevent the commission of offenses of atrocities against the members of Scheduled Castes and Tribes, to provide for Special Courts for the trial of such offenses and for the relief and rehabilitation of the victims of such offenses and for matters connected therewith or incidental thereto,” states the Act in its Preamble.
Further, for preserving the political rights of the tribes, Article 330 and 332 of the Indian constitution provides reservation of seats for STs in the Lok Sabha and the Legislative Assemblies. However, none of these rights are made applicable to the tribes of Jammu and Kashmir by virtue of the state’s special status. Neither have parallel laws been drawn up in the state to address the issues of the tribes.
Why are there no laws protecting tribal rights in J&K?
“STs are neither Kashmiris nor Dogras. They are a separate ethnic group. If 10 seats are given to STs in an assembly of 87, their issues can no longer be neglected,” says Dr. Nazeer explaining the lack of political rights being given to the tribal community of Jammu and Kashmir. Over time, the communities have undergone political mobilisation themselves and for the first time in the 2014 Assembly elections, nine Gujjars were elected. Soon after in 2015, a separate ministry was constituted for them. It is only now that a movement has emerged, demanding forest rights for the STs.
On August 7, 2015, J&K’s Minister of Consumer Affairs and Public Distribution & Tribal affairs, Chowdhary Zulfikar Ali reiterated the demand for the implementation of Forest Rights Act in Jammu and Kashmir. However, the tribal communities’ demand was turned down. More recently, in February 2018, CM Mehbooba Mufti issued a directive stating that no tribal community should be disturbed or dislocated till the time the state government can formulate a tribal policy. Further, if at all such an eviction drive was necessary, the directive stated that it should be done after consulting the tribal affairs department.
However, despite the current chief minister’s inclination to bring in a parallel tribal policy to protect land rights of the STs, it is facing a major roadblock from ally BJP. “One thing the PDP missed while forming the ministry is that BJP was always keen on having the forest ministry. Because that gives them the right to evict these people. When BJP came to power, this eviction drive intensified,” claims Dr Nazeer.
It is interesting to note that the BJP, which has all along opposed special status to Kashmir, is, in this case, opposing the implementation of the Forest Rights Act in the state, citing Article 370. In an interview with NDTV, J&K’s former minister of Forest, Environment, and Ecology, Lal Singh Chaudhary emphasised that the special status of Kashmir has saved the state’s forest cover from encroachment.
It is noteworthy, that since the BJP-PDP government has come to power in J&K, there have been other central laws which were extended to the state, citing that they were ‘pro-poor and pro-people.’
How has the absence of rights affected tribal communities in J&K?
Talib Hussain, a 29-year-old tribal social activist, has been on a barefoot campaign for the last four-five months. Hussain is the chairman of the All Tribal Coordination Committee and has been actively advocating for the enactment and implementation of the Forest Rights Act. “Agar forest right hota Jammu and Kashmir ke andar, toh aaj yeh bachhi kisi na kisi school mein padh rahi hoti, aaj yeh kisi rapist ya communal forces ke haath mein nahi aati. (If the forest rights act was implemented in Jammu and Kashmir then this little girl would be studying in some school, she would not come in the hands of some rapist or any communal forces),” says Hussain.
A large majority of the STs in J&K belong to the Gujjar-Bakarwal community to which the victim of the Kathua case belonged.They are a nomadic pastoral tribe, who are always on the move with their cattle. Inevitably, they settle on forested lands near water resources. “If we had forest rights, like in other states then we would have had right to education, movement, grazing, then at least our children would not be under threat,” adds Hussain. The charge sheet filed against the Kathua case also mentions the threat faced by the community from the accused by virtue of their settlement in the area.
“In the course of investigation, it transpired that Sanji Ram S/o Des Raj R/o Rasana was against the settlement of Bakarwals in Rasana Kootah, and Dhamyal area, and always kept on motivating the members of his community of the area not to provide land for grazing or any other kind of assistance,” states the report.
In recent times, traditional livelihood choice of the Gujjar-Bakarwals is made to appear as a land encroachment move. A number of eviction drives took place in June 2015 following an order by the General Administration Department. Reportedly, these drives were mostly restricted to Muslim majority areas of Jammu like Kalakote, Bhathandi, and Shidhra, and involved demolition of huts. Similar eviction of Gujjar families have also taken place in Samba, to make way for a new All India Medical Sciences. In February 2016, a young Gujjar man in Samba was killed as residents of a Gujjar village were driven out.
Kathua, Kathua case, Kathua gang rape and murder, Kathua charge sheet, Jammu and Kashmir, Bakarwal, Gujjar, Kathua news, Kashmire news, Indian Express In recent times, traditional livelihood choice of the Gujjar-Bakarwals is made to appear as a land encroachment move. (Wikimedia Commons)
Further, there appears to be a communal angle in the method of eviction as well. “The same eviction does not take place where Gaddis and Sippis are present, who are non-Muslim tribes. They are in Kathua, in Sambha, they are not evicted despite being tribal communities. So, of course, there is a communal angle,” says Nazeer
“These evictions are happening for a simple reason. They want the tribal communities to be evicted before the Forest Rights Act comes into place. So that in case the Forest Rights Act comes inthe to picture, these communities will not be able to prove their ownership claim,” says Nazeer, explaining that the Kathua case needs to be located within this larger issue of tribal rights. (Courtesy: Indian Express)
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