The Central Law That Isn’t Being Allowed To J&K’s Muslim Tribals

19 Nov 2020 7 min read  Share

The government is demolishing decades-old homes, serving eviction notices to forcibly retrieve forest land from pastoral Gujjar and Bakarwals, scheduled-caste tribals who have used the land for centuries. More than 100 Indian laws now apply to J&K, but the Forest Rights Act is not yet being implemented

A man outside his demolished home in Lidroo village in Pahalgam.

Updated: Nov 20, 2020

Srinagar: Every summer, as the snow and cold receded, Mohammad Shafi Khatana, his family and their 40 head of cattle followed an ancient instinct and migrated to the higher altitudes of Lidroo village in south Kashmir’s Pahalgam area, 100 km south of here.

There, Khatana, 60, and his family lived in their temporary summer home, a kotha, made of mud and thatch, as they had for about 80 years, as many of his cattle-herding migratory tribe, the Gujjars, do. On 9 November, as the cold of winter set in, the Jammu and Kashmir (J&K) government smashed their kotha, one of many Gujjar summer dwellings so demolished.

Khatana’s son, 27-year-old Mohamad Rafiq Khatana, said the family’s winter home, 5 km south of Pahalgam, was also under threat, as they had been ordered to vacate it. 

“Our ancestor’s kotha has been demolished, the fencing of our land where we have been growing vegetables for years has been removed, and now we have been warned that we must leave our (winter) home or we will be forcibly evacuated,” Mohamad Rafiq told Article 14 over the phone. “Where will we go during winters? Where will I take my father, mother, wife and child?” 

Hundreds of Gujjars and Bakarwals—also migratory people, they rear goat and sheep—received notices over November across the former state for “illegal encroachment”. The notices, copies of which are with Article 14, threaten eviction if they did not leave in seven days, even as the forest and wildlife department demolished homes in Pahalgam’s Mamal, Gojran, Batakote and Aru areas.

The notices and evictions of these tribes—who form 15% of J&K’s population and at about 2 million are the union territory’s third-most populous community, after Kashmiris and Dogras—after decades of life led on land that once belonged to no one and since 1960 has been owned by the government, sparked accusations of religious bias against the Muslim Gujjars and Bakarwals, who since 1991 are classified as scheduled tribes (STs). 

The accusations of religious bias are especially relevant because the J&K government has consistently stonewalled demands to allow the Gujjars and Bakarwals the benefits of the Forest Rights Act (FRA), 2006, which they believed they would receive after the abrogation of Article 370

“If central laws are directly applicable in Jammu and Kashmir, then why is the Forest Rights Act not being implemented here?” asked Zahid Parvaz Chowdhary, president of the J&K Gujjar Bakarwal Youth Conference. “The Gujjar community is deliberately being targeted because we are Muslims.”

The demolitions and evictions are illegal under the FRA, and if any dwellings are indeed demolished, the law says compensation must be paid, journalist Muzamil Jaleel wrote in The Kashmir Walla, an independent website on 18 November. That, he argued, is why the FRA is being delayed.

‘Changing Facts On The Ground’

The end product of a long struggle by marginal forest-dwelling or forest-dependent communities, the FRA provides millions of tribals, farmers and others access to “minor” forest produce, other rights to make their livelihood from these lands and get formal titles. Gujjars and Bakarwals had been refused the FRA’s benefits since 2006 because central laws did not apply to J&K.

On 5 August 2019, when the government of Prime Minister Narendra Modi abrogated the Indian constitution’s Article 370, which granted special status to Jammu and Kashmir, 106 central laws, including the FRA, were applicable to the new union territory, administered from Delhi.

Except, 15 months after abrogation, the FRA is not being implemented in J&K.

“The government is saying it is working on its implementation,” said Javaid Rahi, general secretary of the Tribal Research and Cultural Foundation, a nonprofit organisation. “We are also approaching the court to put the eviction drive on hold till the land claims of forest dwellers are settled. They deserve dwelling rights on forest land which they have been using since centuries.”

Chief Executive Officer of the Pahalgam Development Authority (PDA), Mushtaq Simnani, claimed the government was only retrieving land from those who had “encroached” it over the years.

“There are various departments, such as the forest department, wildlife department and the PDA, whose land has been encroached,” said Simnani. “This demolition drive is not against any particular community.”

Kuldeep Krishna Sidha, deputy commissioner of Anantnag district, where Pahalgam lies, said the government had only removed unauthorised structures and fencing. “Over 1,000 kanals of land have been retrieved from encroachers in Pahalgam,” he said. 

J&K’s director of tribal affairs Saleem Malik claimed that the FRA would be implemented “soon” in the union territory.

“Three committees at the level of gram sabha (village), block (sub-division) and district have to be formed  (to verify and decide land claims), after which forest dwellers’ can make claims on land,” said Malik. “The district-level committee will be formed as soon as the district development council polls are held in J&K. Then, forest inhabitants won’t face any problems. These committees will resolve their issues.”

He said those who received eviction notices can also approach “concerned authorities” if they held “proper documents”. 

But Jaleel argued that the evictions are a “changing facts on ground” drive before these committees can be created. If forest tribes and dwellers begin to use the FRA, “it will be “extremely difficult for the state not only to evict them from their rightful habitations on forest lands but also deny them all necessary facilities to live in those settlement”.

Protectors Of Forests Evicted From Ancestral Land

On 10 November, when Abdul Kabir Shah, 28, was at home with his family, he was handed an eviction notice by forest department officials, as were about 150 Gujjar families in the Batakote area of Pahalgam.

Muslim Gujjar & Bakarwal tribals are being evicted from forest land they have used for decades.

Since then Shah has been in distress. He does not want to vacate the land where his forefathers have lived for years, but he does not have the money to approach a court. 

“The land belongs to our ancestors,” said Shah in a hushed, dejected tone. “ We have eight kanals (one acre) of forest land on which we have lived for more than 80 years, and the government wants to forcibly take that land from us.”

Shah worried what would happen to his family of nine—parents, brother, wife, four sons and a daughter—if they were evicted, what would happen to the maize and vegetables growing there that have sustained them for years. 

“Today, we are told to vacate the land, and tomorrow we will be asked to leave our house,” said Shah, a labourer. “Where will we go? How will I feed my family? I have proper documents of the land, yet we are being forcibly evicted.”

These documents, issued by J&K’s revenue department, mention the names of those who lived on forest land before the 1970s.

Traditionally regarded as protectors of J&K’s forest, Gujjars and Bakarwals said they did not see how they could ensure a judicial implementation of these rights. 

Iqbal Ahmad Famda, 70, a resident of Samba in the Jammu region said his family of eight sons, daughters-in-law and grandchildren was as worried as everyone else around them about the eviction notices. He was aware of their scheduled-tribe status and their rights under the FRA. 

“The eviction threat will always loom over Gujjars and Bakarwals until the Forest Rights Act is not implemented in Jammu and Kashmir,” said Famda, who makes his livelihood rearing sheep. “It is not possible for everyone to approach the court and seek justice.” 

In 2018, BJP Had Opposed FRA Implementation

Mohammad Ashraf, 40, a resident of Bakarwal Mohalla Nagrota in Jammu said at least 10 families have been told to vacate their houses there. 

“We have been living here for decades, but we are told we live illegally on forest land,” said Ashraf. “Had the Forest Rights Act been implemented in J&K, we would not have faced such a situation.” 

In 2018, Qamar Hussain, then a legislator of the People’s Democratic Party (PDP), had moved a bill in the former J&K assembly seeking implementation of the FRA. The PDP’s partner in the ruling coalition, the Bharatiya Janata Party (BJP), had opposed the bill, and Chowdhary Lal Singh, then forest minister from the BJP, told the Assembly that the FRA could not be implemented in J&K without the consent of the state legislature, given J&K’s special status under the Indian constitution.

The current attempt to evict the Gujjars and Bakarwals is not the first, and there were many attempts to evict them from forest land since 2015, when the PDP and the BJP formed a government in J&K. There appears to be a seriousness to the evictions this time because they are being followed by demolitions.

Irshad Ahmad Khatana, a social activist of South Kashmir’s Anantnag district, said more than 400 families in 14 villages of Pahalgam recently received eviction notices. 

“For the last week, houses and other structures built decades ago by Gujjars are being demolished,” said Irshad Ahmad. “We are living on this land for more than 100 years and have proper documents. Yet, land is being retrieved from Gujjars and Bakarwals.” 

On 16 November, PDP president and former chief minister of the erstwhile state of J&K, Mehbooba Mufti, visited Gujjar and Bakarwal families whose homes had been demolished in Pahalgam and accused the Centre and J&K governments of “deliberately” targeting Gujjar Muslims.

“The Gujjar and Bakarwal communities have always opted for peace, never violence,” said Mufti. “But the government is pushing them to the wall by illegally evicting them from land where they resided for centuries. Where will they go in this intense cold? I warn the government to stop this demolition drive or be ready to face serious consequences.” 

(Mudassir Kuloo is an independent journalist based in Srinagar.)