For what reason is the removal of Kashmir’s Gujjar and Bakerwal people group from their customary backwoods lands unlawful and what’s the route forward for them?
The Timberland Rights Demonstration of 2006 perceives the privileges of Backwoods Abiding Booked Clans, or FDST, and Other Customary Woodland Occupants, or OTFD, to woodland grounds and produce aside from lumber. The law is educated by the agreement that FDST and OTFD are “basic to the very endurance and supportability of the backwoods biological system” and, in this way, the objective of woods preservation is served by letting them remain on their properties, not by removing them.
The law enshrines four main rights of the forest dwellers:
- Every FDST and OTFD family gets ownership rights to up to 79 kanals, or 4 hectares, of the forest land that they cultivated as on 13 December 2005. Even if this land that is being cultivated by the forest dwellers is entered as forest land on revenue records, it doesn’t matter. The ownership of 79 kanals of this forest land which is under cultivation of a family will have to be transferred to that family. They can’t be evicted out of that land.
- The FDST and OTFD have the right to extract forest produce other than timber. They have grazing rights to their forest lands, and they have the right to move on pastoral routes.
- In case they are illegally evicted and their homes and hutments are demolished by government agencies — like in Pahalgam recently as well as in Batote and other places in Jammu — they are entitled to relief and rehabilitation.
- The FDST and OTFD population has the “right to protect, regenerate or conserve or manage any community forest resource” traditionally in their use.
The Timberland Rights Act covers each Booked Clan individual who lives on woodland land and whose occupation is reliant on backwoods, as the Gujjar and Bakerwal people group seems to be. They must be living on woodland land on 13 December 2005. It likewise applies to any non-Planned Clan individual or network living on woods land for three ages or 75 years until 13 December 2005. This implies non-ancestral backwoods inhabitants have similar rights on the off chance that they satisfy the inhabitance condition.
In what capacity can an individual or a family guarantee their privileges under the Woods Rights Act? The law requires the state to set up four councils to check each case and grant possession rights. An individual petitioner or network needs to initially move toward the town panel, which will vet the case and make a proposal to the tehsil or sub-division advisory group, and afterward the region board of trustees.
There’s an observing advisory group at the state or association domain level too. The boards of trustees must have individuals from FDST and OTFD populaces as additionally delegates from the organization. The choice of the area advisory group “will be conclusive and authoritative”. Any individual or family granted possession rights to the woods land, be that as it may, can’t sell it.
This means that the Forest Rights Act completely shields FDST and OTFD populations from eviction from their forest lands.
What is forest land? The Supreme Court’s judgment in the Godavarman case of 1997 defines the forest land as encompassing “forest as understood in the dictionary sense, but also any area recorded as forest in the government record irrespective of the ownership”.
On 6 September 2012, the public authority presented the Booked Clans and other Customary Timberland Inhabitants Acknowledgment of Woods Rights Correction Rules, which changed over every single woodland town, unrecorded settlements on backwoods land, and residences of backwoods tenants into income towns. These income towns included “the genuine land utilization of the town completely, including lands needed for current or future network utilizes, similar to, schools, wellbeing offices, public spaces and so on” This is additionally applicable for settlements in towns and urban areas that are recorded in income records as being on woods lands. This implies that the settlements that have come up ashore entered as woods land in towns and urban areas have rights to make sure about all the foundation essential for network use. The public authority is likewise compelled by a sense of honor to give all the fundamental offices, similar to streets, paths, power, water, instructive foundations and medical care offices and so forth to these settlements.
The Backwoods Demonstration clarifies that it over guidelines each other law that is operational. Woods Act is the last word.
This clarification of the law is urgent to understanding why the J-K organization has dispatched a drive to eliminate Gujjar and Bakerwal settlements from woods lands. J-K has not executed the Woodland Rights Act yet, despite the fact that it was stretched out to the region 15 months back. They haven’t framed the four boards to confirm cases to woodland grounds and award proprietorship rights. This ousting drive is, consequently, a “changing realities on ground” drive. In the event that the FDST and OTFD people group starts to use the Woodland Rights Act, it will be amazingly hard for the state not exclusively to expel them from their legitimate residences on backwoods lands yet additionally deny them all essential offices to live in those settlements.
The importance of the rights of the tribals and other traditional forest dwellers under the Forest Rights Act can also be understood from the Indian government’s arguments in the Wildlife First vs Ministry of Forest and Environment case.
On 13 February 2019, the Supreme Court ordered the eviction of more than 11.9 lakh tribal and other forest-dwelling families from forest lands across India on the grounds that their claims had been rejected by the committees established under the Forest Rights Act. This became a political issue, forcing the government to seek a stay on the eviction drive. The stay was duly granted on 28 February 2019.
Arguing for the central government, the solicitor general requested the court that “the eviction of the tribals may be withheld” because their eviction “without such information, would cause serious prejudice to them who have been residing in forests for generations…Many are poor and illiterate”. He added, “This is a human problem more than a legal problem…forests and tribals are to coexist.”
The Gujjar and Bakerwal community whose homes and hutments are being demolished have another legal protection: the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act of 1989, which does apply in J-K but is not being implemented as yet.
This law seeks “to prevent the commission of offences of atrocities against the members of Scheduled Castes and Tribes” and provides for special courts “for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto”.
Any atrocity committed against a person or family belonging to a Scheduled Tribe automatically falls under the purview of this law.
In 2018, the parliament passed the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Amendment Bill, 2018 to overturn a Supreme Court order framing procedures for arrests made under this law.
After this amendment, there is no requirement of a preliminary enquiry before an FIR is registered against anybody accused of committing an atrocity against an SC or ST person. The investigating officer doesn’t require approval for the arrest either and there’s no provision for anticipatory bail. So, if a SC or ST person approaches the police with a complaint under this law, they would have to file an FIR and arrest the accused. The law is quite stringent, even providing for an official to be punished for “neglect of duty”. There is also a provision for “externment of potential offenders” and “attachment and forfeiture of property”.
The law charges the public authority to set up unique courts to hear instances of monstrosities against SCs and STs and choose extraordinary public investigators for the reason. The J-K organization hasn’t done any of this up until now. However, as the law is stylish, individuals from the Gujjar and Bakerwal people group can document arguments under it against anyone who compromises them, powers their removal, or crushes their homes and hutments.