Mohammad Ahsan Wagay does not remember which day it happened. His memory is blurred by the shock. Sometime in the third week of November, a team of forest department officials arrived at Kani Dajan village in Central Kashmir’s Budgam district. They left behind a trial of destruction, cutting down hundreds of apple trees and damaging other crops on forest land occupied by village residents.
Wagay’s orchard was also flattened. “They axed around 200 of my apple trees,” he said. “They just came and felled our trees. They didn’t even give us a chance to uproot them on our own. When I went to my orchard, I wanted to cry.”
Three days earlier, Wagay said, the department had issued show cause notices to occupants of forest land in the village. “The notice said that we had illegally occupied forest land and asked why we should not be evicted,” said Wagay. But he had not imagined that they would chop down the trees so soon. “It will take 50 years for new trees to become like the ones they cut down,” he explained.
Residents across Budgam district estimate around 10,000 fruit-bearing trees have been chopped down by the forest department since November. “It’s heartbreaking to look at these broken trees,” said Wagay. “We had nurtured them like our children.”
Abdul Hamid Dar’s family, who live in Budgam’s Brari Pather village, got a show cause notice as well, not just for fruit trees but also for their home, which is built on forest land.
Around three weeks ago, a group of forest department officials knocked on their door. “They asked us to cut down all the trees on our land within 15 days or else they would do it,” recalled Zareena Bano, Dar’s wife. “They asked my husband to show them ownership documents for the land on which our house and cow shed sits. One of the officials told him that if he’s unable to produce those documents, then he [my husband] should get a bulldozer to demolish the house.”
Dar is a pir, a faith healer, who shares a two-storey concrete house with his brother, Mohammad Yusuf. The family depends on a small apple orchard surrounding the house for their livelihood. “We have lived all our lives here,” said Bano. “We had an old decrepit house and a cow shed here. We demolished that and constructed a new one. After that, we built a new cow shed as well. Nobody raised any objection then.”
The 15-day deadline to cut down their trees has already ended. “We heard that the matter has cooled down with the elections,” said Bano, who has two children. She was referring to the local government polls currently being held in Jammu and Kashmir. But the reprieve, she fears, will be brief.
“Let’s hope they don’t come to harass us again,” said Bano. “Where will we go without our trees and our home?”
A legal tangle
Since November, the Jammu and Kashmir government has launched an eviction drive across the Valley, demolishing makeshift huts used by the nomadic Gujjar and Bakarwal communities, cutting orchards on forest land, sending notices to forest dwellers to vacate forest land.
Forest dwellers and tribal communities assert that the land in question has been in their possession for decades and no government interfered before this. Even though they were not given ownership rights, they say, the governments of the former state of Jammu and Kashmir did not object to their presence on these lands. “We have been tilling this land for the last 200 years,” protested Wagay. “My forefathers have cultivated this land and we are doing the same. How can it become illegal today?”
The forest department claimed it was following court orders. “There was a high court direction to clear forest land of encroachment and in that process some show cause notices have been issued,” explained a senior official from the Jammu and Kashmir Forest department. “In certain cases, eviction notices have also been issued.” According to the official, an estimated 15,000 hectares of forest land is under encroachment.
A division bench of the high court in Jammu had passed the order in question. It was acting on a public interest litigation filed by a non-governmental organisation called SAVE (Save Animal Value Environment). But Shakeel Ahmed, the lawyer representing SAVE, said they had never taken up the question of forest land.
“We had filed the PIL to regulate the functioning of milk dairies in Jammu,” said Ahmed. “The high court took suo motu cognisance of forest encroachment in that case. It asked the government to submit how much forest land is under encroachment. The government replied 3.5 lakh kanal [43,750 acres] of forest land was under encroachment and gave the names of 64,000 encroachers.”
The petitioners went back to the court, Ahmed said, to point out that most were poor families who should not be harassed. On October 7, the court asked the government to submit a list of the 50 largest encroachers and action taken against them. The government compiled the list, Ahmed added, but most of these individuals had already got a stay against eviction.
There was another factor that had not been taken into account when the government embarked on evictions. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, had come into force in Jammu and Kashmir, from 2019, after the former state was stripped of special status and split into two Union Territories. The act recognises the occupation rights of Scheduled Tribes and other traditional forest dwellers. For over a year, the government did not move to implement the provisions of the law in Jammu and Kashmir.
When the eviction drive was in full throttle, it finally announced that it was going to implement the Act. Ahmed was indignant. “Why did you not inform the division bench that you are implementing the Forest Rights Act?” he demanded, referring to the government.
For now, it has put a brake on evictions. “We are busy training our staff and officials in the rules and guidelines under the act,” said the senior forest department official. “Till that time, we have put the process of clearing encroachments on hold. We were to issue thousands of notices. However, only a few hundred have been issued.”
Special status versus forest rights?
The Forest Rights Act has been a long time coming in Jammu and Kashmir. When it was first enacted in 2006, Article 370 of the Indian Constitution was cited as a reason for not implementing it in Jammu and Kashmir.
Under Article 370, which guaranteed the former state special status and the right to have its own constitution, no Central law could be implemented in Jammu and Kashmir unless it was ratified by the state assembly. However, that had not stopped Delhi from extending Central laws to Jammu and Kashmir through presidential orders. In some cases, the state government formulated its own version of the Central law.
When a government headed by the People’s Democratic Party came to power in 2014, it had tried to extend the law to the state. But the party faced resistance from its coalition partner, the Bharatiya Janata Party. At the time, the BJP had cited Article 370 to prevent the implementation of the Forest Rights Act.
“Once the Forest Rights Act is implemented, most of the beneficiaries will be the nomadic Gujjar and Bakarwal communities, who are Muslim,” said a People’s Democratic Party leader who had been a minister in the coalition government. “While this might be acceptable to BJP in Kashmir, it’s hard for them to see Muslims become title holders on forests in Jammu.”
In Jammu, evictions targeting Gujjar and Bakarwal settlements had been routine since 2015, and rightwing groups had agitated about “land jihad” by Muslim-majority Kashmir.
Then on August 5, 2019, a BJP government at the Centre revoked special status under Article 370, removed protections under Article 35A and split the state of Jammu and Kashmir into two Union Territories. With the state constitution gone, most state laws were stripped away and replaced by Central laws, including the Forest Rights Act.
Right to live in forests
“The Forest Rights Act came out of a nationwide struggle by Adivasi and forest dweller organisations,” explained Tushar Dash, a researcher on tribal rights in Odisha. “The context was very similar to what is happening in Jammu and Kashmir – forest dwelling communities were treated as encroachers. The Forest Rights Act meant the undoing of historical injustices meted out to these forest dwelling communities.”
To qualify for the rights under the act, these communities should have occupied forest land before December 13, 2005. The act recognises the rights of Scheduled Tribes as well as “other traditional forest dwellers”, those who had lived and depended on forest land for at least 75 years before December 2005.
“Forest rights are usufruct rights, not ownership rights in the nature of private property,” explained Shomona Khanna, an advocate who practises in the Supreme Court as well as the Delhi High Court. “Forests are essentially held in public trust by the government. What the Forest Rights Act does is, it gives the forest dwellers access rights to live, hold and cultivate on the forest land under their occupation. Besides, it also gives dwellers the right to use minor forest produce and pastures as well as fishing rights. Then there are community forest resource rights, which are relevant in the nature of conservation rights and preserving the ecological balance of the forest.”
The land claimed by forest dwellers cannot be alienated or transferred to anyone except by inheritance.
On December 1, the Jammu and Kashmir administration announced the formation of various committees mandated by the Act. Each committee will have representatives from Schedule Tribes, including women.
The process of recognising forest rights is initiated at the level of the gram sabha, or village assemblies where women can also participate. The sabhas are tasked with receiving title claims from individuals or a community, consolidating and verifying them, and preparing a map delineating the area of each recommended claim.
The sabha then passes a resolution and forwards this to the sub-divisional committee, which then prepares a record of forest rights. The final power to approve forest rights in favour of claimants lies with the district level committee. The Jammu and Kashmir government has set March 31, 2021, as the deadline for creating a record of forest rights.
‘Can’t be legal’
Khanna pointed out that forest dwellers have an added layer of protection the day the Forest Rights Act comes into force.
“In the case of Jammu and Kashmir, that date is October 31, 2019,” she said. “When the Jammu and Kashmir Reorganization Act came into force, Section 4(1) of the Forest Rights Act, under which the Central government recognizes and vests forest rights in the forest dwelling communities, also became operational.”
The show-cause notices issued by the Jammu and Kashmir Forest department to “encroachers” across Jammu and Kashmir cite sections of the Indian Forest Act, 1927. But forest rights were already vested with forest dwelling communities, Khanna argued. “What remains after that is to go through the process of law and record these rights,” she added.
Dash pointed out that the forest department’s actions also violated the Supreme Court’s injunctions. On February 13, 2019, the Supreme Court had ordered the eviction of more than 10 lakh families after their claims under the Forest Rights Act were rejected. However, the court stayed its own order on February 28, 2019, directing the states to submit detailed affidavits about the procedures followed to assess the claims.
“The court has made it very clear that forest dwellers can’t be evicted,” said Dash. “The order came in a scenario where the claims under the Forest Rights Act had been rejected. Here, the process of claims has not even started yet. So it cannot be legal.”
Even without the Forest Rights Act, lawyers argue the forest department’s action in Jammu and Kashmir violates fundamental rights. “By no stretch of the imagination can any instrumentality of the state walk into people’s houses or their lands and destroy their livelihood without going through any due process,” said Khanna.