Has the J&K Administration Completely Misunderstood the Forest Rights Act?

While forest dwellers in states like Odisha reap the full benefits of the Act that ensures the security of their way of life, those in the union territory are steadily being denied their rights.

In all his 90 years, Mohammad Nengroo, also known as Mum Nengroo, had never imagined that he would one day be denied the right to bury members of his family in his own village.

But that was exactly what happened to him this year when the land around his hamlet of Nengroo Basti was fenced by the Jammu and Kashmir Forest Department, forcing him to bury his brother Ghulam Ahmad Nengroo and another relative, Mala Begum, on the premises of the village mosque instead. 

Ama and Mali’s Graves. Photo: Raja Muzaffar Bhat

The Nengroo family are forest-dwellers. In Jammu and Kashmir, many communities such as Gujjars, Bakerwals and others are traditional forest-dwelling tribes. Their way of life had remained reasonably undisturbed for centuries. But since October 31, 2019, when the Union government extended to J&K the Forest Rights Act (FRA) of 2006, a progressive piece of legislation that ensures the land tenure, food security and livelihoods of traditional forest dwellers, the majority of communities like that of the Nengroos have actually been treated more harshly than they ever had been before.

“The forest officials have fenced off our entire habitation,” said Mum Nengroo, distraught by this attack on his community’s way of life. “We are not even allowed to bury our loved ones here. The 15 families who live in Nengroo Basti did not encroach on this land but had been shifted here by the state government 14 years ago after landslides destroyed our own village. Why have they not provided us with land for a graveyard? People like me have grown up in these forests and today we are called encroachers and jailed. This is unacceptable.”

Also Read: As FRA Implementation Hangs Fire, J&K’s Nomadic Tribes Live in Uncertainty

Anticipation and apprehension

Mum Nengroo and his ailing wife worry that when they pass away, they will not be given the kind of burial the forest-dwelling communities of J&K consider proper.

But in January 2021, when a public outcry to implement the FRA in J&K ensured that the legislation was finally put into effect, the residents of Nengroo Basti, located in the Charar Sharief tehsil of central Kashmir’s Budgam district, had rejoiced, just like many other communities of forest-dwelling people. 

“We were told on radio and TV programmes by government officers that the FRA would entitle us to several rights, including the right to have a graveyard in our village and the right to acquire land for a school and health centre. But this seems to be a distant dream for the people living in this remote place,” said Akram Nengroo, a resident of Nengroo Basti. 

Not only has the rollout of the FRA not provided the nomadic communities with the Act’s promised benefits, but its extension to J&K has actually made life more difficult for them because the staff of the union territory’s Forest Department appear to feel that the legislation challenges their authority.

Mum Nengroo in tears. Photo: Raja Muzaffar Bhat

For the last couple of years, the forest department has rigorously fenced many forest areas in the union territory. People living in villages near forest areas allege that state-owned land and even grazing land (khahcharai) is being fenced by the forest department. Last year in Kanidajan village, six km from Nengroo Basti, forest officials axed 8,000 apple trees which they claimed had been grown on forest land. This was reported on several national and international media platforms, including the BBC. 

“The forest department was not so harsh with forest dwellers before the rollout of the FRA,” said Rouf Malik, director of the Srinagar-based NGO Koshish, which works for the education of tribal children. In the last year, the NGO has also focused on building awareness about the FRA. 

“They [the forest officials] are under the misconception that the FRA will let people take control of forest land. Thus the forest officers are directing their staff on the ground to ensure that there is no encroachment of land,” Malik explained.

He added, whatever the intentions of the officials, they are having a negative impact on the ground. “In some villages, members of tribes and other traditional forest dwellers are not even allowed to grow vegetables. Many are not allowed to collect timber from the forests to repair their damaged kothas (huts),” Malik said.

He said while the FRA can be used for forest conservation, the forest officials don’t seem to know that. “Section 5 of the FRA 2006 empowers the gram sabha (village council) to protect the wildlife, forest, and biodiversity of the village and ensure that adjoining catchment areas, water sources, and other ecologically sensitive areas are adequately protected. But there is no awareness about this and we are trying our bit in this direction,” he added.

Also Read: Why Is the Government Afraid of Implementing the Forest Rights Act?

Denied their homes

Kothas, the local name for the huts used by nomadic Gujjars and shepherds during the summer months, are made of logs, stones and mud. They are easily damaged by the snowfall of winter, meaning that every summer, they need to be repaired with fallen timber from the forest areas. But in dozens of cases that seem to make a mockery of the FRA, the migratory tribes are not allowed even to repair their kothas. 

This summer I met Azee Begum, a 65-year-old shepherd woman, in the Diskhal pastureland located at an altitude of about 3,600 meters in the Pir Panjal forest division of Budgam. 

Azee, her son, daughter-in-law and grandchildren were living in a tarpaulin tent supported by raw wooden panels. Their kotha had been among the half a dozen structures that had been torched some years ago by timber smugglers who had believed that the shepherds of Diskhal had informed upon them to forest officials.

Azee Begum. Photo: Raja Muzaffar Bhat

“We had hoped that we would be able to repair or reconstruct our damaged huts because the government had extended the FRA to Jammu and Kashmir. But things have become more complicated for us,” said Rasheed Chopan, Arzee’s son.

“The forest officials aren’t allowing us to repair our kothas. We don’t blame them because they have no orders from the top to permit these repairs. But for five months every year, we live in these tarpaulin tents in harsh weather conditions. Fast winds blow these sheets away almost every week, leaving us to fight the cold like animals. Meanwhile, the government continues to publicise the FRA. We Chopans (Kashmiri shepherds) are denied even Scheduled Tribe (ST) classification by the government,” he said.

Although the J&K legislative assembly had passed a resolution recommending ST status for Chopans nearly 20 years ago, that file has been gathering dust in the offices of the Union Ministry of Tribal Affairs ever since. 

Meanwhile, in Nengroo Basti, residents worry about the graveyard that the FRA ought to have given them but which the Forest Department has taken away.

The families who reside in Nengroo Basti actually hail from Sani Darwan village, two km away. After massive landslides hit Sani Darwan in 2007, completely destroying the homes and land of 15 families, the government settled these families on a patch of land between Sani Darwan and Chalyan villages. This place later came to be known as Nengroo Basti because most of the families have Nengroo as their surnames. The land in Nengroo Basti falls under the territorial jurisdiction of Darwan village, which itself is divided into two habitations, Sani Darwan and Wagen Darwan. 

Each family in Nengroo Basti was allotted about seven marlas of land (roughly 1,905 square feet) by the government and the same amount of land was allotted for a mosque and a school. However, no land was allocated for a graveyard. When this was pointed out to them, government officials apparently told the families to use a patch of forest land as a graveyard, but there was no official order permitting the families to do so. 

While the families did select and use a patch of forest land as a graveyard, burying several children there who had died in the village five to six years ago, the Forest Department came down on them harshly when the FRA was rolled out in J&K and has disallowed the use of that piece of land since then. Some people allege that the Forest Department, especially the J&K Social Forestry Department, has even fenced off the village common land.

Azee’s Tarpaulin shelter. Photo: Raja Muzaffar Bhat

Rights under the FRA 

Under the FRA – officially the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 – the STs and other traditional forest dwellers (OTFDs) have three important sets of rights: Individual Forest Rights, Community Forest Rights and Community Forest Resource Rights.  

The FRA recognises the rights of the forest-dwelling tribal communities and OTFDs to forest resources on which these communities are dependent for a variety of needs, including livelihood, habitation, and other socio-cultural needs. This includes the right to land for graveyards, religious places, schools, community centres, panchayat (village self-governing bodies) buildings, health centres and so on.

Individual rights provided by the Act include the rights of self-cultivation, habitation, grazing, fishing, and access to water bodies in the forests. Community rights include the right to intellectual property, traditional knowledge and so on.

Thus the FRA empowers the forest dwellers to access and use forest resources in the manner that they have traditionally been accustomed to and also to protect, conserve and manage forests and protect themselves from unlawful evictions. The Act also provides for basic development facilities for communities of forest dwellers, such as education, health, nutrition, infrastructure facilities and so on.

Also Read: Why India’s Forest Rights Act Is the Most Viable Forest Conservation Law

The FRA in Odisha 

While forest officials in J&K seem to be struggling to understand the FRA, the story is completely different for Odisha’s forest dwellers.

Just last month, two dozen villages in Ranpur block of Odisha’s Nayagarh district received about 14 community forest right titles from the government. None of the residents of these villages are classified as scheduled tribes. Instead, they are classified by the FRA as OTFD. 

While implementing the FRA, most states have focused on providing the benefits of the Act to their scheduled tribes, leaving the OTFDs side-lined. So when Odisha provided these 24 villages with community forest rights, it was a historic occasion, marked with a ceremony on November 22. 

I had been invited by the organisers of the ceremony to Ranpur, along with Nazir Ahmad Khan, the chairman of District Development Council (DDC), Budgam, J&K, to witness the presentation of their rights to the villagers.

The event, held in a remote forest village called Surkabadi in Ranpur block of Nayagarh district, located about 100 km from Odisha’s capital city of Bhubaneswar, had played out like a festival. Hundreds of women, men and children in their traditional colourful clothes had assembled in a field as early as 9 am on November 22, hours before the ceremony was to begin in the afternoon. So enthusiastic were the people that they were happy to wait for hours in the scorching sunshine for their MLA and other officers of the administration to arrive. 

When the event finally began, Satyanarayan Pradhan, the MLA of Ranpur, and Nazir Ahmad Khan jointly presented the Community Forest Rights titles to the villagers in the presence of officers from the forest, revenue and tribal affairs departments. 

The community rights conferred on the 24 villages included a joint title for a group of villages to collect and use firewood and household implements within and outside the traditional boundaries of the local forests. The villagers now have the right to collect, process, use and sell minor forest produce such as bamboo, kendu leaves, tubers and so on. They are also allowed to add value to this produce and store and transport it. The 24 villages have also, finally, been given rights to the water bodies in the forests, along with fishing and grazing rights. In the past, many residents of these villages had been jailed under the Indian Forest Act of 1927 for encroaching on forest land. 

None of the residents of the 24 villages have any desire to take advantage of the rights granted to them so recently. For the past 24 years, the people who live around the Ranpur forest area in Nayagrah district have been working for the conservation and protection of their forests and forest resources, including wildlife, under the banner of Maa Maninag Jangal Suraksha Parishad (MMJSP), which is a confederation of 132 community-based forest protection groups from 132 villages in the area. 

Now 73 years old, Arkito  Sahu, secretary of the MMJSP, had not needed legislation to know that the forests of India need protection. Instead, he had prodded the residents of 132 villages in Nayagrah district to work together to conserve the forests they depend on. 

To give them institutional support, V. Giri Rao, the director of the Bhubaneswar-based NGO Vasundhara, ensured that the great work done by the MMJSP was documented and that women were included in the forest committees. Since the enactment of the FRA in 2006, Vasundhara and the MMJSP have been working more rigorously to ensure that all the benefits of this legislation reach the forest dwellers of the Ranpur block.   

FRA claims accepted in Surkabadu, Odisha. Photo: By arrangement

Wrong agency in charge?

How does Odisha manage to use the FRA so effectively while the union territory of Jammu and Kashmir does what seems to be the very opposite?

The answer may lie in the agency that oversees the implementation of the legislation in J&K.

At the national level, the Ministry of Tribal Affairs oversees the implementation of the Act. Various states have made their Tribal Affairs Departments the nodal agencies for the implementation of the FRA. But in J&K, the administration helmed by the Union government has made the forest department the nodal agency to implement this law. 

“How can a divisional forest officer or range officer tell forest dwellers that they have certain rights to forests and forest produce?” asked Giri Rao. “The law is clear. The Tribal Affairs Department has to be made the nodal agency for FRA implementation. The J&K administration has committed a huge blunder by assigning this task to the Forest Department. This needs to be rectified.”

Since the FRA was extended to the UT, the J&K Forest Department’s actions have been so contrary to the intentions of the legislation that it is almost a joke. While the FRA recognises the rights of the forest-dwelling tribal communities and other traditional forest dwellers to forest resources, J&K’s Forest Department deprives them of these rights.

When J&K’s Lt Governor Manoj Sinha gave a speech for a programme titled ‘Agenda’ organised by the India Today media group, he said that the FRA had given the people of J&K new hope. 

But the situation on the ground at this time tells a story of no hope. 

Raja Muzaffar Bhat is a Srinagar-based activist, writer and independent researcher. He is an Acumen Fellow and can be reached at [email protected].