Opinion Forest Rights Act in Jammu and Kashmir: A transformation in the making

Transhumant pastoralism involves several months of grazing and camping in highland pastures, which are notified as demarcated forests and wildlife conservation reserves — these are under the ambit of stricter regulations and management guidelines. The historic experience of successful community-centric conservation models in India and the growing demand for recognising the rights of forest dwellers and protecting their interests when they conflict with infrastructure development requirements — such as forest harvesting, mining and industrialisation — led to the enactment of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act 2006 (the Forest Rights Act or FRA). The Act came into force formally in 2008, with the notification of rules and guidelines. This was implemented by all states except Jammu and Kashmir, which required special legislation to extend the applicability of FRA.

The states quickly adapted to the requirements of this landmark legislation, which not only recognised the rights of tribal communities and other forest dwellers over land and resources but also empowered them by provisioning the use of forest land for services like healthcare, education, power, potable water supply and connectivity. Such services were not permitted under forest laws, except for duly compensated land diversion, largely for mega projects. The communities were now in charge of the resources and the ways these ought to be utilised. The preliminary exercise was completed by states by the time rules were notified by the Centre.

Jammu and Kashmir was expected to implement the FRA like all other states in 2008, particularly given its large pastoral and transhumant tribal populations whose livelihoods are linked to forests. It, however, did not adopt the Act. Questions remain on the denial of rights to the tribal communities over a long period. The applicability of all central laws to Jammu & Kashmir post-2019 paved the way for FRA implementation. Delayed by a decade-and-a-half, the process started in 2021 with public communication, capacity building and framing of rules.

In September 2021, FRA implementation was formally rolled out at Srinagar and Jammu in historic ceremonies organised by the Tribal Affairs Department in collaboration with the Forest Department. The Lieutenant Governor handed over the titles to tribal forest dwellers. After prolonged indifference to recognising community rights in the state, the first step towards empowering these communities was taken. A lot was now required to be done collectively to give effect to this enabling provision.

The 2011 decadal census estimated India’s tribal population as 104.5 million or 8.6 per cent of the country’s total population. When J&K, with a tribal population of 12 per cent, began rolling out the FRA, 20 other states with sizable tribal communities had settled 47 per cent of the individual rights claims and 59 per cent of community rights claims over forest land. Many who had been silent to the deprivation of rights in J&K over a long period have been quick to question the perceived delay in the conferment of rights, months after J&K rolled out the FRA. It was expected that such stakeholders would come to the aid of the communities in claiming rights over the land. The challenge is much bigger than numbers, it’s about enabling communities to recognise rights.

An analysis of FRA implementation in J&K between September 2021 and May 2023 reveals that more than 4,500 titles have been issued, benefiting 60,000 families in accessing forest land and associated resources. Community Forest Resources titles have been conferred for 44.59 per cent of the 9,423 claimants. A lot is required to be done with regard to individual forest rights This requires handholding tribal families in applying for the rights with supporting records.

The FRA implementation, unlike any regular government welfare scheme, has to take into account traditional folklore and record-keeping mechanisms. It also has to reckon with accessing tough terrains, crossing geographical barriers, dealing with mobile communities, poor literacy rates and intangibles like the feeling of historic deprivation and exclusion. The process has to be led from within the community. The absence of a leadership that can enable people to access the provisions could increase the gap between the haves and have-nots in the community. The fact that the disposal rate of community FRAs is 45 per cent while that of individual rights is in single digits shows that families, left to their own, are not able to prove eligibility. The Tribal Affairs Department, NGOs, youth groups and other stakeholders have lately started an outreach to address this and are working on models to enable individual families to claim their rights under the FRA.

It is worrying that more than 92.57 per cent of the rejected claims have been declined by the Gram Sabha — a village body comprising officials, non-official and elected members of tribal communities. Only 7.43 per cent claims have been rejected at the Sub-Divisional and District Committee levels. This indicates the enormity of the task of building capacities of local self-government and community members — a core responsibility for government departments and the community leadership. FRA offers the legislative framework to recognise the rights of tribal communities and traditional forest dwellers, but its success would depend on an effective community empowerment approach.

In December 2022, the government implemented a new policy to do away with the commercial tendering of forest produce and empowered tribal pastoralists and forest dwellers to collect, process, use and commercialise non-timber forest produce for supporting their livelihood. This is a watershed moment in recognising the rights of pastoral tribes over resources, their sustainable use and conservation.

Other than accessing forest resources, the FRA enables tribal communities to avail services like healthcare, education, energy and connectivity. The poor literacy rates — less than 50 per cent among the tribal population and 16.74 per cent among migratory tribes — coupled with the absence of required records, seasonal migration and local socio-cultural issues pose a serious challenge to FRA implementation. It requires all stakeholders, governmental and non-governmental, in steering tribal communities towards rightful users for forest resources and stakeholders in conservation.

The writer is an IAS officer serving as Secretary, Tribal Affairs Department and actively working in J&K for FRA implementation since April 2021