Constitutional rights of tribals in Jammu and Kashmir

Tariq Aziz Choudhary
This article is an attempt to understand the Crisis of Constitutional Rights of Gujjar and Bakerwal Tribal in J&K State. The constitutional provision for tribal which the State of J&K is ignoring since their enactment like Political Reservation for Tribal in J&K State in spite of having hollow status of Schedule Tribe (ST) for these tribes interestingly Schedule Caste (SC) are enjoying political reservation in the same State, non implimenting of Forest Right Act (FRC) 2006 which is one of the parental rights and identity of tribals is still not implemented in J&K and non inclusion of Gojri language in the Eighth Schedule of the Indian Constitution which is long pending demand of these Tribes. So here is the question why these Gujjar and Bakerwal Tribes are debarred from their Constitutional Rights in J&K.
Why not Forest Rights Act (FRA) 2006 for Tribals in Jammu and Kashmir:
The schedule Tribes of Jammu and Kashmir particularly the nomads (Gujjar and Bakerwal) are the major tribal group amongst many others. Tribes (nomads) are landless and practice trans humans, their livelihood is their livestock (Sheep, Goats, Cows and Buffalo). They are dependent on their pastures (Charaghas) since centuries. The Central Govt. has passed Forest Rights Act 2006 which became applicable across India in 2008 except the Jammu and Kashmir State. This landmark legislation for the protection of the tribes is also about the protection of forests. Because tribes are not encroachers rather they are protector and have a sustainable life style.
Forest Rights Act gives tribal community the right to protect and manage the forest. It talks about the rights of forest-dwelling communities over land and other property. It stands as a powerful tool to safeguard the rights of tribal population. In this context one can argue that it has played the role of correcting the historical injustice of forest laws. Today in Jammu and Kashmir both forest and nomads are dying because the home (forest) to nomadic tribes is in the hands of the majoritarian government officials and nomads are homeless on their own homeland.
Nomads are demanding the extension of this legislation in the State in order to safeguard their democratic rights and right to life with dignity. In central India mining has displaced the tribes from their inhabitants but in Jammu and Kashmir tourism is displacing the tribes from their homes. It is a restriction against the interests of corporate and capitalists unfortunately in the State of Jammu and Kashmir where it is not applicable but tourism industry supported by the government is violating the tribal rights and also encroaching the pastures of the nomads by declaring these pastures as tourist spots. The major tribal land anchored by Govt. are Peer ki Gali, Gul Marg, Yus marg are the famous tourist spots on the pastures of nomadic tribes. This has led to massive displacement of nomads from these areas. The passage of Forest Rights Act is the outcome of a long struggle of tribal community and tribal rights activist. But unfortunately it has not been extended to the State of Jammu and Kashmir.
Why not Political Reservation for Schedule Tribal (ST) in Jammu and Kashmir even Schedule Caste (SC) are having this Political Reservation:
Article 330 and 332 of the Constitution of India has provided the Schedule Tribes with reservation or positive discrimination in the state and Central Government jobs and services. It has also reserved seats in Lok Sabha and Vidhan Sabhas or State Legislative Assemblies. Article 330 provides Reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People. Article 332 provides Reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Legislative Assemblies of the States.
Article 16 (4A): This allows the state to implement reservation in the matter of promotion for SCs and STs but recently the state of Jammu and Kashmir has stopped the reservation in promotion and now the matter is sub-judicious.
Except reservation in jobs the various services provided by the Constitution of India and reservation of seats in the state Legislative Assemblies have not been implemented in the state of Jammu and Kashmir. It becomes problematic when on the one hand the state government is implementing various central government laws in the state. These laws include Food and Security Act, Goods and Services Tax (GST) and reservation of seats for SCs but still the State Government is not willing to provide reservation to STs in the state Legislative Assemblies. The dominant ruling class such as Kashmiris and Dogras who constitute the majority are not willing to implement these laws in the State which consequently leads to the exclusion of the schedule tribes of Jammu and Kashmir from the mainstream political system.
Non-implementation of Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) Act 1996 is another stumbling block for the tribal in Jammu and Kashmir. This Act gives them autonomy in various areas. It was enacted after the Bhuria Committee report 1995 and provides autonomous power to Gram Sabhas to protect and preserve the tradition of the tribal community. It also intervenes in the issues of land acquisition and forest produce. Gram Sabhas have right to mandatory consultation in matter of land acquisition and rehabilitation. This has not been extended to the state of Jammu and Kashmir where a major population comprises of Schedule Tribes. A serious consideration is required in the case of schedule tribes of Jammu and Kashmir in particular to protect the cause of nomads who are landless and also victim of evacuation drive due to non-availability of various tribal rights available in other parts of India.
Why Gojri Language is not in the Eighth Schedule of Indian Constitution:
Language is fundamental aspect of individual’s and group’s identity. The choice of language is a choice of identity. It is because language is essential feature of any culture’s existence. It gives a sense of belongingness with a particular group of people. Gojri language is spoken not only in the state of Jammu and Kashmir but in many other parts of India such as Himachal Pradesh, Utrakhand, Punjab, Haryana, Delhi, Rajasthan, Madhya Pradesh, UP and Gujarat. Its shades are in Haryanvi, Gujarati and Rajasthani. In Jammu and Kashmir it is considered as the second richest language after Kashmiri language in terms of literature. Earlier the Gojri language was not the part of Jammu and Kashmir Constitution but after a huge struggle by civil society and political elites belongs to this language it has been added in Sixth Schedule of Jammu and Kashmir Constitution. So far as the question of inclusion in Eighth Schedule of Indian Constitution is concerned it fulfils all the criteria for becoming the part of Eighth Schedule of Indian Constitution. There is a constant demand for its inclusion in the constitution because it fulfills the entire prerequisite.
Why Development at the cost of tribals:
India’s mineral map offers vast, untapped reserves of coal, iron, bauxite, manganese and chromite to investors. Such reserves lie under India’s most biologically diverse forests in Jharkhand, Chattisgarh and Odisha, with a range of tribes dependent on them. The case of the tourism industry development is not different in J&K which is going to take place at the cost tribal displacement from the forest land on which these tribal are living since time immemorial and the State is generating revenue from the homes (Dhoks) of these tribes and displacing them (nomads). Sixty percent of the State tourism industry is in the process of expansion which is totally tribal dominated forest area of the State.
(The author is Lecturer in Economics and PhD Research Scholar, Department of Economics, Jamia Milllia Islamia, New Delhi)

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