India: MAKAAM condemns the rape & murder of an 8 yr-old girl in J&K and all such acts ... Print E-mail

which violate women's bodies to terrorize marginalised communities and deny them their traditional lands and resources

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MAKAAM STATEMENT CONDEMNING THE ATROCITIES, RAPE AND MURDER OF A MINOR GIRL FROM PASTORALIST BAKARWAL COMMUNITY IN KATHUA AND THE CONTINUING ATROCITIES AND FORCED DISPOSSESSION OF HER COMMUNITY,
AND
AGAINST ALL SUCH ACTS THAT VIOLATE WOMEN’S BODIES AS SITES TO TERRORIZE MARGINALIZED COMMUNITIES AND GRAB THEIR TRADITIONAL LANDS AND RESOURCES

MAKAAM expresses grave anguish and outrage at the rape and atrocities perpetrated on the 8-year old minor girl of the Bakarwal community from Kathua district of Jammu and Kashmir, as reports pour in of numerous other instances of sexual violence against minors in other cities, towns and villages. We also oppose the forced evictions of the Bakarwals -Gujjars from their customary territories by the J&K administration and condemn the atrocities committed against the community. The deliberate efforts at communalization and land grab forms the social and political backdrop of this heinous atrocity.

The instance of violence against the minor girl in Kathua is not an isolated incident, but one among numerous others that bear evidence to the increasing incidence of rape and brutality against women and girls as sites for the assertion of increasingly masculinized caste- and religion-based patriarchies. In a context of exacerbating vulnerabilities of women, children, dalits, adivasis, minorities the increased resource grab across the country only serves to further worsen their situation. We condemn the marginalization, polarization and dispossession of marginalized minority pastoralist communities in Jammu and Kashmir and their denial of rights in their traditional territories where they have maintained their seasonal livelihoods.

Gendered Sexual Violence as an instrument of oppression
The atrocity, rape and murder of the 8 year old minor girl in Kathua brings to light the manner in which sexual violence against women and children is used as a tool to further subjugate marginalised communities. In this case, the brutalization of the minor girl is evidence of not only the grave physical insecurities within which Bakarwal women in J&K meet sustenance and livelihood needs in the context of communalization and violent dispossession from their traditional forest areas, but also exposes the perpetrators’ attempts to humiliate  the community by targeting its most vulnerable members.

While prosecuting perpetrators of sexual violence against women and children is already fraught with challenges in a patriarchal society, the endorsement of violent and exclusionary politics and laws by the present government further compounds these challenges and offers impunity to dominant groups. In this case, these phenomena are evident in the rallies subsequent to the incident of rape and murder by some elements among the settled villagers and lawyers against the filing of the charge-sheet, preventing the community from burying the minor girl in their traditional burial grounds, as well as orders mandating eviction of Bakarwals from their customary forests and refusal to extend the Forest Rights Act to Jammu and Kashmir (details below)
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The J&K government has failed in its legal and constitutional duty to secure the life and liberty of the minor girl who  was marked by multiple marginalizations of  age, gender, religious and tribal identity, and her vulnerable situation compounded by sustained efforts to evict her community from their land,. Instead, the government was instrumental in magnifying her vulnerabilities by attempting to forcefully evict her family and community, jeopardizing their livelihood and way of life, and then failing to provide any form of redress for the sexual violence.

Instead of implementing the Protection of Children from Sexual Offences Act (POCSO) and the recommendations of the Justice Verma Committee 2013, the central government has chosen to issue an ordinance, bypassing Parliamentary procedures, to introduce the death penalty in case of rapes of minors, further encouraging cycles of violence upon marginalized communities, despite studies that demonstrate the inefficacy of Death Penalty to curb such incidents of rape, and that a majority of those awarded the death penalty are themselves Scheduled Tribes and Scheduled Castes revealing  a further reinforcement of the vicious cycle of oppression and discrimination.

Marginalised and threatened communities and livelihoods

MAKAAM views this heinous crime against the young girl as an aggression against the community and as part of systematic attempts to intimidate, terrorize and drive out the community in response to their growing assertion for forest rights and secure livelihoods, as is in evidence in other parts of the country as well where communities have staked claims to their traditional rights. The Bakarwals- Gujjars are traditionally pastoralist communities, who spend summer in the high altitude pastures of the Kashmir and Ladakh regions. In the winter, they move with their livestock to the Shivaliks and the plains of Jammu province. The community was classified as a Scheduled Tribe in 1991, and continues to remain largely marginalized owing to their nomadic lifestyles and general apathy of policy makers towards their rights and livelihoods. The appropriation of the customary lands of this tribal community by the state and some sections of the neighbouring communities on communal grounds is rendered evident by their refusal to allow the minor girl’s body to be buried on lands owned by her own family!
 
Owing to the non-recognition of the rights of the community to their customary forest lands, the Bakarwals continue to be viewed as ‘encroachers’ on the same forests where they have been practicing their traditional vocation for centuries, a fact expressly recognized by the Jammu and Kashmir government in 1975 through its executive orders in 1975. However, the control of the colonial-era forest bureaucracy continues to be legally and institutionally entrenched in the region, as the Forest Rights Act 2006 (FRA) does not extend to Jammu and Kashmir, denying traditional rights to the 27 lakh Bakharwal- Gujjar population. In other states in India, the FRA recognizes the authority of the Gram Sabha over Community Forest Resources (CFR) under sections S.3(1)(i) and S.5, and the historical rights of forest-dwelling communities to cultivable land, grazing pastures, minor forest produce under S.3, among others. In the neighbouring states of Himachal Pradesh, the seasonal rights of pastoralists is duly vested and recognized under S.3 (1)(d), FRA. The non-extension of FRA to J&K permits the forest bureaucracy and state administration to prevent the community from using forest land for grazing and restrict access to traditional migratory routes. Areas used by the Bakarwals-Gujjars for seasonal migration have also been cordoned off , rendering habitation, collection of forest produce and water, grazing and movement difficult and also criminalizing them in the eyes of the state. Other issues like infrastructure, development of tourist resorts and linear infrastructure projects on traditional grazing areas have also made pastoralism  difficult and risk-fraught  for the community, already enmeshed in the midst of the  other deeper issues that have plagued the state of Jammu and Kashmir.

Grazing restrictions and lack of access to grazing grounds implies that they have had to wander further off from camps and villages hitherto familiar to them, exposing them to unfamiliar terrains and having to establish new social relationships in an environment fraught with suspicion. This has also created safety issues for women and children who are primarily responsible for tasks like collecting fodder and firewood, while also sometimes helping out with rounding off animals and collection of minor forest produce to augment family incomes.

In defence of their traditional way of life and to secure livelihoods, the community had recently begun to assert their rights to forests and resources, and called for  an extension of the Forest Rights Act 2006 (FRA 2006) to J&K. We acknowledge that the implementation of the Forest Rights Act has been a long-standing demand of the Gujjar and Bakarwal associations in the state and join our voice in solidarity with these groups in demanding that the Act be extended to the state as  deemed appropriate and necessary within the context of Jammu and Kashmir, in order to secure the lives ,livelihoods and bodily safety of women pastoralists and their brethren and to allow them and other communities to live amicably in the practice of their traditional occupations in the region. We urge the government to take necessary steps to adopt the enactment of the FRA 2006 for the state ensuring that women’s rights to forests and to forest resources and to representation are secured to ensure them their livelihoods and traditional practices. We press for the issue to be taken up and settled to ensure justice urgently in the upcoming assembly session of the state

Communal fault lines and resource contestations
The circumstances described above are affecting the pastoral lifestyle of the community, and have led to many within the community preferring to lead a sedentary lifestyle, choosing to settle down in their villages around Jammu division and in some cases also buying land. This has led to resource contestations between the Bakarwal community and other resident villagers. Since 2014, however, the situation has become increasingly tense, and the community has alleged that selective evictions and anti-encroachment drives against them have increased in the Jammu Division. They have also alleged incendiary speeches by the members of the ruling parties to incite violence against the community. In this case the selective implementation of the order passed in 2015 by the Jammu Development Authority, authorising evictions of pastoralist/ nomadic and forest-dwelling communities from forest areas, has been used for further communalization and exacerbated local conflicts. Subsequently, several settlements belonging to Gujjar and Bakarwal nomadic tribal community were destroyed and the families evicted from their traditional migratory routes. Incidents of desecration of religious structures of the community allegedly by the forest department, police department as well as the Jammu Development Authority for being situated on forest and ‘custodian property’ in the Jammu division have only aggravated the situation, and even led to the death of a Gujjar youth; These same authorities  have also been unable to prevent the lynching of members of the Bakharwal- Gujjar community from communal mobs that attacked them on allegations of engaging in cow slaughter.

In this context, where the security, lives and livelihood of the nomadic Bakarwal and Gujjar community are presently in great danger due to the polarization of the local communities, and in the absence of any policy to currently secure their rights of access and stay on forest and grazing land, we appreciate and register our support of the step taken by the Government of Jammu and Kashmir to  issuing a directive in February 2018, taking heed of the  crimes perpetrated, which states that no member of the nomadic communities will be evicted without prior approval of the Tribal Welfare Department of the state of Jammu and Kashmir. We register our firm opposition to the demand that the order be withdrawn.

We strongly condemn all forms of sexual violence against women and girls, as well as the attempts of the government, Lawyers Bar Association and vigilante groups of the majority population in the region to hinder constitutional access to relief and remedy. The non-extension of FRA to J&K, the eviction and dispossession of Bakarwals from their traditional homelands in a context of increasing communalization compounds the vulnerabilities of women and children to atrocities and violence. We stand in solidarity with the Bakarwal – Gujjar communities for their rights to sustain their pastoral nomadic lives and livelihoods and access to resources to sustain the same.

OUR Demands

We call upon the J&K and central governments to:

  • 1)    Bring perpetrators of the heinous crime of rape and murder of the minor girl to justice
  • 2)    Extend the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Forest Rights Act), 2006 to Jammu &Kashmir with full provisions for securing community and individual forest rights and rights to forest produce and to representation of women at least to the extent provided for in the FRA Act 2006. 
  • 3)    Ensure continuance of directive of February 2018 until a policy is in place to safeguard rights of pastoralists.
  • 4)    Withdraw the Central Government ordinance for the death penalty in cases of sexual violence, and demand that the POCSO be duly implemented to address such crimes against minors.
  • 5)    The state government should enact a law to protect the rights  and livelihoods of the Pastoralist communities
  • 6)    Restore the Bakarwal- Gujjar community rights to their traditional livelihoods and ensure the security of their community and especially the girls and women as equal citizens

For MAKAAM

Drafting team:
Shubhada Deshmukh             Soma KP                       Radhika Chitkara                    Nikita Sonavane
NFT MEMBER                    NFT MEMBER                    Lawyer, Member Makaam   Lawyer, Member Makaam