Pahari Tribe of J&K and its ST Status Struggle
Altaf Hussain Janjua
Altaf Hussain Janjua
Pahari Tribe of Jammu and Kashmir is as embedded in a mosaic of collective traditionalism and reflected through their common origin, common language, distinctive dress pattern, distinctive food habit, common psychological makeup, similar physical feathers, tradition organization in basic institutions of marriage, family and kinship, lower positions in socio-economic scale and relative isolation from the mainstream society, tantamount to make the Pahari Tribe of Jammu and Kashmir an ethnic Group.
Struggle for Recognition of endangered Cultural, ethnic and linguistic identity of the Pahari Tribe started in early 70’ when “All Jammu and Kashmir Pahari Cultural and welfare Forum was constituted. Pahrai Tribe having compact population Major pockets is found among the foothills of the Pir- Panchal range with major concentrations in Poonch, Rajouri, Baramulla and Kupwara. Besides these four major pockets, their habitations are also found in Anantnag, Kulgam, Shopian, Pulwama,Budgam, Ganderbal and Bandipora districts as well.
Constitution of All Jammu and Kashmir Pahari Cultural welfare forum on 1969-70, Karnah Cultural Club (1973), Establishment of Pahari Section in Jammu and Kashmir Academy of Art, culture and languages (1978), Pahari Programme and News from the then Radio Kashmir Srinagar ( 2nd October 1979), establishment of Pahari Advisory Board vide Order Number GAD-1439 (1989), twice Unanimous Resolutions in J&K Assembly & Council for ST to Paharis. Passing of Reservation act to Pahari Speaking People in 2014. Pahari Reservation Amendment Bill 2018 and granting of 4% reservation in Jammu and Kashmir from 2020, construction of Pahari Hostels are result of Five decades old struggle of Pahari Tribe for St Status which is still pending.
Term “Tribe” has not been defined in the Constitution of India. Generally it means a group of people that have the same language and customs or a social group composed chiefly of numerous families, clans, or generations having a shared ancestry and language Or a group of persons having a common character, occupation, or interest.
“Scheduled Tribes” means those tribes of India which have been notified under article 342 for the purpose of reservations in admission of professional educational, govt employments, Tribal Sub-plan and political reservations from Panchayat to Parliament as per proportionate to population.
The term ‘Scheduled Tribes’ first appeared in the Constitution of India. Article 366 (25) of the Constitution of India defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”. Article 342 prescribes the procedure to be followed in the matter of specification of scheduled tribes. Clause (1) of article 342 says that “The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be”. Clause (2) says “ Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause ( 1 ) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification”
The criteria presently followed for specification of a community as a Scheduled Tribe are : (i) indications of primitive traits, (ii) distinctive culture, (iii) geographical isolation, (iv) shyness of contact with the community at large, and (v) backwardness. However, these criteria are not spelt out in the Constitution. Government of India on 15.6.1999 (as further amended on 25.6.2002), has approved modalities for deciding claims for inclusion in, exclusion from and other modifications in Orders specifying lists of Scheduled Tribes (STs). Accordingly, only those proposals which have been recommended and justified by concerned State Government / UT Administration can be processed further. Thereafter, it has to be concurred with by Registrar General of India (RGI) and National Commission for Scheduled Tribes (NCST) for consideration for amendment of legislation.
Article 342 provides for specification of tribes or tribal communities or parts of or groups within tribes or tribal communities which are deemed to be for the purposes of the Constitution the Scheduled Tribes in relation to that State or Union Territory. In pursuance of these provisions, the lists of Scheduled Tribes are notified for each State or Union Territory.
The list of Scheduled Tribes is State/UT specific and a community declared as a Scheduled Tribe in a State need not be so in another State. The inclusion of a community as a Scheduled Tribe is an ongoing process.
In India 705 tribes have been notified as Scheduled Tribe Pahari Tribe of Jammu and Kashmir having ethnic, cultural and linguistic characteristics, socially educationally and economically backward, also fulfills all above parameters and is deserved to be notified as Scheduled Tribe.
The Govt of Jammu and Kashmir vide cabinet decision No. 159 dated 8-8-1989 identified and recommended to GOI the name of Pahari Tribe at serial Number One of along with other various groups for ST stat but GOI denied ST to them on the justification that they don’t qualify the required criteria. Apart from this the Pahari tribe also believes that their demand was turned down by Rajesh pilot who was himself a Gujjar leader and Hon’ble Union Home minister at that time. On 6th of February 1993 the then Governor of State G.C Saxena addressed a letter to Shiv Raj Singh Chouhan the then union home Minister urging acceptance of the state government recommendations regarding the grant of ST Status to Pahari Tribe. Governor of the State General KV Krishna Rao in his communication vide DO No GS/GOV(C) IG 193 dated 26 Dec. 19993 to Shr. Sita Ram Kesri, Union Minister of Social welfare Department made a strong case for early inclusion of Paharis among Scheduled tribes. The Governor reiterated the state Governments view that Paharis and Gujjars/ Bakarwals were culturally and racially similar and face the same problems arising out of socio-economic backwardness. Prime Minister Sh. HD Dev Gowda in Feb 1997 in public meetings in Uri & Rajouri committed for ST Status but his government didn’t last long as it fell short.
Hon’ble Former PM Sh. Atal Bihar Wajpaye in a public rally in Karnah in 1998 assured ST Status to Pahari Tribe. This can be verified from un-starred Rajya Sabha question No. 2399 in 13-08-20001. On 29 may 2011 the Then Chief minister of Jammu And Kashmir State addressed a letter to the prime minister pleading for grant of ST Status.
The chief minister drew the prime minister's attention to the assurance held out to the Paharies by late PM Indra Gandhi and Sh. A. B . Vajpayee. It was also mentioned in the latter that pahari people are socio-economically very backward and are facing the brunt of being inhabitants of the line of Control. In 2007 this matter was discussed in the meeting of the consultative committee of parliament for the ministry of Home affairs. The Minister of tribal affairs had informed the committee that ST Status had not been granted to the Pahari community of the state because the Registrar General of India (RGI) had not accepted their claim to be a tribe. The RGI was of the view that Paharis were linguistic rather than an ethnic Group. The Registrar General of India raised seven queries and sought their reply from Jammu And Kashmir State via a communication on 16 of March 2001. In response, the State Govt. Appointed S.L Bhat principal Secretary to Govt (Social welfare Department) who responded to queries of RGI vides Letter No. PSSW/03/261 dated 23/06/2003 and justified ST Status for Paharies by referencing different census reports and commitments from the time to time.
In 2012 Home secretary suggested that the state govt may constitute a commission to look into the issue and make suitable recommendations. A detailed socio-economic survey was conducted under Prof (Dr) Pirzada Mohammad Amin Committee which was approved by the J & K Govt Cabinet and sent to GOI. The Peerzada Amin Committee Report in its recommendations have categorically stated that owing to the cultural distinctiveness, vulnerable, socio-economic condition and isolation of Pahari Community, there is a desperate need to mainstream this community by bringing them within the ambit of positive discrimination as governed by the constitutional principle of affirmative action and as applied to other marginalized communities of the country. It has been observed during the macro-field study that the Pahari community people of Jammu and Kashmir state largely resembles stock of people with primitive traits like traditional marriage practices, dress pattern, shyness of contact, hairstyle. Etc. There the inhabitants of mountainous and border areas live in close proximity with nature and still depend on it for their basic needs such as food, fuel and energy. Agricultural and allied agricultural activities are their main occupation. A remarkable resemblance underlying the patterns of social organizations, culture and way of life can be found between them and other tribal communities of the state.
Pertinent to mentioned here that Kaka Kalelkar Commission, Gajendragadkar Commission, Sikri Commission, Wazir Commission, and the Anand Commission were constituted for different purposes by the successive Governments and none of the commissions recommend ST Status neither for Gujjar/Bakerwal nor for Pahari Tribe. For the first time in 1989 vide Cabinet decision No. 159 dated 8-8-1989 Government of Jammu and Kashmir Recommended to GOI the name of Pahari, Gujjars, Bakerwal along with others communities. Under EWS/RBA/ALC categories reservations, Gujjar/Bakerwal Tribe also get benefits besides ST category.
Pahari Tribe case is more strong for ST status than any other community as it has been recommended by different commissions, committees from time to time may by it SL Bhat Report, Justice Sagheer Report , Interlocutors, Institute of Peace and Conflict, Pirzaad Amin Committee report and time to time J&K Govts recommendations. S.LBhat Report is worth mentioning here because it clears many doubts and justified ST Demand
In 1901 census both Pahari and Gujjari were treated as languages of respective communities along with Kashmir, Dogri Punjabi etc. No distinction was made between two as regards their tribal or non-tribal character. Further Gujjars have been treated as caste rather than tribe along with other social groups like Hajjam, Lohar, Mochi, Teli etc. Bakarwali is not even mentioned as a language nor did Bakerwal Community return as a tribe.
The 1911 census report did make mention of the Gypsy languages of nomadic tribes. It described kaghani Bakarwals as nomadic shepherds of Kaghan . In this census Gujjari language was grouped with Pahari languages though the doubt persisted whether it is more correct than its previous classifications as non-pahari language. The report goes on to state that those families of this nomadic race, which have permanently settled in various parts of Jammu and some of Kashmir and taken to agriculture, may have adopted local languages, but the wandering classes, who form the largest majority, have absolutely no dealings with the natives of the country and leading the isolated life they do, far removed from the villages and in the pastures and woods of the land. They have managed to retain their original tongue and if they have really migrated from Rajputana as is the largest ethnological view in respect to them, the language of the Gujjar should continue to be treated as a branch of Rajasthani rather than pahari.
In 1931 census Gujjars and Bakerwals were reflected under the generalized and amorphous classification of caste, tribe and race. The emphasis has been on a religion based classification rather than race, tribe or caste based.
The 1941 census report makes a significant statement “The Wealthier of the Gujjars keep herds of buffaloes, cattle, sheep and goats, nearly all following agricultural pursuits. They are no longer nomadic by inclination but settled wherever they can. In almost every nallah in the country family of Gujjar squatters will be found high up above the ordinary levels of cultivation. They cultivate land at an altitude well beyond the limits of ordinary villages and beyond the limits of ordinary village lands the Bakerwals are a nomadic element of the Gujjar Tribe, they keep large herds of sheep and goats and a certain number of buffaloes and cattle. In 1971 census Gujjari, Pahari, Gaddi etc have all been described as languages spoken in the state. The census was conducted on linguistic and religious basis in which Gojri, kahgani and pahari have been treated at par.
As far as Justice A. S Anand Commission’s Report and its recommendations are concerned it is regarding socially educationally backward communities. This commission was constituted to remove defects in the rules that governed reservation in appointments and promotions of Scheduled Castes and Backward Classes as were in vogue at that point of time. It did not have the mandate to identify the communities which were eligible or otherwise for grant of Scheduled Tribe Status. It is not correct to hold that even Justice Anand Commission did not consider Paharis entitled to affirmative action of the state.
S.L Bhat in his report clarifies the Jammu and Kashmir State Govt Position regarding Pahari Tribe ST Status No census since 1901 has returned Gujjars, Gaddis or Bakarwals as Tribes. Not even people of Ladakh region. Exceptions seems to be the 1987-88, which followed the statement of political intent to declare certain groups as ST and was prelude to declaration of these Groups as ST, therefore, the question of Paharis not having been enumerated as tribe does not arise and it is not relevant.
All the census have treated Paharis, Gujjars, Bakarwals and others who have been given ST status as linguistic and social groups rather than tribes in the classical sense. There have been some stray references to Bakarwals as nomads. But there is no such description in favor of Gujjars. As a matter of fact, quite a few census reports have described Gujjars as Settled Group and Paharis as those who migrate in search of employment opportunities.
In all the census enumeration has been done on the basis of religion, language and caste. Even in the 1931 census, to which great importance has been attached by the RGI race; tribe and caste have been used without any differentiation and interchangeably. The Govt of India itself has admitted presumably on the basis of some reliable records, that Pahari is a language spoken by 60 different ethnic groups. Existence of Hindus, Muslims and Sikhs within the Pahari Tribe does not weaken their case for ST Status as it has been granted to communities of different persuasions like Christians, Buddhists and Hindus.
Denial of ST Status to Paharis in neighboring states cannot be a tenable ground for turning down a legitimate demand. Gujjars/Bakarwals and Paharis share Common social, economic and geographical disabilities and are more or less at the same level of development. If Gaddis who are not nomadic but upland shepherds have been treated as Hindus counterparts of Bakarwals, there is no reason why Pahari Tribe should not be treated at par with Gujjars with whom they have much in common.
Initially, Registrar General of India /GOI was not convinced about the merit of the demand of Gujjars and Bakarwals for ST Status. That is why they were not included in the original notification issued in 1989.they were included in the subsequent notification after reconsideration of their demand. RGI Treated Gujjars and Bakerwals as a marginal case. Same consideration needs to be accorded to Paharis.
The Pahari Tribe has as strong a claim to the Status of a scheduled tribe as any other ethnic group that has been notified as a scheduled tribe. The Government of India, at the level of the Prime Minister, has repeatedly held out assurances that this demand will be accepted. To satisfy the genuine aspirations of the Pahari and to honor the political commitments made by the leadership of the country it is absolutely essential that the paharis are granted Scheduled Tribe Status.
Author is an Advocate in J&K High Court