New J&K Domicile rules need review
BY: Sanjay Sapru
On the October 26, 1947, while the raiding Pakistani tribesmen were closing in on Srinagar, Maharaja Hari Singh signed the Instrument of Accession with India, allowing the Indian military forces to enter the state and defend its territories. The Instrument of Accession signed by the Maharaja was the same as signed by other princely states. However, due to Pakistan’s aggression, and UN deliberations on the issue after Government of India had referred the matter to the world body, a special provision (Article 370) was introduced into the Constitution of India, which empowered the State to make its own laws on many matters. The State also enjoyed many residuary powers under this Act.
Subsequently Article 35-A was also added to the Constitution to take care of the State Subject law which already existed in the State but had not been provided for in Article 370. This latter Article prevented anyone from the rest of India to obtain domicile status in Jammu and Kashmir. This meant that outsiders couldn’t apply for State government jobs or own property in the state.
On August 05, 2019, the Government of India revoked the special status, or limited autonomy, granted under Article 370 of the Indian Constitution to Jammu and Kashmir. The President of India issued an order under the power of Article 370, overriding the prevailing 1954 Presidential order and nullifying all the provisions of autonomy granted to the state. The Home Minister introduced a Reorganisation Bill in the Indian Parliament, seeking to divide the state into two Union Territories to be governed by a Lieutenant Governor and a unicameral legislature.
The resolution seeking the revocation of the special status under Article 370 and the bill for the State’s reorganisation was debated and passed by the Rajya Sabha on the same day — 5th of August 2019. On August 06, the Lok Sabha – the lower house of parliament – debated and passed the Reorganisation Bill along with the resolution recommending the revocation of Article 370.
Following nullification of the Article 370, there had been demands from various quarters, especially in the Jammu & Kashmir region and Union Territory of Ladakh, for a domicile act or some legal restrictions on the purchase of land by outsiders as well as their appointments in government jobs.
In a first step of its kind, opening the state employment in the Union Territories of J&K and Ladakh for candidates from across the country after nullification of Article 370, the Jammu and Kashmir High Court invited applications from eligible candidates from all over India to fill 33 vacancies with it. The 33 vacant posts of non-gazetted officials include those of senior scale stenographer, junior scale stenographer, steno typist, compositor, electrician and driver. However, later this notification of the Jammu and Kashmir High Court had to be withdrawn.
The Government of India issued the Gazette Notification in regard to the Domicile matters in the UT of J&K, on March 31, 2020, some eight after the reorganisation of the erstwhile State. However, in the late-night of April 03, 2020, the Central government amended its earlier order on a new domicile law in Jammu and Kashmir that reserved upto level-4 jobs for the residents of the Union territory and left the rest open for all. After the amendment, all jobs are now reserved for the domiciles of Jammu and Kashmir
Who are domiciles of J&K?
A notification was issued by the Ministry of Home Affairs in exercise of powers conferred by section 96 of the J&K Reorganization Act, 2019, under section 14 referred to as The J&K Civil Services (Decentralization and Recruitment Act) defining the domiciles.
- Any person who has resided in the Union Territory of J&K for the period of fifteen years or has studied for the period of seven years and appeared in secondary and higher secondary board examination would be considered as domicile of J&K and appointed in the services there.
- A migrant registered by the Relief and Rehabilitation Commissioner (Migrants) in the newly formed Union Territory would also be considered as domicile.
- All India service officials, officials of public sector undertaking, autonomous body of central government, public sector banks, officials of statuary bodies officials of central universities and recognized research institutes of central government who have served in J&K for a period of ten years, the notification reads, would also be considered as domicile for purpose of appointment to any service in J&K.
- Children of parents who fulfill any of the above condition are considered deemed domicile.
As on date the ambit of Domicile Act seems to be limited to jobs only.
According to MHA’s reply to a parliamentary panel on February 18th, 2020, there are over 84,000 vacancies in Jammu and Kashmir out of which 22,078 pertain to class IV positions, 54,375 to Non- Gazetted positions and 7,552 at the Gazetted level. The new law in its current form will benefit communities like-West Pakistan Refugees, SC – Valmiki Community and Gorkhas, who were deprived since 1947 in the erstwhile dispensation, while large section of the Migrant community will not be eligible.
The procedure to get a domicile certificate seems to be a Herculean task as it involves a lot of complexity and may result in an exercise like the NRC (National Register of Citizens). It seems that the bureaucracy has overlooked many aspects related to the procurement of domicile certificate which may be due to their lack of historical knowledge of the State of Jammu and Kashmir or a deliberate connivance. In its present form, the citizenry will be impacted and this may further increase the points of corruption, in an already corrupt set-up.
The new Domicile rules also throw up some pertinent questions:
- After the recent displacement of Kashmiri Pandits from Kashmir in 1990, a large number of displaced community got registered in Jammu, but quite a number of them got registered in various other parts of India. The notification, as it appears, does not mention anything about those who got registered as migrants outside Jammu.
- Due to various reasons beyond their control, many displaced migrant community members could not register themselves either at Jammu or outside. How will they come within the ambit of this act?
- As per a rough estimate, there are more than half-a-million of such people living all round the world who left the state earlier than 1990. They originally belong to the various divisions and districts of Jammu and Kashmir. They own immovable property in Jammu and Kashmir and/or possess a valid State Subject certificate. As per the new Domicile Act they too seem to be excluded.
- Though the present notification is only applicable for seeking jobs, it is hoped that such domicile conditions are not invoked for permanent settlement, purchase of land/property/starting business, etc., on Kashmiri Pandits, the aborigines of Kashmir, who have till now faced seven exoduses, since the arrival of Islam in Kashmir in the fourteenth century.
After Independence, the only State that implemented land to tiller was Jammu and Kashmir. Sweeping land reform under the Big Landed Estates Abolition Act was passed on July 13th, 1950. This changed the complexion of Kashmiri society. In 1950 when the Constituent Assembly of the Jammu Kashmir was constituted, it had four agenda points including whether compensation be given to those landlords who have lost their land through the land abolition act.
On November 5th, 1951 then the Revenue Minister Mirza Muhammad Afzal Beg refused to give compensation to landlords. This was the first action that marginalized Kashmiri Pandits, made them irrelevant in Kashmir and kickstarted slow migration post-Independence.
Now with the Domicile Act (in its present form) will further dent the Kashmiri Pandit migrant community and distance them from their roots and identity , impede their return to the land of ancestors (Kashmir ) that they have been dreaming post-migration of 1990 .
To conclude, as per my view, the Domicile Act needs to be reviewed, as in the current shape and form it is harsh on the original inhabitants of the Jammu & Kashmir State. Furthermore, rushed implementation process will deprive the majority of the migrants from the jobs that are likely to be announced in times to come.
(The author can be reached at [email protected])