The Government of India on 05 August 2019, by abrogating controversial Article 35A of the Constitution of India undid the injustice done to the citizens of India against the spirit of the same Constitution by denying them one of their fundamental rights. The article was inserted in the Indian Constitution through a Presidential Order (PO) purportedly to please the Kashmiri Muslims who under the leadership of Sheikh Mohammad Abdullah have been wanting to protect the “Kashmiri Identity.” The then prime minister of India Pandit Jawahar Lal Nehru failed to recognise the fact that Jammu & Kashmir was a multi-regional, multi-communal, multi-lingual and multi-cultural state held together assiduously by the Dogra Rulers. The state did not belong only to the Kashmiri Muslims but non-Kashmiri speaking Muslims, Hindus, Buddhists and Shias were equal stake holders and any constitutional guarantee to prevent only the “Kashmiri Muslim Identity” was nothing short of blatant treachery with the others. The irony is that it took 66 years to undo the injustice. Once it was done, it was going to be a matter of time and a few legislative requirement to bring cheers on the faces of those who had been the “silent sufferers” in their own land.
Jammu & Kashmir Reorganisation Act 2019 provided the necessary frame work required for the same. The state was divided into two union territories (UT) namely Jammu & Kashmir and Ladakh. The state constitution of Jammu & Kashmir was repealed and all Central Acts were made applicable. Many existing laws of the state were modified in accordance with the Constitution of India and allowed to prevail. One such Act was the Jammu & Kashmir Civil Services (Decentralisation and Recruitment) Act, 2010. Section 3A of the amended Act introduced the term Domicile and also defined the same. The Act guaranteed state government jobs to the domiciles. There was certain hue and cry on the pretext that the original inhabitants of the state have been omitted from the definition of domicile. Particular reference was made to the POJK refugees who settled outside J&K immediately after 1947-48 because they could not be accommodated in the state by the then government led by Sheikh Abdullah. There were about 5300 such families identified by the government itself. Then there were many Kashmiri Pandits who had migrated to other parts without registration with the Relief Commissioner (Migrant). To address all these concerns and few other legal requirements the government of UT J&K came out with Government Order No. 52-JK (DMRRR) of 2020 dated 16th May and a Notification dated 18th May. The issuance of these two sent a wave of joy across the people who were dubbed as “Children of a lesser god” in their own homeland because of the discriminatory and suppressive policies adopted by successive Kashmir-centric governments who failed to recognise it as a ‘humanitarian issue’ and often snubbed it as a ‘communal issue’ because of their tunnel-vision approach. The two documents laid down the procedure for issuance of ‘Domicile Certificate’, a document the members of these communities were yearning to get for 66 years so that they could lead a dignified life and enjoy the basic fundamental rights denied to them.
“Now we too can lead a dignified life. All these years we were treated like slaves. We were denied basic constitutional and fundamental rights,” rued Eklavya, a member of the Valmiki community. Eklavya had completed his PhD but was entitled to apply for the job of a ‘Safai Karamchari’ only and was not entitled to any other job with the state government. Now with a domicile certificate in hand he can apply for any government job as a proud Indian. They are not only happy but confident now of getting jobs as per their qualification. “Now we see a bright future ahead of us. Now we will be able to fulfil our dreams which were not possible due to 35A,” is the reaction of Thomas, a budding graduate from the community.
The maximum joy is among the members of “West Pakistan Refugees” community who had to suffer this humiliation and tag for three generations. These families had migrated to Jammu as a consequence of partition in 1947 to save their religion, culture, honour from across the border and mainly belonged to the Dalit community. Their kith and kin who migrated to other states of the country prospered and even rose to become the nation’s prime minister but these unfortunate families became victims of the narrow-minded communal politics in the state and were forced to live as second rate citizens. For them the Domicile Certificate is nothing less than a Green Card for the NRIs in USA. The comparison is just symbolic to highlight the struggle and wait these poor “Indian Citizens” had to undergo to earn their basic fundamental rights and the sense of honour and safety which Domicile Certificate will instil in them. Apart from jobs they would be able to exercise their right of vote for electing future governments in the state.
“Equality and dignity for all” tweeted Shri JP Nadda, the national president of the ruling party. Labha Ram, a community leader said, “Over seven decade long discrimination to which his community was subjected has ended with the new rule.”
Numerous Kashmiri Pandit organisations, POJK refugees organisations, Global Kashmiri Diaspora, Dogra Brahmin Pratinidhi Sabha, Jammu Kashmir Nationalist Movement and Movement for Justice for Refugees of 1947 from POJK (MJR-47) and many others have wholeheartedly welcome the notification and expressed their satisfaction. Their happiness stems from the fact that their kith and kin who had to leave the then state due to reasons beyond their control including inability of the then Government to accommodate within the state will also get the domicile status now as laid down in GO 52/2020 dated 16th May. The daughters of J&K who had married outside the state/UT their spouse and children would also get the domicile status thus bringing to an end the gender discrimination.
In keeping with the idea of One India, any Indian citizen who has made J&K his abode for 15 years along with the family members who fulfil this criteria or whose children have studied for seven years plus qualified 10th/12th exam from any school within its territorial jurisdiction would also get the domicile status. Similarly, children of Central Government officials, All India service Officers, officials of PSUs and Autonomous body of Central Government, Public Sector Banks, Officials of Statutory bodies, Officials of Central Universities and recognized research institutes of the Central Government, who have served in the Union territory of Jammu of Kashmir for a total period of ten years will also be eligible for Domicile status in the UT as will be the parents.
As is their wont, Valley based Kashmir-centric political parties have opposed the new rules. The reason is obvious and their opposition does not carry much weight since the correct legal procedure has been followed. Another national party’s objection that the “outsiders” have been granted domicile status is against the spirit of the Constitution of India since the Constitution does not distinguish Indian citizens as locals and outsiders but differentiates between residents and non-residents as specified in Article 5 of the Constitution and Indian Citizenship Act 1955.
Since, Article 35A allowed a separate category of permanent residents of the state who enjoyed specific privileges, they were issued with Permanent Resident Certificate (PRC) to identify them. With abrogation of 35A, PRC has become legally invalid and hence been replaced with a Domicile Certificate under the provisions of new rule. The procedure for issuance of Domicile Certificate has been kept simple with provision of both online/offline applications. Aim being to make the procedure less cumbersome and hassle free. The authority for issue has been delegated to Tehsildar/Relief Commissioner (migrant) instead of the District Commissioner earlier.
The rules provide a simple and time bound procedure for the issuance of the Domicile certificate so that no one is put to any inconvenience. There shall be a timeline of 15 days for issuance of the certificate after which the applicant shall be free to approach an Appellate Authority. The decision of the Appellate Authority shall be binding upon the issuing authority and the orders of the Appellate Authority are to be complied within seven days, failing which the defaulting officer shall be liable for a penalty of Rs 50,000 out of his salary.
However, in view of their earlier bad experience of red tape while dealing with revenue authorities, the locals are apprehensive now also and demand that their PRC only be stamped as “To Be Retained as Domicile Certificate.”
In final analysis, the decision of the government is a step towards total integration of the UT with national mainstream and put to rest any past baggage of being “Different and special” from the other Indian Citizens. It is a victory of nationalist forces and win-win situation for all.