domicile law

Kashmir: UN Human Rights Experts Express Concern on Domicile Law; ‘Baseless’ Fears Says India

MEA spokesperson Anurag Srivastava questioned the “objectivity and neutrality” of the independent experts appointed by the UN Human Rights Council.

New Delhi: After UN human rights experts expressed concern that the new domicile rules may lead to a demographic change in Jammu and Kashmir, India lashed out, questioning the “objectivity and neutrality” of the independent experts appointed by the UN Human Rights Council.

On Thursday, special rapporteur (SR) on minority issues Fernand de Varennes and SR on freedom of religion or belief Ahmed Shaheed issued a joint statement that expressed concern at the loss of autonomy guarantees for the state of Jammu and Kashmir.

The experts stated that Jammu and Kashmir’s constitutional status was revoked “unilaterally and without consultation” in August 2019. About a year later, new domicile rules were introduced, which the UN experts claimed “removed protections given to those from the territory”.

“The number of successful applicants for domicile certificates that appear to be from outside Jammu and Kashmir raises concerns that demographic change on a linguistic, religious and ethnic basis is already underway,” said the experts in a statement released in Geneva.

It added that the “new legislation overrides previous laws which granted the Kashmiri Muslim, Dogri, Gojri, Pahari, Sikh, Ladhaki and other established minorities rights to buy property, own land, and access certain state jobs”.

The two UN experts stated that these legislative changes “may have the potential to pave the way for people from outside the former state of Jammu and Kashmir to settle in the region, alter the demographics of the region and undermine the minorities’ ability to exercise effectively their human rights”.

They urged the Indian government to ensure that “economic, social and cultural rights of the people of Jammu and Kashmir are protected, and that they are able to express their political opinions and participate meaningfully in matters affecting them”.

In a reaction issued late Thursday night, the Ministry of External Affairs (MEA) spokesperson Anurag Srivastava declared that it was “deplorable” that the SRs did not wait for India’s response after sharing their questionnaire on February 10. “Instead, they chose to release their inaccurate assumptions to the media. The Press Release has also been deliberately timed to coincide with the visit of a group of Ambassadors to Jammu and Kashmir,” said Srivastava.

Around two dozen foreign envoys are currently in Jammu and Kashmir on the third tour for diplomats organised by the Indian government after the state’s bifurcation into two Union Territories.

On the apprehension of demographic change, Srivastav stated that the fears were “baseless and unfounded” as an “overwhelming majority of domicile certificates issued in J&K are to the erstwhile Permanent Resident Certificate (PRC) holders”.

“This press release calls into question the larger principles of objectivity and neutrality that the SRs are mandated by the Human Rights Council to adhere to. We expect the Special Rapporteurs to develop a better understanding of the issues under their consideration before jumping to hasty conclusions and issuing press statements,” asserted Srivastava.

He claimed that the statement by the SRs disregarded that Jammu and Kashmir is an integral part of India and the decision of August 2019 was taken by the Parliament.

The Indian official stated that the UN experts ignored that the change in status and new laws allowed “people of Jammu and Kashmir to enjoy the same rights as available to people in other parts of India”. He added, “The Press Release fails to take into account the steps aimed at ending decades of discrimination, enshrining democracy at the grassroot level through successful conduct of local elections for the District Development Councils, and ensuring good governance through back to village program.”

The Second Sale Deed of Jammu and Kashmir

Several other states like Himachal Pradesh, Sikkim and Mizoram enjoy similar protections in the form of several constitutional or statutory safeguards.

The recent gazette notification, issued by the Ministry Of Home Affairs (MHA), has in one fell swoop, removed all preconditions for the purchase and sale of land in the Union territory of Jammu and Kashmir.

While the notification has created an uproar in Kashmir, with the Peoples’ Alliance for Gupkar Declaration (PAGD) openly castigating the notification as unacceptable and nefarious in nature, Jammu too has expressed grave concerns about this move by the Centre.

Former chief minister Omar Abdullah in an interview went as far as to say, “This adds to the fear of demographic changes. Today’s order has made it clear that they want to wipe out the character of a Muslim majority state. The people of Jammu would be more unhappy with this land ownership system. Before it impacts the people of Kashmir, it will impact people in Jammu.”

While repealing the J&K Land Alienation Act, 1938 and Big Landed Estate Abolition Act, 1950, the notification makes amendments to the Land Grants Act, 1960 and the Agrarian Reforms Act, 1976 by removing the “Permanent Resident” requirement for the sale and purchase of land in J&K. Repealing the landmark Big Estates Abolition Act was a rather ironic move as the Act, which conferred land rights to the tillers in Jammu and Kashmir, was believed to be one of the most progressive pieces of land reform ever initiated in India.

The prerequisite of being a “state subject” for the sale and purchase of land was the result of a long and pressing demand by the people of Jammu and Kashmir, which the erstwhile maharaja had agreed to, keeping in mind the disadvantaged socio-economic backwardness of the local populace in the region. By scrapping this requirement, the Centre has added insult to the injury already inflicted on the people in the state.

Also read: The New Land Ownership Laws May Unite Kashmiris Across All Territories

How the demand for state subjects arose

The incorporation of these protectionist provisions can be traced back to an agitation led by Kashmiri Pandits, who were far more educated and politically conscious in comparison with the Muslim majority community in the princely state of J&K.

The Kashmiri Pandits were opposed to the hiring of Punjabis in the state administration, a trend which had been initiated by the first maharaja of the state, Gulab Singh, when he had appointed a Punjabi khatri named Dewan Jawala Sahai to an important post in his government. Dewan Sahai later went on to become prime minister under the Dogra rule.

During this time, Jammu and Kashmir recorded a massive influx of Punjabis, who started to occupy almost all the high ranking positions in the Dogra government. As their sway in the administrative setup increased, extensive land grants were extended to the Punjabis as they were placed on important chairs of trusts. Cementing their influence in areas of authority and occupation of land, the Punjabis began to dominate commerce as well.

A shikara in Kashmir’s Dale Lake. Photo: AzmanJumat/Flickr, CC BY 2.0

Concerned by this wave of immigration and fearing relegation to the margins, Kashmiri Pandits raised a banner of revolt. Their agitation was actively supported by the Hindu Dogras of Jammu as they were the first to reap the benefits of modern education, long before Muslims in the Valley became politically conscious.

While in Jammu, the agitation was more forceful and sprouted into a full-fledged Dogra vs Punjabis controversy, in Kashmir, the Kashmiri Pandits managed to acquire subtle assistance from the British officers in their opposition to ‘outsiders’. After a long and arduous agitation, Maharaja Hari Singh introduced the state subject law on April 20, 1927. The definition of the term “state subject” was a broad one, which conferred equal representation to all the sections of the population be it the Kashmiris, Dogras or Punjabis.

It was this state subject law which manifested in the form of ‘permanent residents’ after Jammu and Kashmir’s accession to India and continued to protect the land and labour rights of the local population. The post-independence period also ushered in new challenges for the local populace which found itself caught in a conflict and earned the unwanted sobriquet of being a “nuclear flashpoint”.

Also read: Anyone From Anywhere Across India Can Now Buy Land in J&K

The prevalence of conflict further buttressed the case for uninterrupted protection of jobs and land rights, as had been granted by the maharaja, keeping in mind the disadvantaged socio-economic position of the state vis-à-vis the rest of the country. The removal of the protection fo land rights that people in the state previously enjoyed might spell doom and the local population will not be able to fend off the big land sharks from outside Jammu and Kashmir.

Constitutional safeguards other states enjoy

Jammu and Kashmir is not the only state which confers protection to the land and jobs of the local populace. Several other states also enjoy similar protections in the form of constitutional or statutory safeguards.

The state of Himachal Pradesh, under several laws, restricts the sale and transfer of land to its ‘bonafide residents’ – those who have resided in the state for a period of 20 years. However certain exceptions can be made by the state while making land transfers to outsiders, considered on a case-by-case basis.

In 2019, the Supreme Court, while deciding a petition on the state of Meghalaya, ruled that the indigenous population have full rights over their land and resources and recognised their sole right to grant permission for mining. Like Meghalaya, several other states, under the Sixth Schedule of the constitution, enjoy similar protections with regard to their land rights.

Similarly, under Article 371-F of the constitution, the people of Sikkim enjoy discretionary powers with regard to the purchase of the property in the state. The laws are even harsher in the tribal areas of Sikkim, where only tribals can purchase the land falling in these belts. Once again, exemptions can be made for the establishment of designated industrial belts for regulated penetration of benefits of industrialisation.

In Nagaland, the people with protections derived from Article 371-A are free to determine the conditions of who can and cannot purchase or transfer land other than its ‘indigenous inhabitants’. Likewise, under Article 371-G of the constitution, the Mizoram legislative assembly is conferred with special privileges to restrict and regulate the ownership and transfer of land rights in the state.

Also read: Modi Govt’s New Land Policy for J&K Overturns 7 Decades of Land Reform

Arunachal Pradesh, Jharkhand and 10 other states falling under the Fifth Schedule of the constitution have been bestowed with discretionary powers with regard to imposing restrictions on the transfer and purchase of the lands in the respective states keeping in view the local tribal populations.

Having said this all, even the newly created Union territory of Ladakh is being considered for special status under the Sixth Schedule, thereby extending constitutional safeguards to its culture, jobs and land ownership rights. All these aforementioned instances provide ample breeding ground for the population of Jammu and Kashmir to be concerned about the selective manner in which the Centre has removed these protections while others continue to enjoy them uninterruptedly.

A jawan stands guard during the shutdown in Srinagar on October 3. Photo: PTI

Backtracking on promises

The Centre has argued that these safeguards were roadblocks for peace, progress and development in Jammu and Kashmir.

The Central government has also maintained that the removal of these “impediments” would encourage investment, this even as it, in the same breath, it continues to support these safeguards in states which enjoy constitutional safeguards under Article 371 and several other provisions.

The Centre had previously, on multiple occasions, assured the people of J&K that their jobs and land rights would be protected at any cost and that the state would have a better domicile policy than anywhere else in the country.

Immediately after Article 370 was revoked, PM Modi promised the people of J&K that they would witness the dawn of a new politics, prosperity and development and every commoner in J&K expected him to stick to his words. Propriety and principled statecraft demand that New Delhi refrain from forcing its vision of development on the newly created Union territory as this might lead to instability again, while all other priorities take a backseat. The Centre should instead conduct legislative assembly elections and let people have a say in their future.

More than two centuries ago, in 1846, Maharaj Gulab Singh executed the Treaty of Amritsar with the British East India Company, whereby Kashmir was sold to him in lieu of seventy five lakh nanakshahi rupees and he carved out the princely state of Jammu and Kashmir. This treaty is infamously remembered as the “Sale Deed” of Kashmir. Let us hope the Centre rethinks what locals will see as the second sale deed of J&K, where the inhabitants of the land have no say in shaping their destinies.

B.M. Amin is a lawyer.

An Uneasy Quiet in Kashmir Is No Guarantee That All Is Well

The Valley is without disturbance as perhaps never before, but the people’s trust has been broken.

A little over a year ago, on 12 August 2019, the Indian Express carried an article that I had written on the annulment a week earlier of Articles 370/35A that the Supreme Court had several years earlier ruled as “permanent” features of the Constitution. My opening line said, “Narendra Modi and Amit Shah have just created a Palestine on our northern border.”

I have waited nearly 14 months for that to happen. But the Valley is without disturbance as perhaps never before. Jammu has largely welcomed the move. Ladakh was overjoyed to get Union Territory (UT) status and liberate itself from the stranglehold of Srinagar. A raft of development schemes was announced, as was a raft of youth employment schemes. Panchayat elections were held. With impunity, non-Muslims were put in every office of significance in a Muslim-majority state.

A massive wedge was driven between the electorate and the National Conference, in particular, and the old political establishment of the “three families” in general, to the extent that the Kashmiri-in-the street was mocking Sheikh Abdullah’s family with the cry, “Ab bolo, ‘Bharat Mata ki Jai’”. Pakistan had been rendered ineffective in fomenting trouble. The India-China border was so tranquil that President Xi Jinping arrived in Mahabalipuram in October 2019 to a welcome warmer than a fresh masala dosa. Was I totally wrong in my assessment?

So wrong that the satraps of the Central government had slowly retracted many of the restrictions imposed on the normal life of the population. Traffic jams returned to the city. Internet worked – at least in the 2G version. Educational institutions reopened. Shops did brisk business. A team of European Union diplomats issued individual certificates of “normalcy” being visible. The authorities were so confident that the people had learned to live without 370/35A that they even released Omar and Farooq Abdullah (but not Mehbooba Mufti, their erstwhile ally) and allowed them to meet other political “leaders” to issue a second Gupkar Declaration on 22 August 2020. So where was the intifada (an uprising), where was the “Palestine on our northern borders”? Apparently in limbo.

‘Completely disillusioned’

So effective was the Central government’s control of the narrative, they even allowed Farooq Abdullah to attend parliament. The speaker promised him time to speak. In consequence, he was granted one minute at the start of the session and one more at the end. Is this how a self-confident government works?

So, a frustrated Farooq took to the media and in an interview to Karan Thapar for The Wire, found some outlet for what he needed to tell the nation. His father, the Sher-e-Kashmir had repulsed Jinnah to join India, he said, although “religion (was on) that side, the roads that side, the rivers go that side. We went against the current”. Why? “We joined Gandhi’s India, not Modi’s India”. So, what had Modi’s India done? They had broken the trust that underlay “the unity of the Muslim-majority state with the rest of the nation”, leaving the people “sick of having to put up with a soldier with an AK-47 on every street, every village”, “their dreams gone” awry, their children deprived “of a future”, “completely disillusioned…If I speak of India anywhere, they don’t want to listen”.

A paramedic walks through a deserted street during curfew ahead of the first anniversary of the revocation of Kashmir’s autonomy, in Srinagar August 4, 2020. Photo: Reuters/Danish Ismail

Then why are they so quiescent, so accepting of their fate, so reconciled to their deprivation as to not take to the streets? “Would you be able to protest here in Delhi if every street was filled with armed gunmen?” Perhaps not, but Delhi isn’t Srinagar. Why are people there so intimidated that they don’t protest? Farooq in reply “guaranteed” that “the minute you remove those soldiers, lakhs will be on the street”. And if the soldiers are not removed? “One day this volcano will blow”.

Perhaps, therefore, the intifada I had predicted will take time to erupt. I recall that for 40 years after Al-Naqba (‘The Catastrophe’ of 1948), there was no intifada. The Palestinians were relying on their Arab brothers to liberate them. The “Arab brothers” spectacularly failed them. Worse, one by one, they began deserting the Palestinian cause and listing to the siren song of Israel. It was only when the Palestinians realised that they were alone that they started the intifada. No intifada can be made overnight. They have to be driven to it. Are Modi-Shah driving them to it?

Farooq says they are fighting for “the honour, dignity, the respect that the people lost on the 5th of August last year”. They want the Government of India to “start trusting Muslims instead of denigrating them…They (Centre) still hold the land, with force, but they have lost the people”. And that is why “sentiment for Kashmiri independence has grown sizably”. People are still are not interested in joining Pakistan but, notwithstanding Chinese treatment of Uighur Muslims, Farooq believes “they would rather have the Chinese coming in!”

This is the extent to which Modi and Shah have driven seven million Kashmiris up the wall. And with the new domicile laws endangering the demographic composition of both UTs, fear and apprehension have overtaken all three regions of the erstwhile state – Jammu, Kashmir and Ladakh, including both Muslim-majority Kargil and Buddhist-majority Leh. If the situation is not rectified, intifada and worse can overtake the trijunction of India, China and Pakistan, the “crown” of our nation. This was not the situation on August 4, 2019. It is the position today. That is the measure of what the Modi-Shah regime has wrought in Jammu and Kashmir. The nation’s unity and integrity are under threat as never before.

Withdraw troops and restore Kashmiriyat

Is there a way out? Child’s play, really. Just revive the permanent constitutional status of J&K; return to them their statehood as it existed till last year (subject to consultation with Leh); restore to the country the values of Gandhi’s India; start again trusting the Muslims; stop branding Kashmiris traitors; play fair with the Kashmiris who stood by us not only at Independence and Partition in 1947 but also at war in 1948, then again in 1965 in facing down Bhutto’s Operation Gibraltar, and twice again in 1971 and 1999; stand by those who have stood by us at the United Nations in New York, Geneva, Vienna; restore democracy and fundamental rights; and revive Vajpayee’s formula: Insaniyat, Jamhooriyat, Kashmiriyat (humanism, democracy, Kashmir’s legacy of amity). That is all we have to do to draw down the army and eventually send it back to guarding our borders.

“Bring back yesterday, bid time return” (Shakespeare, Richard II). Otherwise, doom and gloom await us.

Mani Shankar Aiyar is a former minister for petroleum and natural gas, a former member of the Lok Sabha, and a member of the Congress party

After Assurances from Centre, Ladakh Group Withdraws Call to Boycott Leh Autonomous Council Polls

The People’s Movement for Constitutional Safeguard Sixth Schedule for Ladakh said it was assured that all issues related to language, demography, ethnicity, land and jobs will be considered positively and taken care of.

New Delhi: An influential organisation of Ladakh on Sunday withdrew its call for a boycott of the Ladakh Autonomous Hill Development Council (LAHDC) polls in Leh after the Centre assured its demands for protection of local language, jobs, land and demography will be considered positively.

Union home minister Amit Shah also assured a delegation of the People’s Movement for Constitutional Safeguard Under Sixth Schedule for Ladakh that the Central government is committed to empowering the LAHDC of Leh and Kargil and would protect the interests of the people of the Union Territory.

Shah also assured that the Centre would explore all avenues towards this objective including under the Sixth Schedule of the Constitution.

In a joint statement, former Ladakh MPs Thiksay Rinpoche and Thupstan Chhewang, former J&K minister Chhering Dorje and Union ministers Kiren Rijiju and G. Kishan Reddy said the delegation was assured that all issues related to language, demography, ethnicity, land and jobs will be considered positively and taken care of.

A dialogue between a larger Ladakhi delegation comprising representatives from Leh and Kargil districts under the aegis of Peoples Movement for Constitutional Safeguard Under Sixth Schedule for Ladakh and Union home ministry would commence after 15 days of the culmination of LAHDC, Leh elections.

Any decision so reached in this connection would be in consultation with the representatives from Leh and Kargil, the statement, which came a day after the Ladakhi leaders met Shah, said.

The statement said the Centre is open to discuss protection of Ladakh’s language, demography, ethnicity, land and jobs under the Sixth Schedule of Constitution and other provisions while looking into issues related to Ladakhi people.

The delegation has agreed to withdraw its call for the boycott of the ensuing LAHDC, Leh elections and promised its wholesome support to the smooth conduct of these elections, it said.

Addressing a press conference, along with the Ladakhi leaders, Rijiju said that Union MoS for home G. Kishan Reddy, who was sitting beside him, would visit Ladakh Monday and meet a cross-section of people in the Union Territory to allay their apprehensions.

Chhewang said after the abrogation of Article 370, which gave special status to J&K, people of Ladakh have some apprehensions about their future, land, culture and jobs since there is no longer any legislative body there.

After the creation of the UT, people thought that the autonomous bodies will be empowered. Unfortunately, the kind of work should have been done, did not happen. COVID pandemic also played a role, he said.

Many people thought that the powers of the autonomous bodies have been curtailed. There have been strong feelings of unhappiness. We were worried that such unhappiness among the youths should not go in the wrong way, he said.

Also read: All Ladakh Bodies – Including BJP – Decide to Boycott Hill Council Elections

The Peoples Movement for Constitutional Safeguard Under Sixth Schedule for Ladakh, he said, has been seeking the empowerment of the autonomous bodies similar to the Bodo Territorial Council in Assam under the 6th schedule of the constitution.

The former MP said after their meeting with the home minister, they now think that their apprehensions will be addressed and people’s rights protected.

Chhewang said people of Ladakh have been doing their best for the security of the nation since 1947 and even helping the Indian Army now when China is trying to making incursion (Atikraman) in Ladakh.

He praised Prime Minister Narendra Modi and defence minister Rajnath Singh for taking proactive steps during the current standoff with China and said no government in the past has taken such decisions.

When the Indian Army was facing difficulties to send ration to some of the heights it has captured, the people of Ladakh voluntarily delivered the ration to these posts.

Because of the sacrifice the people of Ladakh have been making since 1947, there has been an expectation that the Central Government would sympathetically resolve the problems of Ladakh, he said.

The former MP also said their agitation should not be linked with issues of the Kashmir valley and they were also not in favour of a domicile law similar to UT of Jammu and Kashmir.

Rijiju said the provision of the Sixth Schedule and other provisions of the constitution will be looked into to allay the apprehensions of the people of Ladakh and protect their rights

On September 22, 2020, the recently floated People’s Movement for Constitutional Safeguard Sixth Schedule for Ladakh announced the boycott of the upcoming elections to LAHDC Leh.

The LAHDC Leh is scheduled to go to polls on October 16, 2020, the first such exercise in the region after Ladakh was carved out from Jammu and Kashmir and granted the Union Territory status on August 5, 2019, following the abrogation of special status to the erstwhile state.

When Jammu and Kashmir were bifurcated into two UTs, it was announced that the UT of Jammu and Kashmir would have a legislative assembly but UT of Ladakh would not have any legislature.

J&K Admin Says Domicile Certificate Only for Applying for Jobs

It also said those holding domicile certificates would not be automatically included in the voters’ list in the Union territory either.

Srinagar: The Jammu and Kashmir administration on Tuesday said the new domicile certificate was only for applying for jobs and did not confer rights to own land.

It also said those holding domicile certificates would not be included in the voters’ list in the Union territory either.

“The domicile certificate is for applying for jobs in Jammu and Kashmir… It does not confer right to buy land,” Principal Secretary Revenue Pawan Kotwal told reporters here.

He was accompanied by government spokesman Rohit Kansal at the press conference.

Kansal said the government has so far issued more than 12.5 lakh domicile certificates.

Also read: J&K’s Controversial New Domicile Law Faces a Legal Challenge

“More than 99 per cent of the domicile certificates have been issued to those who already had the erstwhile Permanent Resident Certificate,” he said.

Kansal said the government has reduced the time frame for issuance of domicile certificates for PRC holders from 15 days to just five days.

“Holding a PRC is enough to get a domicile certificate. There would not be any further verification. This will accelerate the process,” he added.

Asked about the fake PRCs issued in the past, he said there were separate provisions of laws that deal with that aspect.

Kansal said while 11,000 West Pakistan refugees and 12,000 migrants had been issued domicile certificates, around 450 members of the Valmiki community and 10 from the Gurkha community has also availed the document.

Kotwal said there were 17 lakh applications and 4.3 lakh are pending as of now. “We have rejected 20,000 applications as well, he added.

J&K: Slow Internet Is Impeding Issuance of Domicile Certificates

Apart from the 2G speeds, the process is also being slowed down by overburdened officials who are juggling many duties, insiders say.

Srinagar: While the government is putting pressure on the revenue department to verify applications for domicile certificates in Jammu & Kashmir quickly, insiders say slow 2G internet service speeds and overburdened revenue officers make the process difficult.

The J&K government last week made it mandatory for its officers to issue domicile certificates to permanent resident certificate (PRC) holders and migrants in just five days, against the earlier deadline of 15 days.

A Kashmir Administrative Officer (KAS) officer posted in south Kashmir told The Wire that issuing a domicile certificate within five days is a “Herculean task”.

“The government has taken us for a ride. We [KAS officers] are already burdened with many duties. Apart from resolving public issues, holding meetings, doing COVID-19 assignments, providing different certificates to the people and maintaining law and order in our jurisdictions, now we have also been assigned the additional task of issuing domicile certificates,” he said adding, “We are human beings, not machines.”

The domicile law entitles PRC holders and non-permanent residents who have residency proof of at least 15 years in J&K to get domicile certificates.

The senior KAS officer termed the lack of high-speed internet services a major hurdle for issuing timely domicile certificates. “Relying on 2G internet service to scrutinise the information of each person, get one time passwords (OTP) and upload e-signatures takes hours. In these circumstances, how is it possible to issue domicile certificates within a few days?” he asked.

Announcing the move on Twitter, the Department of Information and Public Relations said on August 25, “Govt fixes a time limit of 5 working days for issuing a domicile certificate to PRC holders and migrants. Reduces from earlier 15 days. Process made extremely simple.”

The announcement came a day after J&K Lieutenant Governor Manoj Sinha directed the officers concerned to speed up the process of issuance and delivery of domicile certificates in a hassle-free way, as he appreciated the enthusiasm shown by the applicants.

“All pending applicants be provided domicile certificates within 15 days, and deadline of September 10 is being set, after which no long pendency shall be excused and action against the responsible, underperforming officers shall be taken,” Sinha had said, chairing a meeting here to review ongoing development activities in Jammu district.

In May, the government gave officers just seven days to process the verification of certain classes of domicile applications, failing which a penalty of Rs 50,000 would be imposed.

Also Read: J&K’s Controversial New Domicile Law Faces a Legal Challenge

Vacant posts, overburdened officers

According to sources, hundreds of online domicile forms have not been processed due to many posts of revenue officers lying vacant in various districts. A source inside the revenue department said there are 36 tehsils in J&K without revenue officers and that KAS officers have been tasked with additional charges.

The revenue officers said that they are overburdened and are unable to handle the affairs in multiple tehsils, which not only hamper the official work but cause huge inconvenience to people. Many revenue officers have also delegated the responsibility of scrutinising the domicile applications to their assistants, which is a clear violation of rules.

“The revenue officials are experienced in their fields but the additional charge is a burden on them. It becomes difficult for an official to run two offices simultaneously,” the source said. While the government wants to make these officials accountable, the reality is that they cannot do justice to their duties if they are overburdened, the sources added.

“In view of the COVID-19 pandemic, people are preferring the online mode. They do not want to wait in long queues in government offices to submit the documents required to obtain domicile certificates. But due to the lack of 4G internet services, we have suggested that people apply through the offline mode,” said another south Kashmir based revenue officer, who claimed that no migrant or non-local has yet applied for a domicile certificate in his jurisdiction.

Till August 5, 2019, Article 370 and Article 35A secured certain privileges for local residents. This included complete reservation in local government jobs for permanent residents. On that day, along with the dilution of these Articles, the BJP-led Central government also scrapped the local special citizenship law.

The new domicile law allows outsiders to apply for local jobs if they fulfil certain conditions. From May to the end of June, 25,000 people were granted domicile certificates. By the end of July, 3.7 lakh domicile certificates were granted, of which 2.9 lakh were in Jammu division and 79,300 in Kashmir.

File photo of a protest against issuing domicile certificates to West Pakistani refugees in Srinagar on Thursday. Photo: PTI/S. Irfan

On June 26 this year, the J&K administration issued recruitment notice for over 8,500 posts in Class-IV category. The notification reads that the candidate should be a domicile certificate holder.

According to a local news gathering agency, until August 29, more than 7.27 lakh people registered as candidates for the Jammu and Kashmir Service Selection Board. Since the online application commenced on July 10, more than 4.04 lakh candidates used this method to apply. The Class IV application submission process was closed at 12 AM on August 29.

Several political parties in J&K have already demanded the rollback of the domicile rules, saying the BJP-led Central government is “sneakily” speeding up new ordinances to redesign the region’s demography amid the COVID-19 pandemic.

According to Census 2011, 68.3% of Jammu & Kashmir’s population is Muslim, while Hindus constitute nearly 30% and Sikhs nearly 2%.

Also Read: Throughout History, Demographic Changes to J&K Have Only Deepened Conflict

Officer suspended for ‘laziness’

The government on Sunday suspended a KAS officer for ‘laziness’ in issuing domicile certificates in J&K.

A local news agency reported that the tehsildar of Jammu (Khas) has been suspended and attached in the office of divisional commissioner (Jammu).

The suspension was allegedly for dereliction of duties involving disobedience and ‘poor performance’ in the issuance of the domicile certificates to the applicants, causing ‘huge suffering and inconvenience’ to the general public.

The deputy commissioner (Jammu) is now holding an inquiry into the officer’s conduct under the rules and will furnish a report accordingly to the government within a period of 15 days.

Meanwhile, the principal secretary of the Revenue Department, Pawan Kotwal, confirmed to The Wire that in 36 Tehsils of J&K, posts of revenue officers are vacant. The officer quickly added that the General Administration Department (GAD) has been notified and soon, these posts will be filled to mitigate the problems.

“I can understand that revenue officers are overburdened while working in multiple tehsil offices and that they are facing difficulties while issuing domicile certificates within the stipulated time. But let us hope the GAD fills these vacant posts very soon,” said Kotwal.

Irfan Amin Malik is a journalist based in Jammu and Kashmir and he tweets @irfanaminmalik.

J&K’s Controversial New Domicile Law Faces a Legal Challenge

The legal challenge to the domicile rules has underlined the importance of Article 35A, which safeguarded exclusive rights of permanent J&K residents until August 5, 2019.

Srinagar: The domicile law brought in by the Bharatiya Janata Party-led Central government in the union territory of Jammu and Kashmir is now facing a legal challenge. Petitioners have said that parliament has not delegated its authority of enacting laws for prescribing employment or appointment for a government job on the basis of residence to the Central government under the J&K ReOrganisation Act.

The new domicile rules, enacted by the Ministry of Home Affairs through an executive order in March this year, reserves government jobs in J&K for its ‘domiciles’, which also includes non-locals living in the UT for 15 years and children of Central government employees serving here for 10 years.

Before the reorganisation of J&K, non-locals were not eligible for jobs in the erstwhile state due to special constitutional safeguards incorporated in the constitution of India through a presidential order of 1954.

Grounds for legal challenge and route adopted for enacting law

Three petitioners – two domiciles of Haryana and one from the Ladakh union territory – have challenged amendments made in the Jammu & Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, on the grounds that they violate Articles 14, 16, 19 and 21 of the constitution.

On August 4, the Jammu and Kashmir high court sought responses from the Centre and J&K administration on the petition within four weeks.

Notified by the MHA on March 31 under The Jammu & Kashmir Re-Organisation (adaptation of state laws) Order 2020, these amendments were incorporated into the law by invoking Section 96 of the J&K Reorganisation Act.

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As per this provision, the Central government has powers to make adaptations and modifications to laws, whether by way of repeal or amendment, for facilitating the application of any law to the J&K and Ladakh union territories.

One of the main grounds for challenging the law is that parliament has not delegated its lawmaking powers under Article 16(3) of the constitution to the Central government under Section 96 of the Jammu and Kashmir Reorganization Act, 2019.

The petitioners have also submitted that the power delegated under Section 96 shall not be, in any manner, construed as a delegation of parliamentary power under Article 16(3) of the constitution. Article 16(3) says parliament can make any law prescribing employment or appointment for a government job on the basis of residence.

“Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment,” reads the constitutional provision.

According to the petitioners, the power delegated under Section 96 was only for the purpose of facilitating the applications of already prevailing laws in the former state of Jammu and Kashmir, or to make laws applicable to new union territories of J&K and Ladakh.

They have contended that every modification or adaptation of any law must be done in that reference only, and not beyond.

Spotlight on Article 35A

The legal challenge to the domicile rules has underlined the importance of Article 35A, which safeguarded exclusive rights of permanent residents of the erstwhile state in jobs before last year’s unilateral constitutional changes.

Article 35A, which was incorporated in the constitution through “The Constitution (Application to Jammu and Kashmir) Order, 1954′, protected special rights of J&K’s permanent residents on employment, acquisition of immovable property, etc.

On August 5 last year, Article 35A was abrogated by superseding The Constitution (Application to Jammu and Kashmir) Order, 1954 through constitutional order 272.

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A former law secretary of J&K, who did not want to be named, said that domicile law and rules are susceptible to challenge on the grounds of discrimination, unless some kind of protection is given in the constitution itself on the pattern of Article 371A-G.

“Article 14 and 16 of the constitution of India do not permit discrimination in matters of employment on the grounds of residence. In that sense, barring non-residents from employment in the UT is violative of Article 14 and 16. This was why Article 35A had protected any challenge to restrictions placed on employment and purchase of immovable property in the J&K state,” he said.

He said the concessions made in northeastern states are protected by Article 371.

“Domicile law and rules are vulnerable unless some kind of protection is given in the constitution itself on the pattern of Article 371A to 371G,” he opined.

Criticism of domicile law

The domicile law has faced widespread criticism in J&K, as people see it as a first attempt towards changing the region’s demography.

The law opens jobs to ‘outsiders’, which was not possible before the abrogation of J&K’s special status.

Under the law, a person living in J&K for at least 15 years is eligible for all jobs in the UT. It also extends domicile rights to children of Central government employees who have served in the UT for at least 10 years.