New domicile law in J&K: A destructive Approach

kashmir_2
photo: Kashmir Despatch

By Syed Basit

A state is often recognized by its people, their culture, traditions and customs, more importantly by the vision and ideas of its youth. The minds of youth of J&K are under extreme stress and agony due to threat visible to the employment avenues by way of increase in competition as new the Domicile Law is likely to qualify lakhs of new candidates for public and private sector employment. The nature of the state of Jammu and Kashmir was changed to Union Territory from a state, citing reasons of unemployment and under-development inter alia prevalent in the erstwhile state. The move and the policy involved in the passing of the parent statute, i.e., Reorganization Act of 2019 has to be reflected in the rules made under the same statute, for the general principle of delegated legislation requires that there has to be conformity between the main provisions of the Act and the rules made thereunder. So, if seen from this perspective, the Domicile rules are clearly against the main policy of the Act, as these are likely to increase competition amongst the local populace.

The policy of the central government should have been to further the opportunities for the people of J&K, particularly for the youth. However, it seems that the population has to still suffer from the mental agony and pain, the line of which has never changed since past three or more decades. The scholars, academicians, legal minds or even the separatists in the Valley opposed the abrogation of Article 370 on the ground that the centre has a plan to bring demographic change in the Valley, and now the provisions of the rule seem to corroborate their argument.

According to Domicile rule for J&K, a person residing in J&K for at least 15 years will now be eligible to be a domicile of the UT. Section 3A of JK Reorganization (Adaptation of State Laws) Order, 2020 under J&K Civil Services (Decentralization and Recruitment) Act has been introduced to define domicile. According to the section cited above, any person who has resided for a period of 15 years in the UT of J&K or has studied for a period of 7 years and appeared in 10th or 12th examinations in an educational institute located in the UT of J&K before this new law, that is before 5 August 2019, would be considered a J&K resident.

The definition of domicile is wide in nature, as it includes the children of Central Government officials, All India Service officers, Officials of Public Sector Banks, Statutory bodies, officials of Central Universities and recognized research institutes of central government who have served in J&K for a total period of 10 years.

The definition also includes persons registered as a migrant by the relief and rehabilitation commissioner (Migrants) in the UT of J&K.

Under this Law, the Tehsildar has been authorized to act as a competent authority for issuing the domicile certificate and through the same order the centre has repealed the J&K Civil Services (Special Provisions) Act. The said provision is the main problem as it leaves all in the hands of a simple executive official who shall have the power to give certificates for domicile, again leaving many chances for the abuse of such a discretionary power.

The domicile law has been enacted exactly at a time when there is no representative government in the erstwhile state of J&K. The Modi government took advantage of the prevailing circumstances as there is an ongoing pandemic and also the J&K is under the President’s rule, so that the chances of protest was very less. Otherwise it would have been very difficult to impose such a harsh law in the UT.

Impact of the Domicile Law: a general analysis from a practical aspect

Before 5 August 2019, J&K enjoyed a special status under the constitution of India via Article 370 and 35A, which presently stand abrogated. The fresh changes made by the Central Government by introducing a new definition of Domicile in the UT through the J&K Reorganization (Adaptation of State Laws) Order 2020 will allow the Indians from all over the country to apply for local government jobs in J&K, including in its police force, which was previously reserved only for J&K residents. This would add more heterogeneity to the existence of the local populace.

As a result of this new law, the non-natives will now be able to serve in positions like those of SHO, SSP, Secretaries, and Heads of the Departments, Deans and professors in the state-owned universities. It is pertinent to mention that the new domicile rules are against the main purpose of the parent statute (Reorganization Act) which was passed in order to eradicate the problems of unemployment in the UT of J&K as the Modi Government claimed while passing the Act. However, it is poised to create more unemployment problems by allowing the non-natives to apply for the local government jobs, thereby diluting and demeaning the promise made by the Prime Minister. The Kashmiri unemployed youth will feel more aggrieved as in Kashmir, unlike in other states, we don’t have a developed private sector where the unemployed educated youth could go and earn their livelihood to live a decent life which is our fundamental right provided under Article 21 of the Indian Constitution.

Meanwhile the new domicile law has faced a backlash and criticism across J&K from party leaders belonging to different local political parties such as NC, PDP, etc. The National Panthers Party Chief, Harsh Dev has described the domicile notification as an “obnoxious piece of superimposed legislation.”

These moves will affect and destroy the fabric of the society in Kashmir, as has been witnessed by the local people for a long time. While promising a “healing touch” to the people of Jammu and Kashmir, the central government can’t afford to further inflict wounds.

Bio:
Syed Basit is a student of law at the Department of Law, University of Kashmir and can be reached at basitsyed5321@gmail.com

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