At a time when the country is struggling with the COVID-19 pandemic, the union Home Ministry issued a new domicile law repealing 29 state laws and amending 109 others on 31 March, with immediate effect. It is not a law made by the people’s representatives; it is a Machiavellian order that has started the process of demographic transition in Jammu and Kashmir.
With this, the State Subject law has been restored to its pre-Hari Singh era state where the ‘outsiders’ – especially Punjabis – were recruited in the state Army and administration. After their demise, they would leave behind kith and kin to continue domination and draining of the state exchequer.
How State Subjects & Their Privileges Were Historically Defined in J&K
Initially, the Dogras and Kashmiri Pandits agitated for the incorporation of the State Subject law, and Kashmiri Muslims were (largely) not a part of the process due to the comparative socio-economic disadvantage and the communal nature of Dogra rule (Ganai, Mohammad Yusuf, Kashmir Struggle for Independence). Since then, the State Subject law has remained significant in the history of Jammu and Kashmir.
Post-Independence, the State Legislature was empowered to define the State subjects and their privileges, rights and duties, as the Constitution of India had ensured the protection to the subjects of Jammu and Kashmir through Article 370 and 35A.
After 5 August 2019, with the reading down of Article 370 and abrogation of Article 35A by the Modi government at the Centre, the State Subject and Land laws began to crumble.
Under Section 96 of the Jammu and Kashmir Reorganisation Act 2019, the MHA issued a new domicile rule, officially called Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order, 2020 on 31 March, the clauses 3A and 5A have sent chills down our spine. Section 3A defines who is a domicile, and Section 5A defines the special rights of the domiciles. These rights rested with the State Legislature before the abrogation of Article 370, and now they have been usurped by the union government.
Who Can Be Called a ‘Domicile’ in J&K?
In the backdrop of growing indignation and protests against the import of civil servants from outside, leaving meagre employment opportunities for the locals, Maharaja Hari Singh had set up a commission to define the term ‘State Subject’. This definition, that was later accepted widely, divided the subjects into the following three categories:
- Class I: All persons born and residing within the state before the commencement of the reign of His Highness the Late Maharaja Gulab Singh, and also the persons who settled therein before the commencement of the samvat year, 1942 (1985 A.D) and have since then permanently resided therein.
- Class II: All persons, other than those belonging to Class I, who settled in the state before the close of the samvat year 1960 AD, and have since, permanently resided and acquired immovable property.
- Class III: All persons, other than those belonging to Class I and Class II, permanently residing within the state who have acquired under a Rivatnama and immovable property under an Ijazatnama, and may execute Riyatnama after ten years continuous residence therein.
After Independence, Article 35A, that was added to the Constitution of India through a Presidential Order, The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, under Article 370, empowered the Jammu and Kashmir State’s legislature to define ‘permanent residents’ of the state, and provide special rights and privileges to those permanent residents. With the abrogation of Article 35A, the state constitution has been declared inoperative.
New Domicile Rules for J&K
As per Clause 3A of the new domicile rules, a domicile of UT of J&K is:
- anyone who has resided for a period of 15 years in the UT of J&K or has studied for a period of seven years and appeared in Class 10 /12 examination in UT of J&K
- a registered migrant with the Relief and Rehabilitation Commissioner
- children of Indian Government officials, All India Services, PSUs, autonomous body of Centre, Public Sector Banks, officials of statutory bodies, Central Universities, recognised research institutes of the Centre who have served in J&K for a total period of 10 years
- children of such residents of UT of J&K who reside outside Union Territory of Jammu and Kashmir due to their occupations, but their parents fulfil any of the conditions provided in sub-section 1 (above).
What Are the Rights of a Domicile in J&K?
The Commission on State Subject, in its report in 1927, alerted Maharaja Hari Singh that “services, profits, and wealth passed into the hands of outsiders and the indigenous subjects lost enterprise and independence. It was very difficult to do away with the outsiders’ hegemony along with monopolisation of the State services. They conducted themselves in the State administration in such an organised and smooth manner that their absorption in the State services was neither visible nor challengeable” (A plea for State subjects Definition and its Genesis by Dogra Sadar Sabha).
In order to protect the interests of the subjects and to quiet the growing agitation, the Hari Singh administration favoured the requirement of Class I as the eligibility criteria for government jobs.
The definition of State Subjects was later adopted and subsumed, essentially unchanged, into the term Permanent Residents in the Jammu and Kashmir Constitution (Lamb, Alastair, Kashmir: A Disputed Legacy (1846-1990). The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and healthcare. Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’.
Section 5A of the new domicile law states that no person shall be eligible for appointment to a post carrying a pay scale of not more than Level 4 (Rs 25,500) “unless he is a domicile of UT of J&K.”
In this way, the rights of a domicile of Jammu and Kashmir have shrunken from the special category of land, job and election rights to only Class 4 jobs of an inferior category.
New Domicile Rules Pushed Kashmir To Pre-Hari Singh Era
The ‘Treaty of Amritsar’ on 16 March 1846 created the erstwhile state of Jammu and Kashmir and the British sold it to Raja Gulab Singh to materialise the indemnity heaped on the Sikhs against the first Anglo-Sikh War losses. The absence of an article describing the rights, interests or the future of the people of the state in the treaty paved the way for their exploitation at the hands of the ruler.
While commenting on the Amritsar Treaty in his book Cashmeer Misgovernment, Robert Thorpe writes, “towards the people of Cashmeer we have committed a wanton outrage, a gross injustice, an act of tyrannical oppression which violates every human and honorable sentiment, which is opposed to the whole spirit of modern civilization, and in direct opposition to every tenet of the religion we profess”.
Taking advantage of this unbridled absolutism, Gulab Singh and his successors recruited outsiders – especially Punjabis – in the state, and granted them extensive land grants.
Gradually, the outsiders manned the important chairs of authority, won contracts and controlled trade. In 1925, Gawashalal Koul, in an article in Akhbar-i-Aam, a newspaper in Lahore, painted a grim picture of unemployment in Kashmir, and wrote that the outsider hegemony in the state administration had left almost no jobs for the State Subjects, and if any post fell vacant by retirement or otherwise, it was filled by indirect recruitment on the basis of seniority – merit-based direct recruitment was unheard.
Eroding the Definition of ‘Domicile’
The gravity of the issue can be gauged from the fact that the high-powered five-member state council of Maharaja Hari Singh had four non-native members of different nationalities, ruling and administering the State Subjects. This special treatment to outsiders called gair-mulkis (non-natives) in the employment, contracts and trade, angered a good section of western educated youngsters who voiced their concerns and challenged the administration of the State to provide them with suitable jobs, and not give them to the Punjabis. The onslaught of outsiders in the State continued till the creation of the State Subject Classification in 1932.
The new domicile rule has pushed the people of Jammu and Kashmir back into the pre-Hari Singh-era – an era of outsider hegemony.
With the new domicile law, the demographic transition of Jammu and Kashmir has begun, as it has eroded the definition of domicile and added many new categories of people into it under the naturalisation window.
Apart from the rightful West Pakistan refugees and Valmikis, the Army personnel and security establishments, central government officials, and other designations mentioned in the law have received a legal stamp to become domiciles and build their homes anywhere in the UT. Their children will now be eligible for all gazetted, non-gazetted, and administrative-level posts. It won’t come as a surprise if they occupy high posts in universities, colleges, and administration in the future in a manner similar to that during the pre-Hari Singh era, resulting in ‘engineered outsider hegemony’.
(Hamid Rather is a Kashmir-based journalist and author. This is a personal blog and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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