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Does domicile certificate dilute State Subject law?

K B Jandial
There appears to be no end to controversies in Kashmir that vitiate the peace and tranquility of once called “Paradise on Earth” more often than not. The enemies of peace in almost every situation are no other than the separatists who claim to represent the sentiments of a particular segment of population that sells the unachievable idea of “azadi” and in the process ruin Kashmir’s peace and economy.Mainstream opposition parties too don’t miss opportunities to exploit such public protests to run down the Govt of the day.
After a prolonged turmoil following Burhan Wani’s killing in an encounter that spread over the entire tourist season and working period, Kashmir is again on the threshold of a new phase of disturbances.  This time, the issue raised by separatists is the grant of Domicile Certificates to the West Pakistan refugees living in Jammu for the last seven decades without any tangible rights akin to “State Subjects” due the State’s old peculiar law that confers special privileges to them to the exclusion of other Indian citizens. Surprisingly, the 3-time CM and the  president of State’s premier and secular party, Dr. Farooq Abdullah too has lent his weight to the separatists on this issue claiming it as “dilution of State Subject law and identity”.
Indeed,the special PRC law is discriminatory in nature but has constitutional protection. Consequently, these refugees have been deprived of basic rights but however,are entitled to rights available to other Indian citizens like jobs that are not under the State Govt and participation in Lok Sabha election.

Straight Talk

In the deplorable phase of communal frenzy and bloodbath that marked the birth of two nations in 1947, non-Muslims migrated from Pakistan to different parts of India. Out of about 47 lakhs Hindus and Sikhs who migrated to safer locations in India as refugees, 5764 families mainly from Sialkot, one of the richest cities of West Pakistan, and Shakargarh had entered Jammu. It was Sheikh Abdullah who was then heading the State administration, allowed the refugees to stay in the border villages. Today, their number is 19760 families including 20 Muslims. Barring these families, all other refugees who migrated to other parts of the country have since assimilated into their new homes without carrying any taboo of being ‘refugees’. But this was not so in Jammu where they are ‘alien in their own country’.
Political leaders continued to roll out promises to these unfortunate refugees for their permanent solution but the State laws and Kashmir leadership always came in the way. No political leader in India or J&K had courage to brush aside all these obstructions; legal or political, and do justice to them. Modi during his election campaigns in Jammu in 2014 and 2015 too parroted similar promise to them as also other categories of refugees in the Jammu. The PDP-BJP Agenda for Governance also included this issue for action.  It records under heading “Social & Humanitarian Initiatives” that “For the deprived groups, the coalition Government will work out a one-time settlement for refugees from Pakistan Occupied Kashmir of 1947, 1965 & 1971; take measures for sustenance and livelihood of the West Pakistan refugees…”
A pleasant announcement came in early December 2016 that the State Government would issue Domicile Certificates to all these refugees who could not be given Permanent Resident certificates under State laws. Naib Tehsildars were authorized by the State Govt to issue certificates whose format too has been communicated.Even as citizens of India they were facing problems in getting Central Government jobs for want of domicile certificate. The certificate records their original place of residence in Pakistan before migration and the present place of residence. It verifies two facts, one is that the certificate holder is a Displaced Person (DP)from West Pakistan and the second is the present domicile.  It is not Permanent Resident Certificate which has its own history and legal requirements.
It was in 1927 when the local people agitated to the Maharaja Hari Singh that Punjabi were coming to J&K to grab major share of jobs and acquire land that deprived the natives of these limited opportunities. Kashmiri Pandits who constituted the major educated class amongst the locals were the worst affected by this trend. To protect the interests of the locals, a State notification bearing No. I-L/84 dated 20th April, 1927 was issued followed by  another State Notification No 13/L dated 27th June, 1932 that categorized the residents in Class I, Class II and Class III. This law was allowed to continue even after Independence to protect the interest of the ‘State Subjects’ under Delhi Agreement of 1950 and subsequently by the State and Union Constitutions.
Section 6 of State Constitution defines the Permanent Residents as “(1) Every person who is, or is deemed to be , a citizen of India under the provisions of the Constitution of India shall be a permanent residents of the State, if on the 14th day of May, 1954- (a) he was a State Subject of Class I or of Class II: or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date…”
Section 8 of  the  Constitution empowers the  State Legislature to “make any law defining the classes of persons who are, or shall be, permanent residents of the State,” while Section 9 gives power to legislature to (a) ” defining or altering the definition of the classes of the persons who are, or shall be, permanent residents of the State: (b) conferring on permanent  residents any special rights or privileges” (c) regulating or modifying any special rights or privileges enjoyed by the permanent  residents”
The State Constitution did not define ‘Permanent Residents’ but referred to the Maharaja’s notifications of 1927 & 1932. These privileges and rights are in gross violation of the fundamental rights of Indian citizens being discriminatory on grounds of place of birth (Art. 15 (1), equality of opportunities for employment (Art. 16 (1), right to acquire, hold and dispose  of property ( Art. 19 (1) ( f), and right to reside and settle in any part of India ( Art. 19 (1) ( e).The Govt of India had agreed to protect these special rights of the’State Subject’ but to avoid misunderstanding the words ‘State Subject’ were agreed to be substituted by words ‘Permanent Residents’ even in the State Constitution. With the Constituent Assembly ratifying the Accession on 5th February, 1954, and issuance of Presidential Order on May14, 1954 under Article 370,  Part-II of Indian Constitution was extended from May 14, 1954 recognising  ‘State Subjects’ as Indian citizens from Jan.26, 1950,  but Part-III ( Fundamental rights) extended from the date of issuance of the Order i.e May14, 1954. Consequently,  the Constituent Assembly made related provisions for ‘ Permanent Residents’ by inserting Sections 5A to 5F first in the  Kashmir Constitution Act of 1939 under which the State was run till the new Constitution of the State was adopted and enforced on Jan 26, 1957.
It is noteworthy that special rights and privileges to ‘Permanent Residents’ under State Constitution are  not static and can be ” defined and amended” by the State legislature in terms of the power conferred on it by Sections 8 & 9. So, the Legislature can define ‘Permanent Residents’ to include or exclude any group of people on any exigency. The State had used this power once for granting ‘Permanent Resident’ status to Tibetan Muslims in Kashmir. They were not only settled in a separate Tibetan Colony in Srinagar but also allowed jobs under the Govt.  No issue, it was compassionate consideration. But why West Pakistan refugees were deprived of this facility? Is their religion a real problem?
Separatists are fueling the issue of Domicile Certificate to West Pakistan refugees in Jammu by misleading people of Kashmir that it would change the demography of J&K. As per 2011 Census Report, the Muslim population the State was about 68% (85.67 lakh out of total population of 1.25 cr with decadal addition of  17.74 lakh against 5.61 lakh of Hindus),and how can less than 20,000 Hindus and Sikh families living here since 1948 would change the demography? They are motivated by more of communal consideration and not as much of claimed change of demography or any other rationale. Moreover, Domicile Certificate is neither PRC nor the State PRC law changed to bring these DPs in the fold of the State. This is sheer disinformation.
Why the separatists and other mainstream Kashmir centric parties are silent on the increasing presence of Rohingya and Bangladeshi refugees in Jammu? Is their silence because of their being co-religionists?
According to Govt. figures given in the last session of the Assembly, about 13,400 Rohingyas and Bangladeshi refugees are living in Jammu. Bathindi, a Muslim colony in Jammu city, alone housed 686 Rohingyas. This ethnic group, along with thousands of their Muslims was forced to leave their homes after a crackdown on them by the Myanmar junta about five years ago. Despite illegal settlers in Jammu they talk about”Jammu being hundred times better than their native Myanmar as all religious groups live here in harmony”. However, security agencies view them as a security risk in view of Pakistan’s exploitation of vulnerable groups for subversion.
NC is gearing up for bigger ruckus in the budget session of the State Legislature, making it an issue of “dilution of State’s special identity”. But how? It is never explained. While this unlawful settlement of foreigners is going on for last four to five years but both BJP Govt in the Centre and now in the State is maintaining intriguing silence of fast changing demography of the Winter Capital.
Many of the womenfolk amongst them have married the local Muslims and thus legally became ‘State Subjects’ while their relations have bribed their way to get this status through manipulation. Obviously, the separatists and Kashmir based parties don’t view this trend as threat to demographic structure of J&K.Even if the people of Kashmir may not fall in the trap of separatists for another spell of upheaval, the stand taken by them have exposed their communal politics.
(feedback: kbjandial@gmail.com)

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