K B Jandial
Last week, J&K Domicile Rules have notified procedure for obtaining Domicile Certificate by different categories of ‘State Subjects’ and ‘Non- State Subjects’, documents required and the competent authority to issue these. The Rules have been formulated in 48 days after amendment in The Jammu & Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 through J& K Reorganisation (Adaption of State Laws) Order, 2020 by the MHA. The amendment actually replaces the decades old Permanent Resident Certificate (PRC) with a new Domicile Certificate (DC) for recruitment in UT’s civil services besides defining the ‘Domicile’.
Initially, the posts up to Level-4 (Salary up to Rs 25500) were reserved for J&K Domiciles which was extended to all posts within three days mainly due to the pressure from just a week-old Kashmir based APNI Party having blessings of Modi-Shah duo, and also of local BJP leaders. With this, all ‘outsiders’ are barred from applying for these jobs as before under the controversial and discriminatory ‘State Subject’ law protected by Article 35A. In respect of jobs, pre-abrogation of Article 370 situation has been nearly restored with only difference of addition of some categories of residents and ex-residents, who were hitherto excluded from Govt jobs. Rules for land and property transactions in the context of special rights of Domiciles are yet to be formulated.
The Domicile Rules are the natural corollary of the amendment in the Civil Services Act of 2010 by MHA and have been hailed as “historic” by some leaders which is normal for ruling parties to do so. But if ever, there was any “historic” moment on the subject it was on August 5-6, 2019 when the controversial and temporary Article 370 was changed to extend full legislative powers of the Parliament and all provisions of Indian Constitution to the State before it was bifurcated in two UTs. It also annulled the Presidential order of 1954 including the controversial article 35A.
Legally speaking, amendment in the Civil Services Act of 2010 was a plenary legislation and the Rules notified under SRO are the delegated legislation. In fact, these Rules cannot enlarge the scope of the definition in the Act by inclusion of any class of people in eligibility criterion for domiciliary, ‘changing’ the basic definition. The specific expression of “Displaced Persons” doesn’t figure in the definition in the plenary legislation even though three categories of DPs had been struggling for long for justice. They are the West Pakistan Refugees, PoK DPs (1947) and Chhamb DPs (1965). The amendment refers, inter alia, to a category of migrants eligible for DCs in Section 3A (1) (b). It says, “Who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) in the Union Territory of Jammu and Kashmir”. Interestingly, the Govt in its wisdom enlarged the scope of the eligibility for DC, obviously to placate some of the outraged DPs, simply through a Govt Order no: 52-JK (DMRRR) of 2020 dated 16.05.2020. This Executive Order provided procedure for registration of the “left out bonafide persons, displaced persons or migrants and their descendants who are not registered with the Relief Commissioner (Migrants) for variety of reasons such as being outside J&K…for the purposes of getting the Domicile Certificate only.” The DPs of 1947 and 1965 were registered with Provincial Rehabilitation Officer and not RC (M) which came into being only in early 1990. The record of DPs is lying with the Custodian Jammu after winding up of PRO organisation.
Now, these “left over” persons have to be registered with RC (M), competent authority to issue DCs to all registered migrants and DPs. Among the documents listed in Govt Order as “proof” includes, “Proof of owning or possessing immovable property in any part of J&K on or before 14th May, 1944” which is identical to the norm for eligibility for PRC prescribed in Section 6 (1) (b) of J&K Constitution which defined Permanent Resident. So, this apparently will take care nearly 5300 out of 22600 DP families of 1947 who had fled to this part of J&K after their areas were captured by Pak supported invaders amidst killings and mayhem; and settled by the Govt in different camps outside the State. While it is a well-intentioned action but perhaps legally flawed as it is apparently beyond the delegation of power to the Executive by the Statute. If the order of reservation of posts can be changed in 3 days, why this addition couldn’t be incorporated in domicile definition?
There is no issue on including children of officers/officials of All India Services, Central Govt and Central Govt PSUs, Public Sector Banks, Central Universities etc for according domiciliary status. But the duration of ten years’ service in J&K is very less. It should be at least 15 to 20 years.
Most of the PRC holders are worried about the ordeal that awaits them on account of replacement of their PRCs with DCs. In the absence of any official word, it is widely perceived that the PRC is no longer a legal document as Section 5 of J&K Constitution that provided PRC is inoperative after extension of all provisions of Constitution of India and scrapping of Article 35A that gave constitutional protection to the discriminatory State Subject laws. Moreover, the relevant law-The Jammu and Kashmir Permanent Residents Certificate (Procedure) Act, 1963 too stands repealed.
Even if the PRC is not a legal document yet it is the basis for DC. Where is the legal hitch in declaring PRC a deemed Domicile Certificate? Just imagine the scenario that might recreate demonetisation mess when PRC holders, numbering about 90 lakh or even more, start filing applications for DCs. This “pain” can still be avoided by Govt of India by exercising the powers to remove the difficulties under Section 103 of the Reorganisation Act or the UT Govt, by declaring PRC as deemed Domicile Certificate. If the oath taken by the Chief Justice and other Judges of J&K High Court under J&K Constitution can be declared as deemed to have taken oath under the Constitution of India to avoid fresh appointment and oath by all of them on Oct 31, 2019, why can’t PRC be the deemed Domicile Certificate. It would be a huge convenience, both for the people and the Govt. besides saving funds, time and energy of the employees and inconvenience of citizens. This can be done by the Govt even now by appreciating the problem and then persuading MHA in the interest of everyone.
On social media, some call these apprehensions as misplaced saying that not every PRC holder is required to get DC as it is only for purposes of Govt jobs. But there is no convincing answer that every PRC holders would need some documents in place of PRC in the event of any dispute, be it of land, property transactions or any Govt facility. The official sources claim that like the Civil Services Recruitment Act, the land laws will also be amended. Even then, there has to be Domicile Certificate as like recruitment, there is every likelihood that domicile law would prevail to allay fear of the people of their land being taken over by “outsiders”. In Himachal and North Eastern States, restrictions exist, mostly constitutional ones, both for jobs and land. Then how can there be separate DCs for jobs and land /property. It has to be one document for all purposes.
The Centre didn’t follow Himachal model for an integrated policy listing special rights of Domiciles for jobs, land and property, horticulture etc, and instead went in for sector-wise special rights to J&K Domiciles. The Himachal policy of August 18, 1972 defined a bona fide Domicile as a person who has a permanent home in Himachal, residing in HP for a period of 15 years ( later on increased to 20 years) or having his permanent home in HP but living outside on account of his occupation. On February 22, 2017, the H P Government made a modification that says a Himachali woman married outside the state would not lose her permanent domicile. Children of Government employees are not automatically eligible for grant of domicile certificate unless they are otherwise eligible.
What is meaning of Domicile? It is “the place where a person lives” as per Cambridge dictionary. Oxford and Webster dictionaries too say similarly as ” the place where someone lives” or ” a dwelling place, place of residence, home”. But unlike Himachal policy, it is not mandatory to be living here at the time of applying for Domicile Certificate under J&K Rules. Section 3A (1)(a) of Amended Civil Services Act of 2010 only requires one “has resided” for 15 years or “has studied” for seven years with passing of 10th/12th Class. In HP it is “residing for 15 years”, means continues to reside. One can understand the unusual situation where people had to be move out right from 1947 but migrants and Displaced persons are specifically mentioned who are living outside the UT and are required to be registered with Relief Commissioner ( Migrants) even now, then why this provision? Which is the category of people intended to be covered by this clause?
Incidentally, the 15 years’ window for acquiring J&K Domiciliary Status is almost identical to “Class III State Subject” in Maharaja’s notification of 1927 which was omitted by the State Constituent Assembly while adopting the notification for PRC definition in Section 6 of the Constitution.
The related issue is the absence of the precondition of being Indian Citizen and names of the specific categories of people to be granted domiciliary status like Kashmiri Migrants. Had the names of West Pakistan DPs, PoK DPs, Chhamb DPs settled within and outside J&K, Safaikaramcharies, etc been mentioned in the definition and asked for registration with a Competent Authority, the eligibility norm of Section 3A(1) (a) would not be needed unless it is meant for someone else. Even the people like Rohingyas who are staying at Jammu for over ten years could get Domicile certificates under this clause. Earlier, some of them had procured PRCs. Will the Govt care to clarify these issues for better understanding?