B L Saraf
These days alphabets “C” and “D ” constantly hit the mind. Former for the health devastation it has caused and the latter for denoting terminologies that pervade current discourse . The subject experts tell us that we have to live with the Corona virus. As such the debate on ‘ C ‘ of the COVID -19 stands settled in favor of the Virus -with the saving grace that some adjustments made in the life style may allow our ‘ harmonious ‘ living with the demon. Alphabet “D ” lends sonority to the words like “Delimitation “, “Domicile ” and “Durbar Move”.
Here is the sample of debate these terminologies have generated ;
Domicile Certificate Rules
In order to operationalize The Jammu and Kashmir ( Adaptation of State laws ) Second Order 2020 dated 3rd April , so for as it provides for the Domicile Category in the J &K Civil Service (Decentralization and Recruitment ) Act 2020 – Shortly Act 2010 , the Government has notified J &K Domicile Certificate (Procedure ) Rules 2010 , vide SO No 166 of 18TH May 2020 (No 166 shortly) .
We are given to understand that domicile law has come into being for the protection of interests of the locals, so far as they relate to public employment and agricultural holdings . The fear was expressed in view of the Constitutional developments of August the 5th , 2019 which left field open for the non state subjects to enter in . The law indeed is a welcome development. But it must live up to purpose -which , primarily, is protect the local interests, and at the same time make some allowance for the outsiders . The law should not be an instrument of harassment for the locals – certainly it can’t be enabling for the new entrants to the UT and disabling for the hereditary residents . Unfortunately , as laid out , the laws give such an impression.
How ironic -if not absurd will it look when a Hereditary state subject of J&K – with hundreds of years residence claim – is in a queue alongside a person of just 15 years residence standing to seek a Domicile Certificate ( DC shortly) ?
Clause 5 of SO 166 , in a given table , prescribes class of persons eligible for a D C and the documents they have to submit in support of the claim . Under Serial No 1 Permanent Resident Certificate Holder is also required to submit an application before TEHSIDAR for obtaining the DC. The document he has to produce in support of the claim is the Permanent Resident Certificate (PRC For short). It is a case of PRC proving a PRC . One shudders to think how the scheme will unfold when put to the practice . Almost whole population of the UT will be in a line to get a DC . Just visualize the enormity of the exercise that has to be undertaken and the astronomical cost that will be incurred ! Not to speak of many man hours that will be consumed in the ” duplicating exercise .” Given the bureaucratic way of dealing with the files , surely , it will be nightmarish for a common applicant to sail through .
There is a simple solution to the problem . Government may issues one line order , that : the PRCs held by the holders shall, ipso facto , be deemed as DC s, with no fresh endorsement required .
It is worth appreciating that the government has taken note of the concerns of the Internal Displaced Persons of Kashmir (inappropriately called as Migrants ) and tried to address them. How we wish something more, as desired, had been done ! . Their concern was with respect to the creation of a Domicile Category of only those Kashmri Hindus who , consequent upon their forced displacement in 1990 for the reasons well known , were registered as Migrants with the Relief and Rehabilitation Commissioner (Migrants) Jammu (R C shortly). Purportedly, to address those concerns the Government has issued Order No ; 52- JK (DMRRR) of 2020 , (No 52 Shortly ) . The Order opens a door for the fresh registration of ” bonafide ” Migrants or displaced persons , enabling them to have a domicile certificate. Section 3 A (1) (b ) of Act 2010 has created a domicile category for those migrants who are registered with the R C. It was felt that most of the genuine persons got left behind who , in similar circumstances, had to leave the home and hearth; and , for variety of reasons , could not be registered with the RC. So, their inclusion in the domicile category was sought .
As discussed through these columns, an anomalous situation had risen because as per the above referred law only those displaced person would be eligible for DC who happened to be registered with the RC . This position went against the letter and spirit of the definition ‘Migrant ‘ has under Section 2 ( e ) of The Jammu And Kashmir Migrant Immovable Property (Preservation, Protection And Restraint On Distress SALES ) Act ,1997. If other conditions are satisfied , the definition is not dependent on the registration with RC. One can be a ‘Migrant ‘ without such registration. We had made this position clear in the earlier column. It is good that the government has appreciated the plea and come up with Order No 52 which is an effort to synchronize the definition of a ‘ Migrant’.
However , the Order has left much to be desired. Towards the end of clause 5) it has been emphasized “that purpose of the registration is for getting Domicile Certificate only .” If tomorrow such domicile clause is added to other laws -especially those pertaining to the land and other immovable property , as possibility is, the exercise will have to be undergone de nova . Remember Order 52 has a genesis in Act 2010 , as amended , which is available only for appointment to the public service in UT. Because, so far Domicile provision has made in Act 2010 , only .And once a Displaced Person is granted DC by availing Order 52 his registration with RC will lapse . This registration is co-terminus with the issue of DC. It won’t be available for him to claim any benefit which a normal registered migrant may be deserving . It would have been better had no such limitation been placed on the new registration : because there are hundreds of genuine migrants who suffer for want of such a registration. The matter needs a rethink to address real demand of the left over migrants.
In the first place there was no need for creating a Migrant Domicile category: for the reason that the enforced displacement of a person from his native place can never mean his giving up the claim of his original residence . For all legal and moral purposes he continues to be the original resident of the place he was forced to abandon, temporarily l. This position stands well recognized by the state when it issued ARZI – temporary ration card to the registered migrants, in 1990 .
UT requires one concise , specific and well thought out Domicile law which will take care of all emerging contingencies : the law that does not make a Permanent Resident Certificate Holder run from pillar to post .
COVID 19 has ensured that 2020 Darbar moves to Srinagar in installments . So , we rehear the ritualistic denunciation of this 147 year old practice. It started in 1987 when C M Farooq Abdullah declared that he would dispense with the tradition of bi – annual Darbar move . Rajiv Gandhi lent him support . Both went on to describe the practice a ” retrograde move ” which caused ‘ unjustifiable drain on the state exchequer ‘ .
Farooq’s attempt to do away with the bi- annual Darbar move was fought by the people in Jammu region . A peaceful agitation was launched under the leader ship of Bar Association, Jammu which forced the C M to back off . Thereafter, till a year ago it has been a happy life for the annual Darbar move . However , on the eve of this year Durbar move , the COVID 19 , infused a new life to the debate . Opinions , pro and against , qua the practice are coming thick and fast .
True , Darbar move involves a huge expenditure . But the benefits in terms of social cohesion , emotional integration and political unity , the shifting of secretariat brings in , some argue , far outweigh the monetary considerations. There is little common between the people living in two provinces of the state – by way of geography , history social fabric and cultural activity. Yet they have been living harmoniously like a one political entity. The practice of bi-annual ‘ Drabar move ‘ has with great degree of success harmonized the opposing traits. The exercise beside being a movement of the Capital, constitutes a measure aimed at the emotional integration of two different ethnic people. For the territorial and political integration of Jammu and Kashmir the practice of bi- annual Durbar move has , indeed, proved a boon .
Today, the need of the hour is to transcend geographical and cultural barriers’ : doing away with the shift process will mean an inculpable loss to the composite character. It will result in compartmentalization that shall be incompatible with the national and emotional integration of the people. For those who want disintegration of J&K, the stoppage of the bi -annual practice would come as God send opportunity. The inconvenience caused by the Darbar shifting can be overcome, partly, by resorting to the E ‘ governance mode and , partly, by the devolution of financial and administrative decision process to the lower levels. Empowerment of Panchayats and the local bodies could solve the problem to a great extent . Central Secretariat should only devise state plans and take decisions for the effective governess of all regions of J &K, retain pivotal role in macro managing things and ensure administrative and political balance of the UT.
It is painful that a voice to discard the practice of Darbar move should emanate from the land of Dogra Rulers . This is the one gift, among so many, the Dogra Rulers gave us . It has proved an instrument that has imperceptibly and without any clatter cut across the regional and psychological barriers and given people a sense of oneness.
The August 5, 2019 Constitutional changes gave an impression that delimitation of the assembly constituencies in the UT of J &K will get under way soon . It had become necessary in view of the increase in number of assembly constituencies and a provision for reservation of few of them for the S Ts. Nine months on , we hear of some movement on the front. But as the law stands the task will be a tough one. Because glaring anomalies are discernible in Sections 59, 61 and 63 of the J&K Reorganization Act , 2019 which will render them unworkable .
A joint reading of these sections creates a confusion : whether the elections will be held as per the last delimitation . In that case election can be held only for 83 seats and not 90 as envisaged after the fresh limitation. Another question that comes to the mind is whether state election will have to wait for a countrywide delimitation of the constituencies. The fresh delimitation , as provided by sections 59 – 61 of the Act, would require measurement of the territory and count of the people in each constituency which is to be carried out as per 2011 census . Section 63 of the Act , on the other hand ,makes reference to the first census taken after year 2026. Then there are the concerns of POK refugees and others .
(The author is former Principal District & Sessions Judge)
B L Saraf