Prof Dr. K. L. Bhatia
Without prejudice, my small writes up is purely from the precepts of legal and constitutional niceties with least political niche and juggling. Many write ups on domicile in the Union territory of Jammu Kashmir have not been presented with elocution but have been confounded in Shakespeare language ‘to be or not to be’. It does not augur well to pant over and wheeze over Articles 370, 35A, Jammu Kashmir constitution, etc.(which were worst than the partition of United India) whence One Nation (India Bharat) One Constitution (Indian) One National Flag (Indian) One Nationality (Indian) One Citizenship (Indian) One Domicile (Indian) have been achieved after seventy years of great effort. Let’s not fall prey of mischievous design of those who are bent upon to weakening the Indian federal polity through the guise of domicile deriving force from such constitutional provisions which have lost their utility and relevance after 5 and 6 August 2019. In the backdrop of this, it is imperative to comprehend the concept of domicile from the perspectives of new constitutionalism crafted by the special skill of the Parliament of India to strengthen the basis of federal foundation of the basic structure, and as such will be remembered historic in the independence history of India and will be written in golden words in the modern history of India since the soup and sauce developments of invisible hands of invisible State have been evaporated.
Who shall be citizens of India — Whether domicile, residence and place of birth distinct? Articles 5-11 of the Constitution of India encapsulate as to who are citizens of India at the commencement of the Constitution, namely, the citizens have been classified into three categories (i) citizens by domicile; (ii) citizens by migration; and (iii) citizens by registration. Article 5 came into force immediately with effect from the date of adoption and enactment of the Constitution as stated in the Preamble language, 26 November, 1949, viz., “Every person who has his domicile in the territory of India; and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India, shall be a citizen of India”. That is, the persons of Indian origin shall be the citizens of India. So, this lays down “citizens by domicile”. This applied to the permanent residents of the erstwhile State of Jammu Kashmir and continues to apply to the residents of the Union Territory of Jammu Kashmir. This unequivocally manifest that there is single citizenship of India. Though permanent residents of the erstwhile state enjoyed certain special rights and privileges, but, now, they do not continue to such rights and privileges as those stand abrogated. Be it be clear that the provisions of citizenship as encapsulated in Articles 5-11 were extended to Jammu Kashmir vide Constitutional Application to Jammu Kashmir Order 1950 and was further reiterated by CO 1954 that superseded CO 1950. There ought not to be any confounded confusion with the expressions ‘permanent residents’ and ‘citizenship’. Article 5(c) came into force from the date of the commencement of the constitution, i.e., 26 January 1950 as stated in Article 394 as the commencement date of the constitution, i.e., “Every person who has his domicile in the territory of India, and who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be citizen of India”. Articles 6-10 lay down as to be the citizens of India at the commencement of the Constitution, i.e., 26th January, 1950, viz., ‘citizens by migration’ and ‘citizens by registration’. These Articles lay down three categories of people who are brought within the ambit of citizenship, viz., (a) persons who are residents in India but who have migrated to Pakistan and have returned to India with a permit expressing the intention to permanently settle in India before 19th July, 1948; (b) persons residents of Pakistan and who have migrated to India on or after 19th July, 1948; and (c) persons who or whose parents are born in India but are residing outside India (persons of Indian Origin: PIO) and have registered themselves with the Indian Consular Officer or to the Diplomatic Representative of the Government of India in foreign State and shall be deemed to be the citizens of India. The persons who have come before 19th July, 1948, citizenship is automatic. Those who have come after 19th July, 1948, certain procedural conditions were laid down and when those conditions were satisfied they were entitled to citizenship. Article 11 lays down as to who shall be the citizens of India after the commencement of the Constitution as determined under the Indian Citizenship Act, 1955, as amended up to CAA 2019, viz., “acquisition and termination of citizenship”.
It may be a pointer that two expressions are used in the constitutional language of these provisions, namely, ‘domicile’ and ‘resident’. The Constitution of India does not define the expression domicile. The term domicile is a complex concept. In terms of constitutional language of Article 5, every person having domicile in India at the commencement of the Constitution, and fulfilling any of the conditions, is a citizen of India of Indian origin, viz., (i) he was born in India; (ii) either of whose parents was born in India; (iii) who has been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution. Domicile is in relation to the place of a person’s habitation, that is, permanent home. A person’s habitation is the country which is considered legally to be his permanent home. A person’s habitation is fixed without an intention of removing there from; mere residence is not enough; residence in the country and the intention to make it his home are imperative to constitute a domicile. It is universally acknowledged truth that every person has a domicile at his birth called the domicile of origin, which in relation to Indian citizenship, means citizen of Indian origin. Domicile of Indian origin cannot be changed unless and until the person-citizen of Indian origin acquires a new domicile which in Latin expression means animo et facto, i.e., the person-citizen of Indian origin settles in another country with the intention of permanently residing in a foreign country of his choice with an intention of never returning to India again. It is worth mentioning that under the Constitution there is no separate domicile of any State; the Constitution of India recognizes only one domicile of India, and one domicile of India makes one or single citizenship.
It is good settled law in India in Pradeep Jain V. Union of India, 1984. The Supreme Court of India in its majestic language has repudiated the notion of State domicile. The Apex Court has asserted that there is only one domicile, i.e., domicile of India and domicile in the territory of India. Indian federalism is indestructible union of destructible units, and Union means “India that is Bharat shall be the union of States”, which makes Indian federalism as one indivisible system with a single unified justice delivery system having at the Apex the Supreme Court of India in the hierarchy. In view of this, there is one domicile, i.e., indestructible, unbreakable, and permanent domicile of India.
In the backdrop of this, the Constitution of India does not recognize dual or plural citizenship stating that no person can be a citizen of India if he has voluntarily acquired the citizenship of a foreign State.
The state subjects or permanent residents of erstwhile state of Jammu Kashmir were not domicile of the erstwhile state but the domicile of India having permanent living abode or habitation in the erstwhile state, and undoubtedly citizens of India of Indian origin. Therefore, the expression domicile used in The Jammu and Kashmir law relating to Civil Services (Decentralization and Recruitment), as amended up to March 2020, should be construed in terms of the above referred holding of the Supreme Court, namely, “domicile of India and domicile in the territory of India”. This unequivocally means that a citizen of India of Indian origin can have abode and habitation in any part of the territory of India including the Union Territory of Jammu Kashmir. Thus, Domicile for purposes of appointment to any service vide section 3 and section 3A of the above mentioned law seems to be inclusive of all the residents of erstwhile State of JK and does not seem to be exclusive of any caste, religion, community, and/or internally displaced persons, and/or migrants, and/or refugees. The aim and objective of the provisions of the said law apparently be seen for the rehabilitation and settlement of such habitats per se. Therefore, they including their children or wards living in any part of the territory of India continue to be citizens of India of Indian domicile of Indian origin having living abode and habitation in the Union Territory of Jammu Kashmir under the Reorganisation Act, 2019 duly amended by CAA 2019. There is no stretch of imagination and clouds of doubts should not be shrouded veiled with masks any sort of notoriety. Similarly, West Pakistan Refugees shall cease to be victims of discrimination of statelessness and shall be citizens of India with Indian domicile having living abode and habitation in the UT of Jammu Kashmir and entitled to the fruits of above delineated statutory provisions.
It, therefore, unequivocally discerns that an Indian person’s residence, i.e., living abode, within India may change, but domicile by birth never changes. An Indian domicile of Indian origin is thus the National of India and, therefore, Indian domicile naturally means Indian Nationality and Indian citizenship, which entitles him to civil and political rights, social and economic rights, rights of public employment (Gazetted and non-Gazetted posts borne on the establishment of any department or service of the Government; and class IV posts borne on the establishment of any department or service of the government or any Government company, organization and body substantially owned or controlled by the Union Territory), familial relations rights such as succession, marriage, minority, guardianship, etc.
“The Government of the Union Territory of Jammu Kashmir vide its Orders of May 16, 2020 and May 18, 2020 has accorded legal-moralist validation to the subject of domicile by evaporating the soup and sauce of notoriety knit around it.”
(The author is former Dean Faculty of
Law and Founder Director The Law
School University of Jammu; Professor
National Law University Jodhpur)