Here is how I understand this new Domicile law, its meaning and its ramifications.
Though the new domicile order for Jammu and Kashmir ostensibly deals only with jobs, it has created a new category of residents of J&K which every Indian citizen can become through a process. The rules to become a J-K domicile issued on May 18 explicitly show that New Delhi wants to speed up the process: the certificate has to be issued within 15 days. And to prevent even a possibility of any resistance from the competent authority, a junior revenue officer for this purpose, the government has introduced an unprecedented penalty clause – a fine of Rs 50 thousand to be deducted from the salary of the official– if the official fails to issue the certificate within seven days after an applicant successfully appeals the higher authority.
This has serious and far reaching consequences.
The abrogation of J-K’s special status last August meant that the category of permanent residents or state subjects in J-K, and the rights associated with it, was discarded. The legal shields that prevented Indian citizens who weren’t permanent residents of J-K from owning land and immovable property, contesting and voting in state and panchayat elections, and securing government jobs were removed. This was the realisation of the ruling party’s long-held designs for J-K.
So, why did the Narendra Modi government, eight months later, create a new category of J-K residents to carry on with its post abrogation plans in J-K?
The reasons are manifold. In fact, the order which was subsequently amended to reserve all jobs for J-K domiciles is not a roll back, it’s a big step forward towards complete assimilation of J-K.
As the first implications of the abrogation of J-K’s special status started to appear, people in Jammu’s Hindu-dominated districts who had overwhelmingly supported the move across party lines demanded a mechanism primarily to secure government jobs for local residents. The new political outfit, Apni party, formed by a group of former ministers, legislators and activists from various parties with New Delhi’s blessings, too had been demanding an arrangement to reserve government jobs and land rights for the original inhabitants, or state subjects as they are called. This group, bound by their mutual acceptance of the abrogation of the special status, is being projected as the replacement for the pre-August 5, 2019 pro-India political structure, especially in Kashmir and the Muslim-majority Peerpanchal and Chenab Valley regions of Jammu.
The concern about jobs stemmed primarily from the fact that J-K’s Hindu population, which is around 28 percent, has historically had the larger portion of the pie in the local government structure (when compared with the percentage of their population). They were concerned that once competition for government jobs was opened to all Indians, they would lose out. The ruling dispensation could not ignore this constituency, which is its only support base in the erstwhile state. The new political party in Kashmir too needed this concession to stay relevant. It was also an easy demand to meet.
The opening of government jobs in J-K to non-state subjects is neither a priority for New Delhi nor integral to its goals behind the August 5, 2019 decision. While this job reservation ploy may benefit, to a limited extent, the state subjects, its scope is temporary and will lose its meaning on its own once this new domicile registry swells with new entrants and the post August 5 order is fully established. The introduction of a separate domicile category for J-K residents, however, is essential to driving forward the agenda that led to the August 5 decision.
There has been apprehension that large numbers of Indian Muslims, faced with communal polarisation across the country, might want to migrate to Muslim-majority J-K for security. In fact, as the challenge to the now-abrogated Article 35A (Permanent Resident or State Subject law) was being heard in the Supreme Court and its implications on the ground were being assessed, a former high court judge had told a visiting team from Delhi that once the bar on the purchase of land and immovable property, participation in assembly and local elections, and entry into J-K government jobs on non-state subjects was lifted, large numbers of Indian Muslims, feeling insecure in their native places, could migrate to J-K. Sources say that an elaborate survey of non-state subject migrant workers, particularly in the valley, that was subsequently done too had revealed that a majority of them were Muslim. This possible concentration of Indian Muslims in J-K would substantially undo the ruling party’s aim behind the abrogation of the special status. The introduction of the new domicile category may be designed to help contain this “unwanted” influx.
While the door of entry into J-K was kicked open on August 5, 2019, the creation of a domicile category means there’s now a doorman to regulate the flow as per the wishes and tastes of the state.
Unlike the state subject law, which granted the authority to verify permanent residentship on the deputy commissioner, who heads the district administration, and thus ensured multiple levels of checks, the process to issue the domicile certificate has little checks and balances and the power to grant it is given to a junior bureaucrat (tehsildar).
Though the new domicile category was ostensibly created to reserve a portion of the government jobs for residents, it has already transcended its stated aim. The move has already added a substantial number of non-state subject Indian citizens to the registry of J-K population’s which was earlier limited to original inhabitants, or state subjects. In the notification, Section 3A of the J&K Reorganisation (Adaptation of State Laws) Order of 2020, under the J&K Civil Services (Decentralisation and Recruitment) Act, defines the domicile as any Indian citizen “who has resided for a period of fifteen years in the UT of J&K or has studied for a period of seven years and appeared in class 10th/12th examination in an educational institution located in the UT of J&K…children of those central government officials, All India services officers, officials of PSUs and autonomous bodies of central government, public sector banks, officials of statutory bodies, officials of central universities and recognised research institutes of central government who have served in Jammu and Kashmir for a total period of ten years or children on parents who fulfil any of the conditions in sections.” The central government employees include bureaucrats, officials in other institutions, and army and paramilitary personnel.
In fact, the notification provides all the conditions required for an Indian citizen to become a J-K domicile. The domicile rule will be implemented retrospectively. This means any Indian citizen who meets this criteria (since 1947) can become a domicile in J-K. And since the order does not specify whether a central government employee should have served for ten years in one go, it will mean that 10 years of service in different stints over a period of time would also meet the eligibility requirement. The exact number of non-state subjects who will become domiciles through this mechanism, however, is not yet available.
In the first order on April 1, only grade 4 jobs – lowest on the ladder – were reserved for this new domicile category. There was an uproar in Jammu and the Apni Party also publicly opposed it. An amendment was issued two days later, reserving all jobs for domiciles (which means all original state subjects or permanent residents and the new population of Indian citizens added through this latest domicile order).
Two more amendments were made to the initial order. For the central government employee category, “have served” was changed to “shall have served”. This is an important change. While “have served” meant only those employees who had served for ten years until the date this order was issued, “shall have served” qualifies anybody who has already served for ten years or will serve in future. They have also changed “shall be deemed to be a domicile” to “shall be a domicile” to avoid any legal ambiguity. Even though all government jobs have been reserved for domiciles, it isn’t a return to the pre-August 2019 position. A substantial addition has already been made to J-K’s population who can now seek government jobs in the Union Territory. Besides, the new category of J&K residents – the domiciles – has been successfully introduced.
Sources in the government say another notification dealing with land rights will be issued soon. It will divide land into catalogues – agricultural and non-agricultural. The non-agricultural land will include residential, commercial and industrial. Then, there is the category of government owned or common land (it is a huge chunk of the land in villages and is now occupied by local people), and a survey is currently being conducted to identify it. A small chunk of land (mostly agricultural) can be owned by domiciles alone, while the rest will be opened up for every Indian citizen. There will also be no restriction on selling or leasing out land to industry (in the garb of development and job creation). So, even if this new land related rule is introduced, it will certainly open a lot of land and immovable property to non-state subjects. In fact, the chunk of land that will ostensibly be reserved for original inhabitants will also be shared by non-state subject Indian citizens who qualify as domiciles as per the new scheme. In case such a notification on land isn’t introduced, the current status is that any Indian citizen can buy land anywhere in J-K and the government can allot, lease out or sell land to any Indian individual or company.
After the abrogation of J-K’s special status, the right to vote and contest elections can be exercised by any Indian citizen and not permanent residents alone. After August 5, 2019, any Indian citizen can contest any poll election (parliament/assembly/ panchayat) and any Indian citizen who has an address proof (rent deed/bank account/ telephone or electricity bill in his name anywhere in J-K) can vote in all these elections. This won’t be changed.
There is no doubt that the recent decision is a continuation of the August 5 move and the goal is to “change facts on the ground”, that is, effect demographic change. In fact, this single order creating a new domicile category has already brought down the share of state subjects in the total population of the state considerably.
The permanent resident system shielded the demographic complexion of J&K as the only way to enter it was through marriage. Now that there is a mechanism to become a domicile, the addition to population will be continuous. The flow is going to be uninterrupted. Though a plebiscite to settle the Kashmir dispute is a remote and almost impossible possibility in the current international climate, the introduction of the domicile category is a well-thought out strategy to prepare for such an eventuality especially because J-K is still a pending issue in the United Nations. On April 21, 1948, the United Nations Security Council had called for plebiscite in J&K. If there was no domicile category, the state subject law would have remained the yardstick to determine the electorate for a referendum. Once this new category of domiciles was introduced, it practically replaced the abrogated state subject law with a mechanism to continuously add non-state subjects to J&K’s population.
The aim of this measure is also its intended psychological implication: state subjects in J-K may eventually start seeing themselves as domiciles who are theoretically distinct from the larger body of Indian citizenry. This is exactly why the government has announced the recruitment of ten thousand unemployed youth immediately after the decision and made a domicile certificate a necessary pre-requisite for this process. The idea clearly is to push people to apply for the domicile certificates and thus set the ball rolling. This requirement drive is in fact a drive to practically erase the state subjects on ground and kickstart registration of people as domiciles. The then Governor Satya Pal Malik had announced recruitment of 50 thousand unemployed youth in government in a press conference on August 29, 2019, emphasising that this recruitment process will be completed in “next few months”. Nothing happened. The reason why these vacancies in the government weren’t filled was because they wanted to start this process only after this new domicile category is introduced.
And because the entry into this domicile registry is open, the new entrants will keep on adding and constantly changing the demographic complexion. That way, in theory a separate citizenry of J-K will be intact which would have no meaning and significance in practice on the ground.
Thus, the introduction of the domicile category will eventually erase the concept of original inhabitants or state subjects. The inclusion of non-state subjects as domiciles will be seen as a naturalisation process given that they have to follow a process akin to that for getting citizenship in most modern states across the world.
This piece was first published on the author’s social media page.