Examining the legal implications of the new domicile laws and what that may mean for the people of Jammu and Kashmir seems to indicate that negative perceptions of India in the Valley may only be furthered and not mitigated.
The Jammu and Kashmir domicile rule issued by the central government has come under severe criticism within the region and beyond. Recent news reports suggest that an IAS officer from Bihar including 25,000 other individuals have so far received the domicile certificates which allows entry of nonresidents (defined by the now revoked Article 35A) into the state along with giving them access to the property and government jobs that were previously reserved for locals.
The new domicile which replaced Article 35A was issued amidst the raging Covid-19 pandemic. Outright condemnations from all political parties barring the BJP as well as heavy discontentment and cries of foul play by a cross-section of the local populace led to an immediate amendment of the initial order which reserved only class fourth jobs for the residents of Jammu and Kashmir. The amendment showed how callously the initial order was brought in without consultation or serious thinking from the political leadership in New Delhi. Moreover, it triggered conversations around a possible demographic change being engineered by the central government. Irrespective of the government’s intentions, there is a unanimous belief among the people of the Valley and parts of Jammu that the change in the demography of Jammu and Kashmir has begun.
Apart from criticism on the dubious intentions of the government, the domicile rule in itself seems to be an affront on constitutional practices applied in other (such as the Northeastern states). Drawing a comparison to the previous domicile laws, the new rules have no constitutional backing and can easily be revoked through an executive order. Moreover, the new domicile law may not hold water once the elections are held, and a new legislative assembly is elected given the political opposition it has faced from the regional parties.
The need for implementation of the new domicile law arose after the constitutional changes which abrogated Article 35A came into effect. A vehement demand from the people of Jammu, the party leadership of BJP and other regional leaders, who were ready to play ball with the central government while former chief ministers, and state legislators remained under detention perhaps resulted in the new arrangement.
In the backdrop of redefining hereditary state subject laws in Kashmir, the new grounds for getting domicile for non-diasporic Kashmiris are bound to raise tensions among locals due to the perceived ease of access. According to the order, individuals residing in the state for a minimum period of 15 years; worked for the government in Jammu and Kashmir for at least 10 years; studied in the state for at least seven years and appeared for a board examination are eligible for domicile certificate. According to the new guidelines, children of those who worked or studied in the Valley for the stipulated period are also eligible for domicile even if they have never been to or lived in the state.
Moreover, the punitive measures in place to ensure the fast-tracking of domicile certificates for non-residents at a time when the country is grappling with a pandemic also raises fears about the uncharacteristic sense of urgency displayed by the Centre to implement these new guidelines. To ensure fast-tracking, the tehsildar in charge shall face up to a 50,000-rupee fine if he/she fails to issue domicile within 15 days of receiving the duly completed application.
In addition to the ease of access to domiciles and the possibility of numerous non-diasporic Kashmiris getting permanent residency, the privileges that people can avail with these certificates are bound to further anxieties in the already disenfranchised local population. Those with these certificates can own property in Kashmir and get access to government jobs that were earlier reserved for locals. For a state with an unemployment rate of 15.89 percent in comparison to the national average of 6.87 percent — of which 25.2 percent are graduates and 59.5 percent jobless women — the new domicile laws will only aggravate the problem to an unimaginable level.
The fears amongst locals regarding losing reservation for government jobs are further emboldened by the compromised schooling system in Kashmir on account of longstanding conflict which in turn has impacted the holistic development of Kashmiri youth. With government jobs now opening to other demographics, any competitive advantage the local youth may have had is gone. There is a fear among the youth in J&K that they will have an unfair disadvantage while competing with applicants from the rest of India as for the last three decades the education has been the worst hit with continuous strikes, agitation, violence, and militancy. The conflict has adversely affected Kashmiri lives and practically destroyed any semblance of a thriving private sector. Thus, reservations in government jobs were even more important and with these reservations now removed, fear of losing out to more qualified Indians who have been unaffected by the collaterals of conflict is looming.
The rationale employed for the revocation of Article 370 was that it would forge greater integration of the state with the rest of India and such integration would have a positive impact on overall economic development. However, the heavy-handed use of security measures to impose an unprecedented, vicious and polarised political rhetoric and measures such as large-scale internet shutdowns which can be deemed as collective punishment to implement revocation exacerbated existing fault lines and has made the goal of integration of hearts and minds of locals harder to realise even as the legal and political integration was bulldosed through.
In the context of this growing disaffection furthered by the revocation; the new domicile laws may only reiterate existing fears in the Kashmiri populace of a looming demographic change. Moreover, implementing this policy during a global pandemic raises doubts about the motives of the dispensation and makes one wonder if more sensitivity for the plight of the conflict-ridden state could have been displayed. Examining the legal implications of the new domicile laws and what that may mean for the people of Jammu and Kashmir seems to indicate that negative perceptions of India in the Valley may only be furthered and not mitigated.
Even if public perceptions may be to the contrary, there is no doubt that the change in domicile law is being positioned as a humanitarian gesture to appease a section of West Pakistan refugees, members of Valmiki community and women who married nonresidents as the hereditary domicile law made it impossible for them to get the domicile status. However, due to political mismanagement by previous governments and the severity of Article 35A, they were disenfranchised and had to suffer for decades. Unfortunately, a policy meant to make amends for previous wrong doings seems to be coming at the cost of undermining the wishes of the current majority population in Kashmir who fear the imminent threat of demographic change. Thus, even if the rationale of providing domicile may pertain to undoing past wrongs, the means employed and the socio-political climate in which the policy is being implemented may heighten feelings of alienation amongst locals and pose impediments to the goal of forging integration and long lasting peace in the Valley.
Amidst all these concerns and skepticism about the hidden agenda of the new domicile rules , the domicile certificate of the IAS officer Naveen Chaudhary, who was born and brought up in Bihar’s Darbhanga, which went viral on social media emboldens this skepticism and is indicative of the dangerous utilisation of the Kashmir situation by the BJP to win elections elsewhere and fulfill its own domestic political ambitions. After all, why would the domicile certificate, among the 25,000 others — of an officer from Bihar, which is slated to elect a new legislative assembly in October 2020 — be selectively leaked and celebrated by the national media?
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Khalid Shah was an Associate Fellow at ORF. His research focuses on Kashmir conflict Pakistan and terrorism.Read More +
Prithvi Iyer was a Research Assistant at Observer Research Foundation Mumbai. His research interests include understanding the mental health implications of political conflict the role ...Read More +