Context
- Recently, the Ministry of Home Affairs has promulgated the Jammu and Kashmir Reorganization (Adaptation of State Laws) Order, 2020, which comes into force with immediate effect.
- It defines “domiciles” in the new Union Territory (UT) of Jammu and Kashmir for protecting jobs in the Group D category and entry-level non-gazetted posts for the domiciles.
What is domicile?
In law, domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction.
Background
- On 6th August 2019, the Centre revoked J&K’s special status under Article 370 and Article 35A of the Constitution and bifurcated it into the UTs of J&K and Ladakh.
- The two revoked constitutional provisions let the state legislature decide the ‘permanent residents’, prohibiting a non-J&K resident from buying property there and ensuring job reservation for its residents.
Who were the permanent residents in J&K?
- The law, introduced in 1954, empowered state governments to define “permanent residents” of Jammu and Kashmir and reserve for them certain rights and privileges.
- Till August last year, the term permanent resident covered those who were state subjects of Jammu and Kashmir in 1954 and their descendants.
- It also included those who had lived and owned land in Jammu and Kashmir for at least 10 years in 1954.
- Various rights, such as the right to own land in Jammu and Kashmir, hold government jobs and get state scholarships, were restricted to these permanent residents.
Key Highlights of Order
- The order has amended 109 laws and repealed 29 laws of the erstwhile State and inserted the ‘domicile’ clause in the J&K Civil Services (Decentralisation and Recruitment) Act, 2010.
- The clause for ‘permanent resident of the State’ under the 2010 Act has been substituted by ‘Domicile’ of the UT.
- The Act pertained to employment in the civil services comprising “district, divisional and State” cadre posts.
- Only permanent residents of J&K were eligible to apply for the gazetted and non-gazetted posts but now non-domiciles can also apply for these posts.
Criteria for Domiciles
Satisfying any of the criteria mentioned below, a person would be deemed as a domicile of the UT of Jammu and Kashmir:
- A person who has resided for a period of 15 years in the UT of J&K or
- A person who 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
- Someone who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants)
- Children of Central government officials, All India Services, PSUs, autonomous body of Centre, Public Sector Banks, officials of statutory bodies, Central Universities, recognised research institutes of Centre who have served in J&K for a total period of 10 years
- Children of such residents of J&K who reside outside J&K in connection with their employment or business or other professional or vocational reasons but their parents fulfil any of the conditions provided
Job criteria for new domiciles
- The domiciles will be eligible for the purposes of appointment to any post carrying a pay scale of not more than Level 4.
- The Level 4 post comprises positions such as gardeners, barbers, office peons and waterman and the highest rank in the category is that of a junior assistant.
- The reservation for domiciles would not apply to Group A and Group B posts, and like other UTs, recruitment would be done by the UPSC.
Other amendments
- The order has also made amendments to the Public Safety Act (PSA) 1978 by removing a clause that prohibited J&K residents booked under the Act to be lodged in jails outside.
- It changes the criteria for appointing the PSA advisory board on the recommendation of a search committee headed by the Chief Secretary instead of the Chief Justice of the J&K High Court.
- The advisory board has a crucial role to play in release of detenus under the PSA.
- It also bars sitting High Court judges to be made part of the board without the Chief justice’s consultation.
- The order also scraps a clause that deals with the power to regulate place and conditions of detention.
Why was such an order made?
- The J&K since decades had been unchartered territory for rest of the Indian nationals.
- A wide section of Indians was against reservation in centrally filled jobs being limited only to the J&K residents.
- They felt that by imposing reservation, it would mean a replay of the conditions that existed when Article 35A was in force.
Issues with the decision
1) Real estate misuse
- Commercialization of land for real estate purposes is the most possible threat.
- The government needs to take a measured view of the domicile issue for the purpose of purchase of land.
2) Job losses for locals
- The main objection of residents is the new definition of domiciles would pave the way for non-local residents encroaching over jobs and land.
- Following the order, the youth of Jammu have realized the Centre’s decision will reduce their chances at availing top government posts in the union territory.
- This would result in more competition and lesser chances of erstwhile permanent citizens securing employment in the state.
3) Land encroachment
- The order also amended the J&K Property Rights to Slum Dwellers Act.
- References to “permanent residents” were deleted from the law, making it easier for non-local slum dwellers to gain property rights in Jammu and Kashmir.
4) Hasty decision
- The order reflects a casual exercise carried out at the bureaucratic level without taking the aspirations and expectations of people into consideration.
- At a time when all efforts & attention are focused on the COVID outbreak, the government slipped in a new domicile law for J&K.
6) Political apathy
- The haste for domicile law is widely considered inappropriate and insensitive.
- It is perceived as “an insult upon injury” since the abrogation of article 370 was carried on a promising note.
Conclusion
- Considering the high levels of hostilities and trust deficit in the Kashmiri population, the hasteful promulgation of domicile order is questionable.
- Given this, there is a high chance of Jammu and Ladakh becoming the prime focus for people from different parts of India to buy land and settle.
- This will bring about considerable economic activity, but the locals here will have to not only offer better space but also equal opportunity to participate in work.
- This could potentially marginalize the locals once the settlers arrive which can modify their ways of life.
Way forward
- It remains to be seen how various political outfits of J&K will navigate themselves in the midst of the new political and administrative realities that have taken shape since last year.
- All mainstream political parties of Kashmir has already stated by way of the ‘Gupkar declaration’ that any tinkering with the special status of J&K would be considered an act of war against its people.
- All political parties and people from civil society must be taken on board to achieve the larger good of the inhabitants of UT & nation both.
- Those affected most by the law should be consulted with immediate actions.
References
https://www.civilsdaily.com/news/jk-reorganization-adaptation-of-state-laws-order-2020/
