Saturday, January 23, 2021
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New Domicile law in J&K Unifying or divisive

B L Saraf

Invoking Sec 96 of The J&K Reorganization act 2019 (34 / 2109), Union Ministry of Home Affairs issued. The J&K Reorganization (Adaptation of State laws) Order 2020 and notified it on 31st March, vide S O 1229 E. State Acts numbering 138 have either been amended or repealed. A significant change has been effected in the State service recruitment law, paving way for some persons to enter the State service who hitherto, on account of their nonresident status, weren’t eligible for such an appointment. To facilitate their appointment to the state service, amendments have been made to The J &K Civil Service (Decentralization and Recruitment ) Act 2010 – ( ACT 2010 for short ) In Sec 2 Sub clause c a has been added to provide for the Domiclies: while as newly added Sec 3 A (i) created various categories of the Domiciles – making them eligible for the public employment in J &K.

One of the amendments made to the Sec 3 A of the Act 2010 read, ” no person shall be eligible for appointment to a post carrying a pay scale of not more than Group -4 (Rs 25,500 ) unless he is a domicile of the Union territory of J&K.” No sooner did the Domicile law get released than various circles in the UT – particularly the young – came out in opposition to it. The young called these provisions “draconian” saying that it would “spoil their career as youths from all States and UTs of the country will be eligible to compete for almost 90 % posts in the J K UT.” Almost all political parties in J&K – BJP included -opposed the move. Kashmir centric parties and the Congress, though, opposed the amendments on other grounds also. MHA responded to the public voices and came out with another order to assuage the feelings of youth. Accordingly, The J &K Reorganization (Adaptation of State laws) 2ND Order 2020 was issued on 3rd April, vide SO 1245 ( E ). Consequently, some amendments were omitted and in Sec 5 A words ” Any post ” were substituted ” for a post carrying a pay scale of not more than Level-4 ( 25,500).”

While as some concerns of the youth may have been addressed but fundamental questions, raised, remain unanswered. There is a sociological and legal context to the matter. Broadly, domicile can be either by origin or by choice. The hereditary state subjects are domicile by origin – by birth – while as domicile by choice is outcome of a preference. New regime of domicile may have placed latter on par with the former to derive some benefits but it shouldn’t mean undoing of the principle of ” domicile of origin.” Questions are : Whether residential status of the original residents of J & K ( holders of PRCs ) has been altered as to fall in a new categorization as contemplated by Sec 3 A (I) ; have all of us to get Domicile Certificate (DC ) for securing resident status in the UT to derive state employment and other benefits and more, importantly has amended Sec 6 (1 ) clause ( I ) of Act 2010 made D C a necessary substitute of, now redundant, Permanent Resident Certificate (PRC ) ?

We need to know whether, with PRC having become defunct, the original residents stand denuded of their residential status in J&K, requiring them to obtain a new certification to reassert the status ? Could Domicile of Origin be obliterated or extinguished? And how absurd will it look when a hereditary state Subject of Jammu & Kashmir is made to stand in the line with a person of just 15 years residence claim to get the DC. And, what will be the cutoff date to calculate the 15 years period. The Domicile law can’t be enabling for some and disabling for the hereditary residents.
Situation, indeed, has turned murky for the displaced persons of Kashmir and those who, in identical situation, had to leave their home in some areas of Jammu province and take refuge elsewhere in the region.

Among others, the D Ps of Kashmir and similarly situated persons of other parts of Jammu province too have been cast in the Domicile category. Section3A 1 (b) provides : ” Anyone who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants ) will also be deemed to be a domicile.”

It is important to note that at the time of registration of the internally displaced persons from the Valley, in 1989, the word ” Migrant ” (inappropriately coined ) didn’t have a statutory definition. The word got post facto definition from the legislations made later. Sec 2 (e) and Sec 2 (C), respectively, of J & K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales ) Act, 1997 and The J & K Migrants ( Stay of Proceedings Act) 1997 say :

“Migrant ” means any person who has migrated from Kashmir Valley or any other part of the State after 1st November, 1989 and is registered as such with the Relief Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office, or having left the Valley or any part of the State in pursuit of occupation,or vocation or otherwise, and is possessed of immovable property at the place from where he has migrated but is unable to ordinarily reside there due to the disturbed conditions.”

As the scene will unfold in the aftermath of S O 1229 E, an anomalous situation is likely to arise. Kashmiri Hindus will stand divided into two or more categories – one relied upon by the Relief Commissioner and recognized by Sec 3 A 1 (b) Of Act 2010, and the other contemplated by above referred law. And then a third category of those Hindus will emerge who have not moved out of the Valley and continue to live there – neither registered by the Relief Commissioner nor covered by Sec 3 A 1 (b ).

Sociologists and the Constitutional experts may debate the matter. The interest of the local has to be protected. It is better to have one specific, concise and well thought out piece of legislation to take care of the issue, rather go on amending every law to accommodate the ‘new domicile ‘. Here, political and constitutional scenario is in the realm of uncertainty. Things should settle down soon. It makes no sense to rush every time to MHA for a clarification.

(The author is a Former Principal District & Sessions Judge. Feedback- [email protected] )

(Disclaimer: The views, observations and opinions expressed in above write up of Scoop News are strictly author's own. Scoop News does not take any onus or liability for the veracity, accuracy, validity, completeness, suitability of any of information in the above given write up. The information, facts or figures appearing in the write up in no way manifest the position, standpoint or stance of Scoop News and the Scoop News does not assume any encumbrance or answerability of the same. All disputes are subject to the exclusive jurisdiction of competent Courts and Forums in Jammu City Only)

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