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| Domicile Certificate Rules and The Fresh Migrant Registration | |
B L Saraf
In order to operationalize The Jammu and Kashmir ( Adaptation of State laws ) Second Order 2020 dated 3rd April , so for as it provides for the Domicile Category in the J &K Civil Service (Decentralization and Recruitment ) Act 2020 - Shortly Act 2010 , the Government has notified J &K Domicile Certificate (Procedure ) Rules 2010 , vide SO NO 166 of 18TH May 2020 ( NO 166 shortly ) .
We are given to understand that domicile law has come into being for the protection of interests of the locals , so far as they relate to public employment and agricultural holdings . The fear was expressed in view of the Constitutional developments of August the 5th , 2019 which left field open for the non state subjects to enter in . The law indeed is a welcome development . But it must live up to purpose –which , primarily , is the protect the local interests , and at the same time make some allowance for the outsiders . The law should not be an instrument of harassment for the locals - certainly it can’t be enabling for the new entrants to the UT and disabling for the hereditary residents . Unfortunately , as laid out , the laws gives such an impression .
How ironic –if not absurd will it look when a Hereditary state subject of J & K – with hundreds of years residence claim - is in a queue alongside a person of just 15 years residence standing to seek a Domicile Certificate ( DC shortly ) ?
Clause 5 of SO 166 , in a given table , prescribes class of persons eligible for a D C and the documents they have to submit in support of the claim . Under Serial No 1 Permanent Resident Certificate Holder is also required to submit an application before TEHSIDAR for obtaining the DC . The document he has to produce in support of the claim is the Permanent Resident Certificate ( PRC For short) . It is a case of PRC proving a PRC . One shudders to think how the scheme will unfold when put to the practice . All most whole population of the UT will be in a line to get a DC . Just visualize the enormity of the exercise that has to be undertaken and the astronomical cost that will be incurred ! Not to speak of many man hours that will be consumed in the “ duplicating exercise .” Given the bureaucratic way of dealing with the files , surely , it will be nightmarish for a common applicant to sail through .
There is a simple solution to the problem . Government may issues one line order , that : the PRCs held by the holders shall , ipso facto , be deemed as DC s , with no fresh endorsement required .
It is worth appreciating that the government has taken note of the concerns of the Internal Displaced Persons of Kashmir ( inappropriately called as Migrants ) and tried to address them . How we wish something more , as desired , had been done ! . Their concern was with respect to the creation of a Domicile Category of only those Kashmri Hindus who , consequent upon their forced displacement in 1990 for the reasons well known , were registered as Migrants with the Relief and Rehabilitation Commissioner ( Migrants ) Jammu ( R C shortly ) . Purportedly , to address those concerns the Government has issued Order No ; 52- JK ( DMRRR ) of 2020 , ( No 52 Shortly ) . The Order opens a door for the fresh registration of “ bonafide “ Migrants or displaced persons , enabling them to have a domicile certificate . Section 3 A (1) (b ) of Act 2010 has created a domicile category for those migrants who are registered with the R C . It was felt that most of the genuine persons got left behind who , in similar circumstances, had to leave the home and hearth ; and , for variety of reasons , could not be registered with the RC . So , their inclusion in the domicile category was sought .
As discussed through these columns ,an anomalous situation had risen because as per the above referred law only those displaced person would be eligible for DC who happened to be registered with the RC . This position went against the letter and spirit of the definition ‘ Migrant ‘ has under Section 2 ( e ) of The Jammu And Kashmir Migrant Immovable Property (Preservation , Protection And Restraint On Distress SALES ) Act ,1997 . If other conditions are satisfied , the definition is not dependent on the registration with RC .One can be a ‘Migrant ‘ without such registration . We had made this position clear in the earlier column . It is good that the government has appreciated the plea and come up with Order No 52 which is an effort to synchronize the definition of a ‘ Migrant’.
However , the Order has left much to be desired . Towards the end of clause 2 ) it has been emphasized “that purpose of the registration is for getting Domicile Certificate only .” If tomorrow such domicile clause is added to other laws -especially those pertaining to the land and other immovable property , as possibility is , the exercise will have to be undergone de nova . Remember Order 52 has a genesis in Act 2010 , as amended , which is available only for appointment to the public service in UT .Because ,so far Domicile provision has made in Act 2010 , only .And once a Displaced Person is granted DC by availing Order 52 his registration with RC will lapse . This registration is co-terminus with the issue of DC . It won’t be available for him to claim any benefit which a normal registered migrant may be deserving . It would have been better had no such limitation been placed on the new registration : because there are hundreds of genuine migrants who suffer for want of such a registration . The matter needs a rethink to address real demand of the left over migrants .
In the first place there was no need for creating a Migrant Domicile category: for the reason that the enforced displacement of a person from his native place can never mean his giving up the claim of his original residence . For all legal and moral purposes he continues to be the original resident of the place he was forced to abandon , temporarily l . This position stands well recognized by the state when it issued ARZI - temporary ration card to the registered migrants , in 1990 .
UT requires one concise , specific and well thought out Domicile law which will take care of all emerging contingencies : the law that does not make a Permanent Resident Certificate Holder run from pillar to post .
(The author is a Former Principal District & Sessions Judge. Feedback- [email protected] )
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