In absence of any representative government in Jammu and Kashmir, the Indian government has exercised undiluted and direct control in the region through a bureaucratic administration since 2018. One year ago, the Indian government unilaterally abrogated Article 370 and scrapped the statehood of Jammu and Kashmir, ending the autonomous status of the region. In May this year this administration notified the Jammu and Kashmir Grant of Domicile Certificate (procedure) rules, 2020. These rules provide a fast-track procedure for issuance of Kashmiri domicile certificates, within 15 days, to Indian citizens. The sense of urgency to legalise the occupation of land is further underscored in the new rules since non-compliance with the time frame attracts a penalty  of Rs. 50,000 from the salary of an errant officer.

These rules create new classes of citizens who are now eligible for domicile certificates which are mandatory for admission in schools and employment opportunities in Jammu and Kashmir: Indian citizens who
(a) have resided in Jammu and Kashmir for a period of 15 years, or
(b) have studied in Jammu and Kashmir for a period of 7 years, or
(c) have parents who have served in Jammu and Kashmir for 10 years

The domicile certificate has been made mandatory for employment in Kashmir following amendments in the Jammu and Kashmir Civil Services rules. Eligible Indian citizens will also be granted the right to purchase immovable property in Kashmir.

Departure from Established Law

The new rules are a major departure from an established body of historical precedent, law and jurisprudence which recognised the right of Jammu and Kashmir to define its citizens, known as “permanent residents”. Through the new rules, with retrospective effect, a “permanent resident” has now been replaced with “domicile” even though no instrument has ever granted such power to the Indian government. The rules grant eligibility of domicile to new classes of Indians including migrants, central government employees, Indian armed forces personnel and their children who meet the eligibility criteria. Significantly, there is now no space for a diaspora Kashmiri, whose parents do not have an existing certificate of permanent residence, to obtain domicile without living in the region for 15 years or serving the Indian government for 10 years. Effectively the child of an Indian citizen is eligible, even if the child has never lived in Kashmir, but the child of a diasporic Kashmiri may not be eligible if the parent does not possess an existing certificate of residence.

The Domicile Law project drives home the message to the people of Kashmir that nothing, not even economic collapse, a migrant labour crisis and a pandemic, can prevent the Indian state from doing what it wants to do in Kashmir.

Violation of Geneva Convention

The rules do not merely grant Indians a right of residence in Kashmir. They also engineer a situation where Kashmiris must submit certificate of permanent residence for verification of domicile if Kashmiris want the jobs where domicile certificate is now required. The certificate of permanent residence was a constitutionally valid document and has been held by numerous judgments to be a “conclusive proof of residence”. Under the new rules it merely carries evidentiary value for residence. Therefore, if a Kashmiri fails to meet the new criteria, whether by malice/manipulation or by design of the new rules, the revocation of residency rights will inevitably lead to forcible transfer out of Kashmir in search of shelter and employment. All these initiatives have sparked fears of demographic change, militarised settlements, dispossession and alienation of land in Kashmir. The forcible transfers of population may qualify as a war crime under the Rome Statute of the International Criminal Court as well as a grave breach of the Fourth Geneva Convention. There are unavoidable parallels with Israel which since 1995, has been escalating the use of residency revocation as a punitive measure against Palestinians. The revocation of residency forms part of a widespread and systematic policy to transfer the protected Palestinian population.

Domicile Law and NRC/CAA

The designation of “domicile” is recognition of being a permanent resident in that jurisdiction. Jammu and Kashmir’s Permanent Resident Certificate already establishes this statutory test for residence. Therefore, it makes no sense to ask people who are already recognised as permanent residents to now obtain a certificate of domicile. This appears to be a circular exercise of re-verification of permanent residents in many ways similar to the controversial NRC/CAA exercise which has already seen hundreds of thousands of people being rendered stateless after failing to satisfy the criteria for documentation.

Legislative History

It is ironic how some sections of Kashmiri Pandits have welcomed this legislative development when the existing arrangement of “permanent residents” was initially made because of their agitation and specifically for the protection of their interests. The historical background to the need to make a distinction between permanent and non-permanent residents can be traced back to  decades long agitation by Kashmiri Pandits against the hiring of Punjabis in the state administration, which eventually led to a 1927 law promulgated by Maharaja Hari Singh. The 1927 notification sought to provide certain privileges to permanent residents, especially in the purchase of land and employment in Jammu and Kashmir. Since the Dogras had essentially built a Hindu state where the nature of governance and reform were predominantly Brahmanical, the protection of the law was mostly intended for non-Muslims of the region. Muslims were not part of the popular imagination of reform at the time.

Article 35A and 1954 Presidential Order

In 1954, through a Presidential Order,  Article 35A Article 35(a) in The Constitution Of India 1949 of the Indian Constitution allowed the legislature of the State of Jammu and Kashmir to define the state’s “permanent residents” and what distinguishes them. All identified residents are issued a permanent resident certificate, which entitles them to special benefits related to employment, scholarships and other privileges. But the biggest advantage for permanent residents is that only they have the right to own and, therefore, buy, property in the state. All those who were living in the state as of 14 May 1954, when the law came into effect; and had lived in the state for 10 years preceding that date, were counted as permanent residents.

Section 6 of the Constitution of J&K

When the Constitution of Jammu and Kashmir was passed, Part III Section 6 of this Constitution retained the power to define ‘permanent residents’ with the state. It is important to note that the Constituent Assembly of Jammu and Kashmir was not set up by a sanction of the Indian Constitution or of the Government of India. It was set up by the State itself acting independently of both, under the Maharaja’s Proclamation of May 1, 1951, on the advice of Sheikh Abdullah. There is no provision in the Indian Constitution under which the Constitution of Jammu and Kashmir can cease to exist except with the consent and concurrence of the Constituent Assembly of the state.

Therefore, legally speaking, Section 6 will still apply even if Article 35A ceases to exist because Section 6 does not derive its validity from Article 35A. Also, Article 35A, like Article 370, is the representative of an agreement between the governments of Kashmir and India. Article 370 was the result of the Instrument of Accession and Article 35A represents the Delhi Agreement of 1952 between the leaders of Kashmir and the Prime Minister of India.

What purpose does Article 35A then serve in the Constitution of India when this position is already covered in Section 6 of the Constitution of Jammu and Kashmir? The answer is that Article 35A was meant to guard against a challenge in an Indian court against the protections under the Constitution of Jammu and Kashmir. In that sense, Article 35A was meant to bind India’s legal machinery from interference in a right that the Constitution of Kashmir has retained for the state itself.  

A reminder of deceit

For Kashmir, this is just another reminder that the Indian government can alter its position at any point to suit the circumstances. Prime Minister Modi had given an assurance to a delegation of members of a pro-India political group that interests of J&K residents would be protected in government jobs and land laws. However, by these changes, all eligible Indians can compete against J&K residents for jobs and benefits indicating how much respect the Indian Prime Minister has for pro-India politicians, as well as how much he values his own words.

Effects of the New Domicile Law

While earlier a total of 480,000 government jobs were only for permanent residents, the new law opens the field for any Indian citizen who has been living in the state for a certain period. This is especially disconcerting at a time when the 2016 Economic Survey Report13 had pegged a quarter of J&K’s population between 18 and 29 as unemployed.

According to a reply by India’s Ministry of Home Affairs to a parliamentary panel on February 18, 2020, there are over 84,000 vacancies in J&K of which 7,552 vacancies are at the gazetted level. So effectively there are only 7500 gazetted jobs for a population with 25% unemployment among youth and now they are adding at least 1.5 million people to the competition.

Further, only 30% of land in Kashmir is habitable and fit for cultivation. Already as admitted by the Mehbooba Mufti government, 20,000 hectares of land are under control of the Indian army. So there is very little habitable land to go around for the new domiciles without deforestation in Kashmir. The unplanned influx of Indians from outside Kashmir can cause an irreparable impact on the ecology and livelihood of the people of Kashmir.

The diminution of our rights is set to increase the levels of unemployment14 as well as hasten the disenfranchisement of Kashmiris while engineering demographic changes. Without domicile status, Kashmiris cannot obtain work in most sectors of employment. There are also fears that through incremental displacement of rights, Kashmiris could also lose benefits of welfare schemes for food, health care, children, the elderly and people with disabilities.

An Erasure of Kashmir’s History

These changes are an erasure of Kashmir’s history, and a project in creating homogeneity. Kashmiris were once the State-Subjects of a Princely State. Under questionable circumstances, we were then made Permanent Residents of an autonomous state, pending a plebiscite. Today we are being made domiciles of a Union territory, without our consent. Given the developments taking place it is quite likely that the Kashmiri landscape will be seeded with militarised settlements in a hegemonic fashion, similar to Palestine. The implications can only be calamitous. The threat of demographic change, loss of livelihood and increased competition for scarce resources is bound to electrify an already incensed population. In any sensible democracy this situation would be alarming but authoritarian and xenophobic actions seen over the last year suggest that Modi’s dispensation is neither sensible nor democratic. Kashmiris have long realised that we cannot indulge in the luxury of despair and despondency. We need to, and will continue to, engage in the persistent labour of resistance and hope.

(Mirza Saaib Bég is a Kashmiri lawyer and an alumnus of NALSAR University of Law. He is currently in the UK to pursue a Master’s in Public Policy at the Blavatnik School of Government, University of Oxford as a Weidenfeld- Hoffman scholar. Parts of this article have first appeared in the Wire and the Polis Project.)