New Domicile Rules in J&K: Undoing the Sins and Inhuman Impact of Article-370

The Government Order-52 of the Jammu & Kashmir Government, issued on May 16, 2020, has undone one of the most shameful, inhuman and immoral sets of laws which have been in practice for nearly seven decades in Jammu& Kashmir under cover of now repealed Article-35A and the defanged Article-370 of Indian constitution. Deliberately kept out of public notice and legal scrutiny by a host of vested interests, these draconian laws could find their match only either in Hitler’s Nazi Germany or in some of those fanatic Islamic nations where anything which does not conform to the interpretation of Islam by its fanatic rulers is banned, punished and crushed.

These vested interests included successive governments in J&K and in New Delhi; the Kashmiri politicians; Kashmiri separatists; corrupt bureaucracy; an influential section of indifferent and biased media; self-proclaimed human rights champions and; self-serving opinion-makers in the national and international forums. It goes to the credit of these lobbies that despite repeated appeals, agitations and legal efforts of the victims of Article-35A and 370, their issues were pushed under the carpet so that only one narrative of the separatist movement and criticism of the role of Indian security agencies remained dominant in national and international focus. This Kashmiri narrative has influenced and overwhelmed the national and international psyche so much that many people would find it difficult to believe that such kind of funny and inhuman laws have governed millions of citizens of J&K over past seven decades. Just a few examples:

Even when the son or daughter of a Balmiki (a Scheduled Caste community, engaged in sweeping), settled in the State of J&K for past three generations, acquires a medical doctor or MBA degree from any university, he or she cannot apply for any State Government job other than a ‘Bhangi’ (a street sweeper or a latrine cleaner). For decades the residence certificate of every child born in this community has been marked with the stamp that said that he was entitled only for a ‘Bhangi’s job’.

In Hitler’s Nazi Germany too, each Jew German citizen was obliged to wear a card around his neck, announcing that he was a Jew. Children of this Balmiki community are forced to go to other states for higher studies because laws under Articles-35A and 370 had branded them as ‘non State Subjects’ and hence banned from getting admission in any state-run educational institution of higher learning education in J&K. Because of this stateless status, they cannot own a house or land in the State for the purpose of farming.

Hindu and Sikh Refugees of Partition from Pakistani Punjab, who crossed over to adjoining Jammu and are living there since 1947, too are cursed to live the same third rate citizens’ life like the Balmikis of J&K. In the heat of communal violence which marked the division of India and creation of Pakistan, these Punjabis from the Sialkot region of Pakistan crossed over to neighbouring Jammu because it was too risky for them to traverse through the entire length of Pakistani Punjab to reach Indian Punjab. Most of them were settled in temporary refugee camps spread over the region between the Line of Control (LOC) and Jammu and are now branded as ‘West Pakistan Refugees’ (WPR).

Interestingly, refugees from Pakistani Punjab and East Pakistan were rehabilitated in various parts of India through the Indian government’s support in housing, food, employment and education. The government of India also compensated them for their lost properties in the Pakistani part of undivided India. But the WPRs of Jammu still remain unsettled and unwanted in the State with practically no support. Not even a legal status. As ‘Indian Citizens’ they can participate and vote in elections for the Lok Sabha, the Lower House of Indian Parliament, but they have no rights to contest or even vote in any state elections, be it for the State Assembly, local civic bodies, Panchayats or not even in local cooperative societies. Just to underline this contrast, two other Punjabis, namely Dr Manmohan Singh and Inder Kumar Gujral, who also hailed from the same region of Sialkot but had migrated to Indian part of Punjab, eventually became Prime Ministers of India.

Many families among WPRs belong to the SC and Other Backward Castes (OBC) but unlike their counterparts in the rest of India, they don’t enjoy any reservation in matters related to jobs or higher education.

Rather, the regulations under Articles-35A and 370 permanently barred them from seeking admission in state-run institutions of higher education or employment in any government or semi-government establishment. They cannot enjoy any social or financial benefits provided under various Central social welfare schemes of SCs or OBCs. For example, they are not entitled to own a house under Centre’s Indira Awas Yojna, which is meant for poor Indian citizens.

J&K is home to a substantial number of descendants of those Gorkha soldiers who had served in the army of erstwhile Maharaja of J&K since 1840. But laws adopted by the State government over the years under Articles-35A and 370 have ensured that these citizens of J&K are not given ‘State Subject’ status and hence deprived of fundamental rights of higher education, employment and land ownership despite living there for past eight or nine generations. Like the Balmikis and WPRs they too have no role the in the democratic electoral system of the State.

Article-35A has been far crueller to the daughters of J&K as it encouraged the J&K Assembly to pass a law which barred any daughter of J&K from marrying to an outsider. If a woman did so, the law took away her citizenship rights which meant that she would lose her job if she was employed in a State Government school or any other establishment. It also not only barred her husband from getting the rights due to a ‘State Subject’ but even took away their children’s entitlement to her share of her ancestral property. When a Jammu woman later challenged this law with the help of an NGO ‘We The Citizens’ the J&K High Court struck down this law as illegal in 2002. The State Assembly later did amend this law in 2004 but it only restored the woman’s rights as citizens of the State while keeping her husband and children deprived of these rights.

Yet another targeted victim of Articles-35A and 370 have been J&K’s refugee communities who were forced to vacate their ancestral homes in those parts of the State which were occupied by Pakistan following its attack in October 1947. This region is now known as ‘Pakistan Occupied Jammu & Kashmir’ (POJK) in India and as ‘Azad Kashmir’ in Pakistan. Although Gilgit and Baltistan regions of erstwhile State of J&K too were annexed by Pakistan in this armed attack, almost all of these refugees belonged to the Hindu and Sikh communities of Muzaffarabad, Mirpur, Jhangad, Kotli, Alibeg, Dev Batala etc.

A major chunk of those refugees who survived this agony and reached Jammu were later forcibly diverted to neighbouring Punjab and other parts of India by the State government on the plea that it did not have enough resources to look after or rehabilitate them. In the light of communally charged policies and indifferent conduct of Sheikh Abdullah lead State machinery, the process of their shifting from Jammu to other parts of India continued over the years. A gigantic campaign run by the Centre to rehabilitate the victims of Partition also encouraged these POJK refugees to opt for leaving their home state and settle in other parts of India. Only a fraction of this community chose to settle within the State. Most of the others did not even wait to get themselves registered with an inefficient and indifferent State administration and migrated to other parts of India.

The problems of this POJK community have further multiplied due to the joint impact of the State government’s obvious communal agenda and the Centre’s indecisiveness on matters related to POJK. The State governments have consistently refused to give this group the status of a ‘refugee’ community on the flimsy ground that the official Indian map shows POJK as ‘integral’ part of India. On the other hand, the Centre, who formally rehabilitated refugees from West Pakistan and East Pakistan and gave financial compensation for the property they left behind in Pakistan, refused to settle similar claims for the POJK community for the fear that this will weaken India’s claim over POJK. For the same reason, the Centre did not allow POJK refugees to accept land compensation claims from World Bank for their lands submerged in the WB financed Mangla Dam in Mirpur.

Today these refugees are spread over as far and varied places like Delhi, Mumbai, Bhopal, Chandigarh, Pathankot, Patiala, Rohtak, Meerut, Varanasi, Guwahati. Over the years many among them have migrated to countries in North America, Europe, Australia etc. Recent Order-52 of the J&K government has come as a great relief to this community of POJK refugees for more than one reasons. The order has opened doors of hope for those members of this community and their descendants who hold proof of registration as migrants from POJK with the central government or other official agencies. Unfortunately, they were denied any hearing by all successive State governments of J&K who had evolved a hue of rules and reasons to turn down their requests to be treated as ‘State Subject’ or ‘Citizen’ of J&K. The POJK community has been alleging a strong communal bias behind this attitude of J&K Government. They refer to State government’s decision to give full citizenship rights to all those Muslim refugees from Xinjiang and Tibet, who had settled in Kashmir following the occupation of their respective countries by China in 1949 and 1951-1959.

This agony of POJK refugee community is also reflected in the composition of the J&K Assembly. The Assembly has 111 seats out of which 24 are kept permanently vacant on the ground that these will be filled when these Pakistani occupied areas return to India. This provision ensures an absolution control of the State Assembly in the hands of Kashmir Valley which enjoys 46 seats out of the functional 87 seats. Of the remaining 41 seats, Jammu has 37 and Ladakh has 4. In the ongoing exercise of fresh delimitation of J&K Assembly, the POJK refugees are demanding that the vacant seats of the Assembly will be filled with POJK representatives. This, if accepted, is bound to take away the extra-constitutional privileges enjoyed by the Valley politicians and their co-travellers who benefited in every way due to this constitutional aberration for the past seven decades.

The State of J&K has yet another unique community of permanently displaced persons from border areas along the LOC due to consistent bomb shelling from Pakistan. Frustrated with inadequate rehabilitation from the state government and with no hopes of getting back control of their homes and farmlands, a large number of them have eventually migrated to other parts of India. As a result, their descendants today remain deprived of their citizenship rights in the State because of complex rules and a corrupt bureaucracy. Order-52 is also going to bring a new lease of life to the hopes of descendants of such Kashmiri Pandits, Sikhs and Dogras who had migrated to other states for professional and other reasons much before the unrest overwhelmed Kashmir Valley.

Order-52 is also going to save the State of J&K from remaining branded as the most thankless and inhuman host to that community of officers and government servants who put their entire life in the service of the people of J&K. For over past six decades any IAS, IPS or other senior civil servants who served all along with their career in J&K amidst most difficult situations, were supposed to pick up their personal belongings and quit J&K for their respective home states after their retirement. Their children too could neither take admission in the State Government-run senior institutions nor apply for government jobs. The same fate was thrust upon families of employees of the Central government, PSUs, nationalised banks, national scientific organisations, Central universities and other national institutes.

In one stroke of rehabilitating civic rights of all such citizens of J&K, the Order-52 has offered a fresh chance for such people to apply for Domicile Certificate of J&K. This list includes all those employees who have put ten years of service in J&K, their children who studied there for seven years and appeared in 11th and 12th exam, as well as all those ordinary people who have lived in the State for 15 years.

More than delivering justice to the perpetual victims of the inhuman impact of Articles-35A and 370, this Oder-52 is going to give a new lease of life to the people and culture of J&K. Especially to the present two generations of Kashmiris who were denied their right to live in peace and a multicultural environment which is essential for the healthy and natural growth of any society.