[WSMDiscuss] Following the Israeli Model? 'J&K's New Domicile Order: Disenfranchising Kashmiris, One Step at a Time'

[Sukla Sen]

[Just to recall, the perennially troubled state of Jammu & Kashmir - that
falls within the Indian territory, was put under an unprecedented
"lockdown" on August 4/5 midnight - as the prelude to an utterly shocking
downgrading of its constitutional status, within India, to be followed up
by its dismemberment - over the pretty brief span of the immediately
following two days, has since been, to a significant extent, diluted but,
definitely, not done away with.

*The analytical comment, by a Kashmiri scholar stationed abroad, reproduced
below is, arguably, a very useful guide to comprehend and anticipate the
moves of the Indian state vis-a-vis the residual J&K and its original
inhabitants.*
*Especially, in view of the fact that since the imposition of the lockdown
there has been no large-scale military operation by the Indian military -
despite its massive presence on the streets, nor any major armed action -
beyond the routine ones, by the militants and/or any outbreak of an
intifida.*

For a rather handy account of the immediate backdrop of the latest move,
(rather perfunctorily) stretching back to antiquity but specifically
focusing on the present day turbulence and its origins, one may look up: <
https://countercurrents.org/2020/03/kashmir-trapped-in-a-blind-alley/>.

The new ‘domicile’ rules are a major departure from an established body of
historical precedent, law and jurisprudence. This position was guaranteed
to Kashmiris under the Delhi Agreement of 1952, the Presidential Order of
1954, Article 35A of the constitution of India and Part III Section 6 of
the constitution of Jammu and Kashmir.

These instruments and articles recognised the right of Jammu and Kashmir to
define its citizens, known as “permanent residents” or popularly called
“state-subjects” based on a 1927 notification by the erstwhile king of
Jammu and Kashmir. 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 people, including
migrants, Central government employees, Indian armed forces personnel and
their children who meet the eligibility criteria.
...
Despite the Indian state being overwhelmed with the economic collapse,
migrant labour crisis and COVID-19 pandemic, the desire to subdue the
Kashmiris has been funnelled with astringent and virulent zeal. It drives
home the message to the people of Kashmir that nothing, not even a medical
emergency, can prevent the Indian state from doing what it wants to do in
J&K.

The rules do not merely grant people from all parts of India a right of
residence in Kashmir. They also engineer a situation where Kashmiris must
submit a certificate of permanent residence for verification of domicile if
Kashmiris want the jobs where a domicile certificate is now required.


(Excerpted from below.)]

https://thewire.in/rights/kashmir-domicile-law

J&K's New Domicile Order: Disenfranchising Kashmiris, One Step at a Time
The changes are an erasure of Kashmir’s history and a project in creating
homogeneity – so that there is no legal difference between a Kashmiri and
someone from any part of India who has lived in Kashmir for a specified
period.

J&K's New Domicile Order: Disenfranchising Kashmiris, One Step at a Time
A Kashmiri woman walks through an empty street in Anchar neighbourhood
during restrictions, in Srinagar, September 20, 2019. Photo: Reuters/Danish
Siddiqui/File Photo

Mirza Saaib Bég

30/MAY/2020

In the absence of any representative government in Jammu and Kashmir, the
Centre has exercised undiluted and direct control in the region through a
bureaucratic administration since June 2018.

Nine months ago, India’s parliament, acting on legislation moved by the
Narendra Modi government, unilaterally terminated Jammu and Kashmir’s
unique constitutional position, ending its autonomous status within the
Indian Union.

Last week, the Jammu and Kashmir 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 people from any part of India. The sense
of urgency to legalise the region’s new status is further underscored in
the new rules since non-compliance with the time frame provided therein
attracts a penalty of Rs. 50,000 from the salary of an errant officer.

The domicile certificate has been made mandatory for employment in Kashmir
following amendments to the Jammu and Kashmir Civil Services rules.
Eligible individuals from any part of India will also be granted the right
to purchase immovable property in J&K, something that has not been possible
till now in J&K and is still not possible in those parts of India governed
by special laws and provisions.

Over the past one year, we have observed a grotesque, euphoric celebration
by a broad cross-section of people across India on the disenfranchisement
and dispossession of Kashmiris through these legislative changes. In
response, Kashmiris have 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, despite the reckless violation of
our rights, and of democracy, by the Indian state.

The new ‘domicile’ rules are a major departure from an established body of
historical precedent, law and jurisprudence. This position was guaranteed
to Kashmiris under the Delhi Agreement of 1952, the Presidential Order of
1954, Article 35A of the constitution of India and Part III Section 6 of
the constitution of Jammu and Kashmir.

Also read: J&K Govt’s New Domicile Certificate Rules a Move to Undercut
Resistance from Kashmiri Officials?

These instruments and articles recognised the right of Jammu and Kashmir to
define its citizens, known as “permanent residents” or popularly called
“state-subjects” based on a 1927 notification by the erstwhile king of
Jammu and Kashmir. 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 people, including
migrants, Central government employees, Indian armed forces personnel and
their children who meet the eligibility criteria.

It is pertinent to add that in this new arrangement, there is 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 from any part of the country 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.

Despite the Indian state being overwhelmed with the economic collapse,
migrant labour crisis and  COVID-19 pandemic, the desire to subdue the
Kashmiris has been funnelled with astringent and virulent zeal. It drives
home the message to the people of Kashmir that nothing, not even a medical
emergency, can prevent the Indian state from doing what it wants to do in
J&K.

The rules do not merely grant people from all parts of India a right of
residence in Kashmir. They also engineer a situation where Kashmiris must
submit a certificate of permanent residence for verification of domicile if
Kashmiris want the jobs where a 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 their involuntary transfer from
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.

Also read: Centre Backtracks, Amends Domicile Order to Reserve Govt Jobs in
J&K for Residents

It is relevant to mention that since 1995, Israel has been escalating the
use of residency revocation as a punitive measure when the Israeli interior
ministry started reinterpreting the 1952 Law of Entry. In 1952 Israel
enacted its own Nationality law and repealed the Palestine Citizenship
Order of 1925.

Israel uses three discriminatory (and illegal) criteria to forcibly
transfer Palestinians:

If they have been living abroad for an extended period.
Based on a 1995 high court judgment, Palestinians need to establish that
their “centre of life” is in Jerusalem in order to maintain residency
rights.
Accused of breaching “allegiance” or “minimum loyalty” to Israel. In 2006,
this provision was first used against four Hamas members elected to the
Palestinian Legislative Council. International humanitarian law explicitly
forbids the occupier, in this case, Israel, from demanding the allegiance
of an occupied population.
The revocation of residency forms part of a widespread and systematic
policy to transfer the protected Palestinian population, and may amount to
a crime against humanity under Article 7 of the Rome Statute, to which
Palestine is a party.

For Kashmir, the new domicile rules are just another reminder that the
Indian government can alter its position at any point to suit the
circumstances. Earlier, Prime Minister Modi had given an assurance to a
delegation of members of a pro-India political group that the 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 prime minister has
even for pro-India politicians, as well as how much he values his own
words. 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
Report had pegged a quarter of J&K’s population between 18 and 29 as
unemployed. The diminution of our rights is set to increase the levels of
unemployment as well as hasten the disenfranchisement of Kashmiris while
setting the stage for demographic changes. With the dilution of their
‘domicile’ status, Kashmiris will find it difficult to obtain work in most
sectors of employment. While the rules are silent on this aspect, there are
fears that through incremental displacement of rights, Kashmiris could also
lose benefits from welfare schemes for food, health care, children, the
elderly and people with disabilities.

Also read: It’s Been 9 Months. What Did the Revocation of J&K’s Special
Status Achieve?

These changes are an erasure of Kashmir’s history as a princely state that
was not under direct British rule, and a project in creating homogeneity –
so that there is no legal difference between a Kashmiri and someone from
any part of India who has lived in Kashmir for a specified period.

Kashmiris were once state-subjects of a princely state. We were then made
permanent residents of an autonomous state within the Indian Union. Today
we are being made ‘domiciles’ of a Union territory, that too, without our
consent. Extrapolating from the developments taking place, it is not hard
to imagine the Kashmiri landscape seeded with predatory militarised
settlements 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 government is neither sensible nor democratic.

Mirza Saaib Bég is a Kashmiri lawyer and an alumnus of NALSAR University of
Law. He is currently pursuing a Master’s in Public Policy at the Blavatnik
School of Government, University of Oxford as a Weidenfeld-Hoffman scholar.
-- 
Peace Is Doable




-- 
Peace Is Doable
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