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Srinagar: Any tehsildar in Jammu and Kashmir, which cannot issue a certificate of residence of the applicants in the time may attract the punishment of having to give up 50,000 rupees of his salary.
The new set of rules called the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020, issued by the administration in the Union Territory of Jammu and Kashmir on Monday to define who was qualified to be a competent authority for the issuance of such certificate, the period within which the address may be issued and also, surprisingly, the punishment awarded to the concerned official who fails to finish the home in time.
The order has come just a month after the central government redefined the Inherited State, without prejudice to the laws in the territory of the Union, prompting fears of an accelerated pace in which the non-local that will be installed in Kashmir, which complicates the nature of the conflict and to undermine the demographic composition of the UT.
The rules also reaffirm who can apply for a certificate of domicile.
According to the order, persons who have resided in J&K for 15 years or have studied it for seven years, appeared in the examinations of class 10 or 12 may be eligible for the award of a certificate of domicile. The eligibility also extends to the West Pakistan refugees registered as migrants in the former state of the Relief and Rehabilitation Commission.
“The new law is a big departure from the previous position of the law, under Article 35 bis of the constitution of India and Section 6 of J&K of the constitution which empowers the J&K assembly to define a permanent resident of Jammu & Kashmir,” said Mirza Saaib Beg, a Kashmiri lawyer in the School Blavatnik of Government at the University of Oxford.
“A permanent resident has been replaced with “residence” with retroactive effect. It is legally questionable whether such a power exists in the Law itself. New classes of people have been eligible for the residence status, including migrants, central government employees of India staff of the armed forces and their children who meet the eligibility criteria.”
The new rules, have authorized a tehsildar the issuance of such certificate in the majority of cases, and the Relief and Rehabilitation Commissioner in the case of migrants. There are provisions for the appointment of senior officials of the categories of applications expand. The applicant can also send the request and receive the certificate electronically.
Experts say that previously domicile certificates issued by the officials of the level of commissioners and it was to pass through a labyrinth of procedures and shuffling back and forth between the many offices. In that sense, it is feared, the new rules are intended to circumvent the byzantine bureaucracy and provide an accelerated path towards the acquisition of the residence for non-local.
“For lack of its inhabitants, it has become easy to obtain the certificate of residence. They just need a mere ration card or a document proving the residence and that can even apply and receive the certificate electronically,” said Muhammad Tahir, who teaches at the school of Law and Government, Dublin city University, Ireland, and specialises in the Kashmir conflict. “On the other hand, one of Kashmir must file Certificate of Permanent Residence, which used to be issued by the DC. To obtain a PRC, it was necessary to submit an affidavit and a series of documents that would take months to prepare.”
The rules also provisions for the filing of an appeal before the appellate authority in case where the domicile certificate is “issued or disapproved” within a period of 15 days. “In addition, that in the event that the applicant succeeds in his appeal, the Appellate Authority directed the competent authority for the issuance of certificate of address within a period of 7 days of work,” the notice, copy of which was seen by The Wire said. In the event that the issuing authority fails, the appellate authority is empowered to “recover an amount of rs 50,000 from the salary of the competent authority.”
“This clause seems to be a defensive move to thwart the resistance of the Kashmiri officials,” Tahir said. “This order, as the revocation of Article 370, it is arbitrary, coercive, and not to serve its inhabitants.”
The experts also said that before, even in developing countries the power to issue such certificates it is assumed that the state of the subject. “The issuance of the authority necessarily had to be the state subjects only,” said Sheikh Showkat Hussain, a noted scholar and legal expert. “If the DC was not a state affair, then an officer below what could be issuing those certificates.”
The new changes will not only present a serious challenge to the demographics of the old regime, but also to expand significantly the access to the resources of the state. The new orders came months after BJP government scrapped a 37 years of age, the law that allows the return of J&K residents who fled to Pakistan from 1947 to 1954, the use of the J and K of the Reorganization Act of 2019.
“The current permanent residents, who already are domiciles of Jammu and Kashmir under a statutorily recognised PRC have to visit their Tehsildar, in the annex of its PRC and obtain a certificate of residence,” Beg said.
“This circular the exercise seems to be a verification of address in the people of Jammu & Kashmir similar to that of an NRC exercise of JK. It is pertinent to add that, in this new agreement there is no space for a diaspora of Kashmir, whose parents do not have to PRC to get home without living in the UT of 15 years. RPC has already been held by courts to be conclusive evidence of residence, but effective, through this new law, a constitutionally recognized PRC now can only serve and probative value by itself is not a conclusive proof of residency. This raises the question of why there is no requirement for people who are already residents of J&K … to prove your residency again?”
The problem of state subject has been a rebel of the matter in the previous state, with enormous implications for the social and political cohesion. The original hereditary state, without prejudice to the rules defined in 1927 by the erstwhile Dogra of the court in response to a constant agitation by The Pandits that they were worried about losing the employment in state service after that the then-state board of administration initiated a series of administrative reforms which include rollover Persian as the official language in 1889 and replace it with the Urdu with which Pandits were not very well versed.
Further reforms including allowing a flow of Punjabi Hindus, who were proficient in Urdu, to fill the ranks of the administration. According to the definition promulgated in the year of 1927, all persons born and resident in the state prior to the beginning of the reign of Maharaja Gulab Singh and also to all the people who settled in it before the opening of the year 1885, and have been permanently residing in the country is considered as the state of the subject.
It was also decreed that “no person who does not fit the bill would be allowed employment in the service of the state, or to the right for the purchase of agricultural land in the state.”
In 1952 India negotiated a complicated truce with Sheikh Abdullah had threatened to resign from the constituent assembly, calling the idea of integration with India, “unrealistic, childish and bordering on insanity” after former PM Jawaharlal Nehru had attempted to, among other things, to expand the jurisdiction of the Comptroller and Auditor General (CAG) of India in the previous state. As a means of getting rid of Abdullah, a little-known modus vivendi called Delhi agreement was signed in which the Hereditary State, without prejudice to the definition of 1927, he was consecrated.
Shakir Mir is a Srinagar-journalist.
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