B L Saraf
These days alphabets “C” and “D” constantly hit the mind . Former for the health devastation it has caused and the latter for denoting terminologies that pervade current discourse. The subject experts tell us that we have to live with the Corona virus . As such the debate on ‘C’ of the COVID -19 stands settled in favor of the Virus-with the saving grace that some adjustments made in the life style may allow our ‘harmonious’ living with the demon. Alphabet “D” lends sonority to the words like “Delimitation”, “Domicile” and “Durbar Move “.
Here is the sample of debate these terminologies have generated;
Durbar Move
COVID 19 has ensured that 2020 Darbar moves to Srinagar in installments. So , we rehear the ritualistic denunciation of this 147 year old practice. It started in 1987 when CM Farooq Abdullah declared that he would dispense with the tradition of bi -annual Darbar move. Rajiv Gandhi lent him support. Both went on to describe the practice a ” retrograde move ” which caused ‘unjustifiable drain on the state exchequer ‘ .
Farooq’s attempt to do away with the bi- annual Darbar move was fought by the people in Jammu region. A peaceful agitation was launched under the leader ship of Bar Association, Jammu which forced the CM to back of. Thereafter, till a year ago it has been a happy life for the annual Darbar move. However, on the eve of this year Durbar move, the COVID 19, infused a new life to the debate. Opinions, pro and against, qua the practice are coming thick and fast.
True, Darbar move involves a huge expenditure. But the benefits in terms of social cohesion, emotional integration and political unity , the shifting of secretariat brings in, some argue, far outweigh the monetary considerations. There is little common between the people living in two provinces of the state- by way of geography, history social fabric and cultural activity. Yet they have been living harmoniously like a one political entity. The practice of bi-annual ‘Drabar move’ has with great degree of success harmonizedthe opposing traits. The exercise beside being a movement of the Capital, constitutes a measure aimed at the emotional integration of two different ethnic people. For the territorial and political integration of Jammu and Kashmir the practice of bi- annual Durbar move has, indeed, proved a boon.
Today, the need of the hour is to transcend geographical and cultural barriers’ : doing away with the shift process will mean an inculpable loss to the composite character . It will result in compartmentalization that shall be incompatible with the national and emotional integration of the people. For those who want disintegration of J&K, the stoppage of the bi -annual practice would come as God send opportunity.
The inconvenience caused by the Darbar shifting can be overcome, partly, by resorting to the E ‘governance mode and, partly, by the devolution of financial and administrative decision process to the lower level. Empowerment of Panchayats and the local bodies could solve the problem to a great extent. Central Secretariat should only devise state plans and take decisions for the effective governess of all regions of J&K, retain pivotal role in macro managing things and ensure administrative and political balance of the UT.
It is painful that a voice to discard the practice of Darbar move should emanate from the land of Dogra Rulers. This is the one gift , among so many, the Dogra Rulers gave us. It has proved an instrument that has imperceptibly and without any clatter cut across the regional and psychological barriers and given people a sense of oneness .
Delimitation
The August 5, 2019 Constitutional changes gave an impression that delimitation of the assembly constituencies in the UT of J &K will get under way soon. It had become necessary in view of the increase in number of assembly constituencies and a provision for reservation of few of them for the S Ts. Nine months on, we hear of some movement on the front. But as the law stands the task will be a tough one. Because glaring anomalies are discernible in Sections 59 , 61 and 63 of the J&K Reorganization Act, 2019 which will render them unworkable .
A joint reading of these sections creates a confusion : whether the elections will be held as per the last delimitation. In that case election can be held only for 83 seats and not 90 as envisaged after the fresh limitation. Another question that comes to the mind is whether state election will have to wait for a countrywide delimitation of the constituencies. The fresh delimitation, as provided by sections 59 – 61 of the Act, would require measurement of the territory and count of the people in each constituency which is to be carried out as per 2011 census . Section 63 of the Act , on the other hand ,makes reference to the first census taken after year 2026.Then there are the concerns of POK refugees and others.
Domicile
MHA, on 31st March issued The J & K Reorganization (Adaptation of State laws) Order 2020 vide SO 1229 E -later amended- which while protecting the rights of the locals made a provision for the non locals to enter the State service. Amendments have been made to The J &K Civil Service (Decentralization and Recruitment) Act 2010 – (Act 2010 for short ) In Sec 2 Sub clause c a has been added to provide for the Domiciles : while as newly added Sec 3 A (i) created various categories of the Domiciles – eligible for public employment in J&K .
As it is, the domicile law has created many problems. It has rewritten the concept of domicile. Domicile can be either by origin or by choice. Hereditary state subjects are domicile by origin – while as domicile by choice is outcome of a preference. The domicile law has blurred the line and almost undid the principle of “domicile of origin.” One must know whether residential status of the original residents of J&K (holders of PRCs) has been obliterated, requiring a new categorization as contemplated by Sec 3 A (I) and have all of us to get Domicile Certificate (DC ) -de nova -for securing resident status in the UT.
How could one say that with PRC having become defunct, the original residents stand denuded of their residential status in J& K , requiring them to obtain a new certification to reassert the status as contemplated by Sec 6 (1) cl ( 1) ? The law can’t be enabling for some and disabling for the hereditary residents.
As discussed earlier through these columns, For the displaced Hindus of Kashmir situation has become confusing. In the new legal scheme they have been cast in the Domicile category. Section 3 A 1 (b) provides : “Anyone who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) will also be deemed to be a domicile.”
Here lies the mischief. Because according to the definition given by Sec 2 (e) of J& K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act , 1997 the displaced Hindu is a “Migrant ” independent of registration with the Relief Commissioner. SO 1229 E has divided Kashmiri Hindus into many categories – one relied upon by the Relief Commissioner and recognized by Sec 3 A 1 (b) Of Act 2010, the other contemplated by above referred law. Third category of those Hindus will emerge who continue to live in Kashmir.
Where is the need to bring in Migrants within the fold of above referred law ? The enforced migration of Kashmiri Hindus from the Valley doesn’t mean his giving up his right to live in Kashmir , as hereditary state subject recognized by law. For all intents and purposes he continues to be a resident of Kashmir.This position is well recognized by the Ration Card issued to him by the Relief Commissioner. It is designated as ” Aarzi ” ‘temporary.
The Domicile law should make it clear that the bonafide state subject of the erstwhile J&K state shall be, ipso facto, deemed to be the Domiciles of UT. The earlier held Permanent Resident Certificate may be treated as Domicile Certificates, requiring no denova official endorsement .
(The author is Former Principal
District & Sessions Judge)
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