Chetan Prabhakar
The Minster of Social Welfare, in reply to question raised by BJP MLA, in the legislative assembly, said that area is not a criterion for ST-II status based on Pahari ethnicity, then, why the Tehsildars have not been issuing Schedule Tribe Certificate under Pahari Ethnic Group category to Displace Persons of Pakistan Occupied Jammu & Kashmir (DPs of POJK), who are settled in Jammu? On filing Appeals as provided under the Jammu and Kashmir Public Services Guarantee Act, 2011, the Deputy Commissioners and the Divisional Commissioner are rejecting the Appeals of DPs of POJK on the ground that no directions have been issued for the issuance of said certificate to persons who have migrated from POJK to Jammu and Kashmir.
The Tehsildars, Deputy Commissioners and the Divisional Commissioner are making it area specific, whereas, the legislature’s intent is to make it ethnicity, cultural and linguistic based. As per Rule 7 of S.O 176 of 2024 dated 15.03.2024, the Schedule Tribe Certificate under Pahari Ethnic Groupis to be issued on the basis of Pahari Clan, Community or Tribe having distinct culture, ethnic and linguistic identity. The legislature’s intent has always been to make it ethnicity, culture and linguistic specific which is clear from the bare perusal of Rule 7 of S.O 176 of 2024 dated 15.03.2024 which provides as follows:
‘7. In Rule 21;
(i) In clause (iv), the following shall be added as second, third and fourth proviso respectively; namely: –
“Provided further that a person claiming the benefit under the Pahari Ethnic Group category must be: –
(a) A member of the Pahari Clan, or tribe having distinct Cultural, Ethnic and Linguistic identity.
(b) She/he must be speaking Pahari Language and his/her mother tongue must be Pahari.
(c) She/he must produce Aadhaar card/Voter Card/Domicile Certificate
(d) Further, Tehsildar shall be the authority to certify the claim of persons belonging to said Category”…
In a writ petition before the Hon’ble High Court of J&K&L, the Divisional Commissioner has filed a status report dated 24.09.2024 stating that vide letters dated 25.02.2022 and 28.04.2022,the Divisional Commissioner has sought clarification form Department of Social Welfare regarding issuance of Pahari Ethnic Group certificate to displace persons from POJK especial Poonch and Rajouri area. The Divisional Commissioner in his letters has mentioned that the reason of rejection of certificate to DPs of POJK is that they have settled/rehabilitated in non-Pahari speaking areas like Jammu/Samba/ Kathua districts and outside the UT; and as per SRO 127 of 2020, no specific clarity over the claims of above said category of people residing in non-Pahari area has been mentioned.
The revenue department is making it area specific whereas the legislature intent is clear that Pahari Ethnic Group shall be recognized as a)a member of the Pahari Clan, Community or tribe having distinct Cultural, Ethnic and Linguistic identity and; b) She/he must be speaking Pahari Language and his/her mother tongue must be Pahari.
It is also vital to note here that after the Divisional Commissioner wrote the letters dated 25.02.2022 and 28.04.2022 seeking clarification on S.O. 127 of 2020, Department of Social welfare issued S.O. 176 of 2024 having the same parameters for issuance of certificate under Pahari Ethnic Group as of S.O. 127 of 2020 and in the S.O. 176 of 2024, the category name is changed from ‘Pahari Speaking people ‘to’ Pahari Ethnic Group’ which speak volumes about the intent of legislature that the category of Pahari Ethnic Group shall be clan, community, tribe, cultural and linguistic (mother tongue) specific and not area specific.
It is also astonishing to note that in his status report dated 24.09.2024, the Div Com is barging on letters dated 25.02.2022 and 28.04.2022 seeking clarification on S.O. 127 of 2020,whereas, Social Welfare Department issued a) S.0. 537 of 2022 dated 19.10.2022 whereby the words ‘Pahari Speaking People’ were substituted with the words ‘Pahari Ethnic Group’ which make it clear that the certificate is to be issued on ethnicity basis and not otherwise and; b) S.O. 176 of 2024 dated 15.02.2024 wherein same parameters as of S.O. 127 of 2020 were kept for issuance of Schedule Tribe Certificate under Pahari Ethnic Group. If the legislature’s intent was to make it area specific, there would have been a specific mention about the same as in case of the Paddari Tribe which is as follows:
‘a) a person claiming benefits as a member of Paddari Tribe shall substantiate her/his claim on the basis of revenue documents or any other documents establishing that she/he ancestrally belongs to Paddar area of Kishtwar District…’
The specific stress on the words ‘ancestrally belongs to’ also denotes the person should be ancestrally belong to Paddar area of Kishtwar District and it is not important that as of today, she/he must be living there.
It may not be out of place to mention here that Paharis include Hindus, Sikhs, Muslims, and all those people of Kashmiri origin who settled in Rajouri and Poonch districts over a period. Paharis also include upper caste Hindus and, also the ones who were displaced from Pakistan Occupied Kashmir. It is vital to note here that the Government’s consistent and principled position, as also enunciated in the Parliament resolution adopted unanimously by both Houses on 22 February 1994, is that the entire Union Territories of Jammu & Kashmir and Ladakh have been, are and shall be an integral part of India including POJK.
That non-issuance of Pahari Ethnic Group Certificate to DPs of POJK by making it area specific and discriminating for being displaced persons of POJK is nothing but blatant abuse and violation of the fundament rights of the DPs of POJK as enshrined under Article 14, 15 and 16 of the Constitution of India.
(The author is an Advocate of Supreme Court and J&K&L High Court)
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