A redefining of the domicile law has been on the cards postrescinding of Article 35A in August last year. Having demolished the edifice,the scaffoldings had to be removed.
It had been in speculation that the earlier constitutionallyguaranteed domicile rights would be replaced substantively albeit as a legalright. Not that constitutional guarantees mean much anymore, but that was theexpectation.
On the 31st of March, 2020, as a part of the exercise toalign the state laws of the erstwhile state of J&K with its new stature asa Union Territory, Government of India amended 109 and repealed 29 state laws.Apart from generically replacing “Permanent Residents of J&K” with”Domicile of Union Territory of J&K”, one of acts changed made to the rulesof Domicile for purposes of appointment to any service in Union Territory ofJammu and Kashmir. This has far reaching implications.
The changed legal and administrative regime for definingdomicile and the associated rights in J&K has to be understood in terms ofthe meaning of undoing, the method of doing and the manner of redoing of thedomicile provisions. Equally important to understand is the reactions from thestate to the changes that were enacted.
The changes made go beyond diluting the rules of domicile inJ&K to allow “outsiders” in. The fundamental change that has been made isundoing the principle of “domicile of origin” that the earlier law was based onand replace it with a “domicile of choice”. Adding “safeguards” in terms ofnumber of years in residency as qualifiers is subsidiary. More on that later.
Legally, the domicile of origin which one acquires at thetime of birth, is the “creature of law”. It confers a right that can never be”entirely obliterated and extinguished”. What this means is that even whenanother domicile is put on, and the domicile of origin is for that purposerelinquished, it remains in abeyance during the continuance of the domicile.
It thus recognises and reflects social factors andrelationships. It contains within it the conception of domicile that relied onethnic origin as a marker of belonging. It also provides personal law forresolving the legal issues of a person.
Most significantly, the tenacity of this law is evident fromthe fact that it revives and exists whenever there is no other domicile, and itdoes not require to be regained or reconstituted animo et facto in the mannerwhich is necessary for the acquisition of a new domicile. Such a powerful lawhas been replaced by an anaemic legal regime. The “domicile of choice”, theproduct of preference and practice. It is fundamentally a self-acquireddomicile and hence very benign.
In fact, domicile of choice is a conclusion or inferencewhich the law derives from the fact of a person fixing “voluntarily” hisresidence in a particular place with the “unlimited intention” of continuing toreside there. It is at best a description of the circumstances which create adomicile, and not a definition of the term.
With a view to give it some teeth, qualifying condition interms of number of years – 15 years – has been added as a protection. Evenhere, a subset of 10 years has been added for those residing in J&K on workof the organs of the state; central government and its subsidiaries. This ruleis in complete contradiction of the basic principle of the domicile by choice;freedom of choice. It also goes against the international norms and practices.
It is an internationally accepted tenet, upheld in numerouscourt verdicts, that “residence for domicile rights” must be freely chosen and notprescribed or dictated by any external necessity such as the duties of office”.Further, it cannot be fixed for any defined period or particular purpose, buthas to be general and indefinite in its future duration. In other words, forthe domicile rights to be legally valid, the intention to settle down in aplace must be free and voluntary.
Indeed, section 12 of the Indian Succession Act 1925 laysdown the principle. And the Explanation to Section 10 of the same Act amplifiesthat a person cannot be deemed to have taken up residency “merely by reason ofhis residing there in Majesty’s civil, military, naval or air force service inthe exercise of any profession or calling.” These cases cast doubt on thefreedom of intention as they are involuntary.
The inference is that as soon as the purpose of stay orgenerally animus manendi changes, the fact of domicile of choice getsextinguished by law.
As such, Section 3A, sub-section 1, clause (a) and Section3A, sub-section 2, clause (a) of The Jammu and Kashmir Civil Services(Decentralisation and Recruitment) Act (Act No.XVI of 2010) fly in the face ofthe established tenets of the domicile of choice.
Perhaps it has been realised that given the situation inJ&K for three decades now, it won’t be a domicile of choice for anybody inthe foreseeable future. Hence the choice is being incentivised and guided, ifnot ordered. The choice will be made by the government and only complied by theindividual.
The special dispensation for children of those who areserving in J&K, makes matters more complicated as the domicile of choicehas been merged with the domicile of dependence! The result is a domicile law that is a nonsequitur.
The real issue is that the new regime of domicile rights inJ&K strikes at the roots of the notion of who belongs to Kashmir. The rulesobliterate, through redefining, the ethnic conceptions of belonging that wassought to be protected by the domicile law in the first place.
Indeed, what Article 35 A had done was to reconcile and makethe J&K domicile an attribute of Indian nationality. It denoted his/herplace of residence as a citizen of India. For, the people of J&K, domicilewas the de facto citizenship from 15th August 1947 to May 14, 1954.
It may be recalled that even after J&K acceded to India,the people of the state did not automatically become Indian citizens. Thishappened with the Constitution (Application to J&K) Order, 1954 whichstipulated that the people of J&K are citizens of India with retrospectiveeffect from 1950. In fact, it was notuntil the Citizenship Act of 1955 that the state- subjects were formally madecitizens of India.
Finally, an important aspect is how the domicilenotification was amended within two days of it being notified. With constitutionalism being replaced by adhoc and arbitrary rules, the consequence is that these are open to informalprivate negotiations. Or maybe the other way round!
More than anything else, this speaks volumes about how theformal legal and legislative matters like residency and, by implication,citizenship are being made or unmade based on informal private negotiations.This is an ominous boding not only for Kashmir but for the entire country.
Tail piece:
Equally distressing, if not more, is the reaction to the newdomicile regime, which has been about the timing and state government jobs.
It was in 1865 that “mulki rights” were first raised as anissue in J&K. This was followed by a representation to M H Sharp in 1916, amemorandum to Lord Reading in 1924 and charter of demand to B J Glancy in 1932.All these had one thing in common: representation in the state governmentemployment. Exactly a 155 years later,the same issue is being raised and negotiated with the Government of India. Inany case, with 4.5 lakh people already in government service (Bihar with nearly10 times the population, has only 4 lakh employees), one out of every seven inthe working population is a government servant. Add the pensioners, and everythird person will be on the payrolls of the government!
So, what are the numbers that are being held out as carrots?At an average rate of retirement of 3 per cent, and much higher rate of growthof youth entering the job market, someone would do well to estimate the jobmarket dynamics!
As such, to see the domicile law from the perspective ofreservation for government jobs is the tail wagging the dog! And therein hangsthe real tale.