The J&K administration has notified the rules, Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules 2020 following the amendment of the Jammu & Kashmir Civil Services Decentralisation and Recruitment Act, 2010 on March 31, 2020. It may be recalled that in this Act, the words “Permanent Residents of Jammu and Kashmir” were replaced by “Domicile of Union Territory of Jammu and Kashmir”. This change is not a mere substitution of words. It has wide ranging implications.
First, constitutionally speaking, there is nothing like “Domicile of the Union territory of Jammu and Kashmir”. Constitution of India recognises only one domicile, namely, domicile in India. Article 5 of the Constitution is explicitly clear on this point; it refers only to “domicile in the territory of India”. There is no mention or provision in the Constitution of India about “domicile of a state”.
State Subject, which has been replaced, existed in J&K as an exception in the Constitution. Now with the special status having been abrogated, the concept of domicile has no substantive basis; it is just optics.
If there are any doubts about the constitutional invalidity of the term “Domicile of the Union territory of Jammu and Kashmir”, be enlightened by reading what the Supreme Court has said on many occasions.
Chief Justice, P N Bhagwati, heading a three-judge bench pronounced in Dr Pradeep Jain vs Union of India, 1985, that “It would not, therefore, in our opinion be right to say that a Citizen of India is domiciled in one state or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India”.
In another judgement, the Supreme Court has observed that “a person is domiciled in the whole of that country even though his home may be fixed at a particular spot within it”. So, both the Act and the rules are ultra vires to the Constitution of India; not being true to it.
Second, the word “domicile” been used in the rules only for prescribing domiciliary requirement for reservation in government jobs and admission to educational institutions situated within J&K. Section 3A of the Act defines the expression “domicile” only “for purposes of appointment to any service in Union territory of Jammu and Kashmir”. It does not grant domicile status, which existed under the J&K state subject law.
Even etymologically, “state subject” is very different from “domicile”. The former, a feudal concept drawn from the Anglo-Saxon law, is a territorially determined relationship between Subject and the Sovereign. Domicile, on the other hand is meant to identify the personal law by which an individual is governed. To compare the two, state subject denotes a person’s political status; domicile indicates his civil status.
In fact, the word ‘domicile’ used in the Rules is in the loose sense of permanent residence and not in the technical sense in which it is used in law. What has been notified is only a “requirement as to residence” for a government job. So, rights of residency have been replaced by rules of reservation. Far from a constitutional right, the way it has been formulated and notified, it may not even stand in a Court of Law.
To be sure, J&K had a domicile law enshrined in the two Constitutions. The amended Act deleted a term defined in section 6 of the Constitution of J&K and guaranteed by Article 35A of the Constitution of India. It was replaced by a term that has no Constitutional basis or even a legal basis in India. As such, contrary to what is being said, J&K does not have a “domicile law” now.
Third, there is nothing unique or special that has been done for J&K. All states and UTs have provisions for domiciliary reservations. Many states in India have extended domicile reservation in educational institutions.
The domicile reservation has been a part of the admissions to medical colleges for quite some time now. Apart from the medical colleges, more recently, state governments in Gujarat, Karnataka, Odisha and Rajasthan and the Union territory of Delhi have extended domicile reservation in the National Law Schools in their territory.
There is domicile reservation in National Eligibility cum Entrance Test allowing state government to reserve up to 85 per cent of the seats for the students domiciled in the particular state.
The same is true of the 15 years qualifying criteria to avail of domiciliary reservations. Almost all states and UTs give preference to those candidates who had their domicile within a state for a specified number of years ranging from 3 to 20 years. And to those who have studied in educational institutions in the state for a continuous period varying from 4 to 10 years. For this, all state government/UT issue domicile certificates required as proof of residence only to avail of the resident quotas.
Post Aadhar, the UID, a domicile certificate of the kind that will be issued in J&K now is really superfluous! It exists only for the state bureaucracies to protect their turf and perks! As such, the domicile certificate has no real meaning and is not in any way comparable to the PRC.
The only provision that is unique about J&K now is granting of domicile reservation for those (including their children) working for the central government and its subsidiaries.
Fourth, Judiciary is more likely than not to strike down the validity of Domicile Certificate even for the reservation; sooner than later. Indeed, the Supreme Court has repeatedly warned against the use of the word `domicile’ in relation to a State within the union of India.
Not only that, the Supreme Court strongly urged upon the State Governments not to include to this expression ‘domicile’ in the rules regulating admissions to their educational institutions and particularly medical colleges. The Supreme Court has told the states “to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions”.
More importantly, the rules that have been notified by the Jammu and Kashmir administration are on thin ice because these accord a blanket reservation. While the Supreme Court of India has so far only upheld the legal validity of domicile reservations, a 100 per cent reservation is fraught with the impending possibility of being struck down by the Supreme Court.
Currently, there is a case in the Supreme Court on a similar matter. In Dr Tanvi Behl vs Shrey Goel & Ors of 2019, Justice, Dinesh J Maheshwari, has referred “the question as to whether providing for domicile/residence-based reservation, is constitutionally permissible as also its corollaries, including the mode and modalities of its implementation (if permissible)” to a larger bench of the Supreme Court “for authoritative pronouncement”.
It is not as if the Government of India is not aware of this. The point is an alibi is being created and an escape route constructed.
Fifth, administratively the rules are at best clumsy or at worse mischievous. Not only does the changed usage of the term “domicile” dilute the rights associated with it in Jammu and Kashmir, the new definition goes beyond opening up the rules for “outsiders” to take residence in Jammu and Kashmir.
The fact that now a “state subject” who has been residing there for generations has to regain his “domicile” is adding insult to injury. Those who have been living there for 5,000 years are on the same footing as those who are seeking to acquire it now. Both have to prove it; the erstwhile state subjects by submitting a Permanent Resident Certificate, and the outsiders by submitting a ration card. Also, there is no specific provision for the Kashmiri diaspora.
It makes no sense to recruit tens of thousands of administrators to carry out the exercise of issuing Domicile Certificate to those who already have a Permanent Resident Certificate. The simplest way of not insulting the people and overburdening the bureaucracy would have been to stipulate that “the Permanent Residency Certificate is deemed to be a Domicile Certificate.”
Tail piece:
A well know influential Kashmiri Pandit, socially respected and politically networked, asked the Tehsildar for his domicile certificate. He was told, promptly and rather curtly, to submit his ration card as a proof of residence Needless to say that the gentleman in question has his PRC. Incidentally, he has given up his ration card post the Antyodaya scheme. Important to say that he has never migrated and has all along lived in the valley. But there is renewed hope for my friend; One nation, One ration card is on the way!