Abrogation of Article 370 and New Domicile Law in Jammu and Kashmir (UT)

Background

As per the Indian Independence Act 1947, passed by British Parliament on 18/07/1947, the suzerainty British India over India would cease to exist and divided India into two independent Republic, republic of India and Islamic Republic of Pakistan. As per Clause 7(1)(b) of Indian Independence Act 1947 all princely states were given option to join either of the two dominion or remain independent. Indian National Congress, Muslim League and Sikh community came to an agreement with Lord Mountbatten about how the creation of two dominions would be executed and it is popularly known as “The Mountbatten Plan”. But this great divide came with 0.2 million to 2 million human lives due to riots that erupted during the creation of two nations. All princely states decided to join either India or Pakistan except the Princely state of J & K which had a unique problem as it had a Hindu ruler over Muslim majority population. The then ruler of Jammu and Kashmir Maharaja Hari Singh decided not to join either dominion and thus signed standstill agreement with India and Pakistan, Pakistan signed but India refused. But native of Poonch launched a rebellion against maharaja followed by attack on Kashmir by Pathan (Pashtun tribal) Militia and Pakistan regular and irregular army men resulted in lost control over his western districts of Gilgit-Balitsthan, Mirpur, Kotli, Muzafrabad and a part of Poonch. Having lost control over his areas, Maharaja Hari Singh decided to seek help from Indian government. Indian government put forward the condition of joining the Indian dominion and as a result Instrument of Accession was signed by Maharaja Hari Singh on 26^th Oct. 1947. After instrument of accession was signed Indian Forces entered Kashmir to repel invaders and then war continued for more than a year. Mountbatten persuaded Jawahar Lal Nehru to take the Kashmir issue to UN and finally cease fire was declared on 01^st Jan. 1949 after arbitration of UN. Since then this matter is still unresolved and is being tried to solve it as per UN resolution.

Constituent Assembly

As per UN Security Council Resolution 47 of 21 April 1948, Pakistan was asked to withdraw from the areas of Jammu and Kashmir, which was mentioned in Instrument of Accession 26th October 1947, so that conducive environment for free and impartial plebiscite in the State of J&K. More than 2 years were passed but no action was taken by Pakistan to implement UNSC Resolution 47 dated 21 April 1948, then a resolution was passed on 27 October 1950 in J&K regarding the creation of the Constituent Assembly and on 1^st May 1951 an order in this regard was issued by Dr. Karan Singh, the then Head of the State. The primary function of Constituent assembly was to formulate a separate constitution for the state of Jammu and Kashmir and decide the fate of Article 370 of the Indian Constitution. Constituent Assembly was given authority to either retain, modify or delete the provision of article 370. Constituent Assembly drafted separate constitution for the state of Jammu and Kashmir and it came into force on 26^th January 1957. After the completion of constitution in November 1956, constituent assembly adopted Mir Qasim resolution and dissolved itself on 17^th November 1956 decided to retain Article 370 of the constitution of India.

Introduction to Article 370

Sheikh Abdullah and Nehru started to formulate an article in the Indian constitution, kept Sardar Patel out of the affair, in late 1947. Dr. B.R. Ambedkar, architect of Indian constitution, opposed any such article which would provide special status to the state of Jammu and Kashmir. Sardar Patel resigned as Home Minister to protest any such move by Nehru. Meanwhile Sheikh Abdullah and Nehru finalized the draft of article and Nehru got Gopalaswamy Ayyangar, IAS become first Prime Minister of Jammu and Kashmir to get the draft copy of article passed by Constituent Assembly. Following negotiations and modifications draft copy of article was passed on 27^th May 1949. Finally it was Included in the constituent assembly constitution on 17^th October 1949 in Part 21 of Indian constitution. It was enacted vide first Presidential Order 1950 dated 26-01-1950. At that time it was only article along with article (1) of Indian constitution that was automatically applied to the state of J & K, all other articles of the constitution would applied with exceptions and modifications in consultation with constituent assembly of Jammu and Kashmir.

Presidential Order 1950

It provided the following special powers to state of Jammu and Kashmir. (I tried to explain Article 370 in simple words, it draws its meaning from the original text of Article 370)

1. Article 370(1) Notwithstanding anything in this constitution,
   1. Article 370(1)(a): Article 238 of the Indian constitution not applicable to the state of J & K.
   2. Article 370(1)(b): Parliament of India can make law in case of subjects
      1. Article 370(1)(b)(i): falling under Union List and Concurrent list, in consultation with State Government, and those subject should be from the subjects mentioned in Instrument of Accession.
      2. Article 370(1)(b)(ii): Parliament of India can make law in case of subjects other than mentioned in article 370(1)(b)(i), falling under Union List and Concurrent list, in concurrence with State Government.
   3. Article 370(1)(c): Provisions of Article 1 and Article 370, would be applicable to the state of Jammu and Kashmir
   4. Article 370(1)(d): Other provisions of constitution of India applicable to the state of Jammu and Kashmir to such exceptions and modifications as President may specify, Provided no such matters listed in Article 370(1)(b)(i) shall be issued except in consultation with government of Jammu and Kashmir and for matters listed in Article 370(1)(b)(ii) shall be issued except in concurrence with government of Jammu and Kashmir
2. Article 370(2) If the concurrence of the Government of the State( The Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948) be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
3. Article 370(3): Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification.

Presidential Order 1954

It made the following important changes in the Presidential Order 1950.

1. Indian citizenship was extended to the residents of J&K.
2. Article 35(A) was added to the constitution of India.
3. Fundamental rights were extended to citizen of J&K.
4. Jurisdiction of Supreme Court of India extended to J&K.
5. Govt. of India was given power to declare national emergency in state only in case of external aggression, but in case of internal disturbance, national emergency could be declared only after consultation with the state government.
6. Centre – State relation were made in line with the nature of relation that centre shared with other states.

Induction of Article 35(A)

Prior to the independence of India, Maharaja of Jammu and Kashmir enacted various legal provisions that granted exclusive rights to the subjects of Jammu and Kashmir like employment, property rights which were not available to non state subjects.
As per the recommendations of Union Government, Dr. Rajinder Prasad on 14 May 1954, issued Constitutional Order 1954, which extends Indian citizenship to the citizen of Jammu and Kashmir and article 35A was included in the Indian Constitution.
Article 35A provided right to the State Legislation to draft rules for the permanent residents of Jammu and Kashmir and parliament of India had no role in this regard. Article 35A states that Notwithstanding anything contained in the constitution of Indian, no existing law in Jammu and Kashmir or no future law enacted by the state legislation.

1. Defining the classes of Persons, who are or shall be the permanent resident of Jammu and Kashmir
2. Conferring on permanent residents any special rights or privileges or imposing upon permanent residents any restrictions related to
   1. employment under state government
   2. Acquisition of immovable property
   3. settlement in the state
   4. Right to Aid and Scholorship provided by the state government

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.
Exclusive Rights reserved for the permanent residents of Jammu and Kashmir

1. Non Kashmiri could not buy land in Kashmir.
2. Individual from other states of India, could not settle in Jammu and Kashmir.
3. If female of Jammu and Kashmir marry outside the state, then these exclusive rights would no loger available for her as well as her children.
4. Non PRC holder cannot contest legislative elections in Jammu and Kashmir.
5. Non PRC holder cannot be a voter in Jammu and Kashmir.

Since the 14th May 1954, the day article 35A was notified by the President of India, there is continue debate over its legality and a case in this regard is still under hearing in supreme court of india.

Presidential Order CO 272

Use article 370(1) to amend article 370(3) via article 367. Added clause (4) to article 367 and the important aspect that did the magic for the government, that the sadar-e-riyasat of Jammu and Kashmir shall be constructed as references to the Governor of Jammu and Kashmir. Likewise the term Constituent Assembly of Jammu and Kashmir now be read as Legislative Assembly of Jammu and Kashmir. This provided the much needed room to government under article 370(3) to dilute article 370 in concurrence with the state government, represented by governor at that time as the assembly was under suspension.

Presidential Order CO 273

It says that all provisions of article 370 would cease to be operative from the 6th August, 2019 except the following:

1. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.”
2. Constitutional Validity of this move has already been challenged in Supreme Court of India, and the case is still under hearing and as per the latest news, Supreme Court has rejected to transfer the case to the larger bench.

Reorganization of Jammu and Kashmir

The erstwhile state of Jammu and Kashmir has been reorganized into two Union Territories.

1. Union Territory of Jammu and Kashmir
   1. Unicameral Legislation in line with Puducherry model – Article 239A
   2. Total no. of Legislative Assembly Seats: 107 (24 remain reserved for the area under illegal occupation of Pakistan)
   3. Term of Legislative Assembly: 05 Years (Earlier 06 Years in the state of Jammu and Kashmir)
   4. No. of Parliamentary Seats: 05
   5. No. of Districts: Jammu Division: 11
      1. Kathua
      2. Samba
      3. Jammu
      4. Rajouri
      5. Poonch
      6. Mirpur
      7. Reasi
      8. Udhampur
      9. Ramban
      10. Doda
      11. Kishtwar
   6. No. of Districts: Kashmir Division: 11
      1. Anantnag
      2. Kulgam
      3. Shopian
      4. Pulwama
      5. Srinagar
      6. Ganderbal
      7. Bandipora
      8. Baramulla
      9. Budgam
      10. Kupwara
      11. Muzaffrabad
2. Union Territory of Ladakh
   1. Without Legislation
   2. No. of Legislative Seats: 00
   3. No. of Parliamentary Seats: 01
   4. No. of Districts: 02
      1. Leh (including Gilgitm, Wazarat, Chilas, Tribal territory)
      2. Kargil

Jammu and Kashmir State Domicile Law

After the abrogation of Article 370, there was a lot of confusion regarding the existing laws of erstwhile Jammu and kashmir. To remove these uncertainties, Ministry of Home Affairs, notify new rules to run the state. In this line MHA amended 109 laws and repealed 29 existing laws. In addition to this, the term Permanent Residents have been replaced with “Domicile of Jammu and Kashmir”. On 31st March 2020, MHA reserved Group D level posts for domiciles of Jammu and Kashmir. But facing uproar in the state, MHA repealed the law and notify new rule according to which, all government jobs now will be reserved for domicile of Jammu and Kashmir. This will allow West Pakistan refugees and children of women who married non-locals to apply for jobs in Jammu and Kashmir.

What is Domicile Law of Jammu and Kashmir

According to the latest notified law following will be considered as domicile of Jammua and Kashmir.

1. All Permanent Resident Certificate holder.
2. Who has stayed in the state of Jammu and Kashmir for atleast 15 years.
3. Who has studied for a period of seven years and appeared in Class 10th/12th examination in any educational institution located within the UT of J&K.
4. who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants).
5. children of central government officials, autonomous body of Centre, Public Sector Banks, officials of statutory bodies, central universities and recognised research institutes of the Centre who have served in J&K for atleast 10 years.
6. children of such residents of J&K who reside outside J&K in connection with their employment or business or any other reason, but their parents should fulfil any of the conditions provided.

Who will Issue Domicile Certificate

The power to issue domicile certificates has been vested in the tehsildar (revenue officer).

How to Get Domicle Certificate

Step by Step Procedure to apply online for Domicile Certificates and other services  in online mode.

• In order to  avail the above services one has to go the the official website and login through Citizen Registration Link, below picture shows the welcome page.

Click here to visit Home Page to apply Domicile Certificate

• After filling up the personal details and other information a user ID and password will be generated which can be used for further communication in the website for availing the  online services. Below picture illustrate this step.

Click Here to Visit Registration Page

• After submitting the application a window will pop up displaying the login ID and temporary password, the temporary password has to be changed on first login.  The below picture shows the pop up window.

• Now you can login with your registered User Id and Password to Avail the services which you wants.
•  For Domicile services you have to select  E-Services and in the list of departments , select General Administration Dept and then click on Application for Domicile Certificate.

Important Instruction before registration on the online portal to apply online Domicile certificates and other services.

• Before applying the Service, User has to register using the Citizen Registration Link given on login Screen. Already Registered Citizen can avail the Service Using Login ID and Password generated after Citizen Registration.
• Applicant has to upload the Passport size scan photo (jpg image) in the clear background of size less than 50 kb.
• Please, note the user id and password entered by the applicant during registration for Login and availing the service.
• Please, select the role type Citizen while entered login credentials by the Applicant using Citizen Users ID and Password.
• After Login, Applicant has to click on the e-services tab in the left menu and thereafter click on the department to which he has to avail the service.(e.g. Scholarship schemes under Social Welfare Department or Domicile Service Using General Administration Dept.)
• Please, note the Citizen ID, Username and Password after successful registration of Citizen as it will be required at the time of availing the service.

How Long will it take to Get Domicile Certificate

As per the law, stipulated time for the issue of certificates is 15 days, failing which the dealing officer will be penalised Rs.50,000 of his or her salary.