For the last 73 years natives of Jammu and Kashmir (J&K) have lived in fear of the Indian government stripping them of their autonomous status. At a time when J&K is already suffering under a militarised Covid-19 lockdown, the newly introduced domicile law has furthered the reality of a Kashmir which will never be under independent rule, but silenced under an oppressive right wing Indian regime. This legitimisation in law of an ongoing de facto situation is the newest of the grave threats to Kashmir’s decades-long struggle for autonomy.
THE JAMMU AND KASHMIR DOMICILE LAW
The Indian government issued the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules 2020 in May 2020. These Rules create a new category of non-Kashmiri domiciles who are eligible for permanent Kashmiri citizenship. The Rules state that domicile is available for those who fall under one of six eligibility grounds: Indian citizens who have resided for 15 years or who have studied for 7 years in J&K, children whose parents have served the Indian government in J&K for 10 years, refugees from West Pakistan registered as migrants in J&K, members of the Valmiki community, and lastly women residents who married a non-resident of J&K.
Those who acquire domicile status automatically acquire citizenship rights that were previously reserved for Kashmiri natives under the erstwhile state’s constitution. Further, the now repealed Article 35A of the Indian constitution had previously empowered the local government to define who permanent residents of the region were and forbade outsiders from permanently settling, buying land or holding local government jobs. This was to protect the internationally enshrined right to self-determination and the already threatened autonomous status of Kashmiris. Yet, under the new domicile law that has replaced Article 35A, non-Kashmiri domiciles are expressly granted the right to employment in government jobs and to purchase immovable property in J&K.
The new Rules also provide an expedited and easy process for acquisition of domicile for non-Kashmiris. Applicants with proof of residence follow a straightforward process in which a district officer issues a domicile certificate within a strict 15 day time limit. Officers that fail to comply with this timeline face a fine of 50,000 rupees ($660). This process, which can also be completed online, differs strongly from the previous procedure for obtaining domicile, which involved a labyrinth of procedures and various government offices. This stark procedural change highlights the urgency for the Indian government to provide an accelerated path towards domicile for non-locals and prevents any resistance from Kashmiri officials.
On the other hand, Kashmiri natives are burdened with a complicated domicile-attaining process. Under the new Rules, existing permanent resident certificates (PRC) of indigenous Kashmiris exist only as evidentiary proof of their residence, and must be submitted to their district officer to obtain a new domicile certificate. This circular requirement aimed at verifying domiciled people of the region unnecessarily burdens Kashmiris with a stringent process. Where domicile is mandatory for employment opportunities and Kashmiris are the only group facing deliberate barriers in gaining it, shameful consequences arise. It appears that every eligible group except those who are already legitimate domiciles of the region can easily gain the status of a rightful citizen of J&K.
HUMANITARIAN GESTURE OR POLITICALLY MOTIVATED DISENFRANCHISEMENT
The Indian ruling party president has recently stated that this is a law that will “spread dignity and equality, giving long due rights to all”. The domicile law is celebrated by the national government as a “humanitarian gesture” towards previously persecuted or excluded communities as stipulated in the eligible categories above. These communities consist of West Pakistan refugees who had been denied citizenship rights since the 1947 partition, members of the oppressed Valimiki group, and women who married non-residents of J&K, who were all excluded from gaining domicile under the previous hereditary domicile law. While the new law may be a positive step in amending the exclusion suffered by these communities, it does so by undermining the rights of the majority population in Kashmir.
The positive perception of the new law is also shared by many in India who in following the long-standing nationalistic ideology would prefer to see the Muslim majority J&K as integral to India. Thus, many hope that with the Indian government’s increasing power over J&K, the positive “integration” of new Kashmiri-Indian citizens entering the region will soon result in one unified country.
The new law does indeed provides economic opportunities, growth and stability for the families and livelihoods of the non-Kashmiri domiciles. However, it comes at the cost of a tendentious and politically motivated disenfranchisement of the Kashmiri natives. Mirza Saed Beg, a Kashmiri lawyer, points out that according to the 2011 census 1.7 million non-Kashmiri migrant labourers live in J&K and have served the Indian government for the minimum of 15 years required for domicile. They make up 15% of the Kashmiri population. Since the domicile law has passed, over 25,000 domicile certificates have come into effect. An estimated 2 million people will now have political power, voting rights, ownership of property, and the right to compete for sought after jobs in the region.
A quarter of J&K’s native population, consisting mainly of university graduates and women, is unemployed. With increasing competition from new domiciles who will gain greater stability and power throughout the region, the fear of demographic flooding replacing Kashmiris with non-locals is a real concern. With the rights of non-locals now being on par with those of indigenous Kashmiris, their right to self-determination is impacted, creating room for a form of settler colonialism.
IMPLICATIONS FOR INTERNATIONAL HUMAN RIGHTS
The greatest international human right under threat for Kashmiris is their right to self-determination. This right has been under threat since the illegal accession of J&K to India in 1947 which violated the UNSC Resolution 47. Specifically, this resolution promised a plebiscite to Kashmiris to freely decide if they would accede to India or Pakistan. The domicile law presents the next step in a long history of violation of the right to self-determination by India. The Organisation of Islamic Cooperation (OIC) condemned the domicile law as bringing forth an “illegal demographic change of a Muslim majority” and called for the United Nations (UN) Secretary General to appoint an envoy to resolve the dispute.
India has ratified the International Covenant on Civil and Political Right and the International Covenant on Economic, Social and Cultural Rights, the two main human rights instruments of the UN, but has done so with multiple reservations. This includes the nullification of Article 1 of both Covenants on the right to self-determination. Consequently, self-determination in India only applies to “foreign domination”, thereby excluding any acquisitions or cessions of territory in India, including India’s illegal acquisition of J&K in 1947.
The right to self-determination may be the longest-running violation of the rights of Kashmiris, but it is not the only one. The Indian military’s increasing and violent presence in the region in the past year has led to a violation of essential freedoms including peaceful assembly, health, education, expression and religion. Their actions are in contravention of the protection of civilian persons prescribed under the fourth Geneva convention and have been condemned by the UNHCR. The severe crimes against humanity that have been committed by the Indian army remain unprosecuted, owing to the impunity that they enjoy under the Expansion of Armed Forces Special Power Act (AFSPA) 1990, among other anti-terror laws enforced by the Indian government.
The domicile law is a legitimization in law of the increasing disregard and destruction of Kashmiri freedom, history, culture and life.
Eeman is a LLB Law graduate and is currently studying her LLM in International Human Rights Law. She is incredibly passionate about developing a legal career advocating for persecuted minorities including refugees and asylum seekers, especially in Southern and Western Asia.