Abrogation, Celebration & Domicile Status - I

On 5th August, 2019, Article 35-A & J&K Constitution together with main Article 370 were rendered otiose by the Central Government after bifurcating J&K state into two Union Territories of J&K & Ladakh, & abrogating "special position" of J&K State in the Indian Constitution. (For fuller discussion read 3 issues of KT dated 27 to 29 April, 2020: Is Article 370 dead?)
Historical irony:
Truly, it is historical irony that the descendants of those Kashmiri Pandits who had initiated the movement for securing Kashmiris' rights under the slogans of "Kashmir for Kashmir" & "down with outsiders", and who were joined in the movement later in 1925 by the Jammu Dogra Sabha and who took that campaign to its logical conclusion, have been at the forefront of Hindu nationalist parties of India for destruction of the law, that guaranteed "Kashmir for Kashmiris", and substituting it with the law that announces "Kashmir for all".
From midnight of 5th August, 2019, when the entire population of Kashmir was put under months-long severest clampdown, the Kashmiri Pandit Organisations across India & beyond were celebrating the abrogation of Article 35-A and Article 370. It was like a long cherished dream of something coming true for Kashmiri Pandits. Right from 1990s , the apex body of Kashmiri Pandit associations, the All India Kashmiri Samaj (AIKS) and all its constituents, through their speeches, slogans, seminars, conferences, TV talk shows, newspapers, magazines, online news-opinion portals & books, within & beyond India, started a "Pandit Community Discourse" which, inter alia, openly demanded withdrawal of "special position" of J&K under the Constitution. "The Kashmiri Pandits played a key role in convincing the nation about the necessity of abrogating Article 370 and 35A". (GK 04-05-2020) So, it was Panun Kashmir, an organisation of migrant Kashmiri Pandits in India, that welcomed the abrogation of the "special position" of J&K as they believed that there were ""dangerous implications" of continuing with [it] under Article 370 and 35-A of the Constitution". (Business Standard 7-8-2019) The migrant Pandits hailed "historic" decision of central government of scrapping Article 370 [together with Article 35-A] of the Constitution. They took to the streets of Delhi, dancing & distributing sweets, to celebrate the "historic decision". (Business Standard 5-8-2019) Off shores, on the sidelines of Howdy-Modi Event held on 22 September 2019 in Houston, Texas, USA, the delegation of the Kashmiri Pandit Overseas Association [KOA] called upon PM Modi in Houston and congratulated him for abrogating J&K's "special status" which included Article 35-A . Modi told the delegation that "this is the beginning of 'Naya Kashmir' process" and requested for our [Kashmir Pandit community] support on all government decisions and endeavours relating to Kashmir." (Times of India 24-09-2019) Kashmiri Pandits with other Indian-Hindu Diaspora held rally before UN headquarters in US in support of revocation of J&K's special provisions by BJP government. (The Economic Times 25-08-2019)
Upheaval changes in Property Laws:
Article 35-A and Article 370 were done away with on 5th August, 2019 amid unprecedented clampdowns and total communication blockade. The central government passed the Jammu & Kashmir (Reorganisation) Act, 2019 on 9th August, 2019 that split erstwhile J&K State into two UTs of J&K & Ladakh w e f 31-10-2019 and applied all provisions of Indian Constitution to the newly carved out UT of J&K. On 9th August, 2019 , the central government exercising its power under section 13 of the said Reorganisation Act, passed the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 which was published on 31-10-2019 . The Removal of Difficulties) Order, 2019 effected substantial changes in the nomenclature of the terms and expressions that were used in the laws of the erstwhile State of J&K and which existed as on the date of reorganisation of J&K. After applying all the provisions of the Indian Constitution to the UT of J&K, the references to the terms "'permanent residents' or 'hereditary state subjects' , wherever found in the laws of erstwhile State of J&K, have been omitted vide section 12 of the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019. Through the Reorganisation Act, the central government has replaced the J&K Transfer of Property Act by the Central Transfer of Property Act and repealed the J&K Land Grants Act. So, on a joint reading of the Reorganisation Act and Removal of Difficulties) Order, it is clear that the land-property-laws of erstwhile State of J&K have undergone upheaval change since 5th August, 2019. And, there is every reasonable probability that in the course of time, as long the Presidential Rule continues in the UT of J&K, the UT is most likely to get more "Executive Orders" to "remove difficulties" in the implementation of the new property and other laws within the UT of J&K.
"Domicile Certificates" obligatory for govt-jobs:
When India with entire world was/is reeling under the horrible effects of ongoing Covid-19 pandemic, the central government quietly passed two Domicile Orders which may have far reaching consequences for the demography of erstwhile State of J&K in future. Exercising its "powers" vested in it under section 96 of the Jammu & Kashmir (Reorganisation) Act, 2019, the central government issued the Jammu & Kashmir Reorganisation (Adaptation of State Laws) Order, 2020 which was published in Gazette on 31-03-2020 by the Home Ministry. The Order made a number of amendments to 138 State Acts out of which 30 Acts have been repealed in toto, while the other laws have been adapted with modifications & insertions. Again, under the cited section 96, the central government also passed the Jammu & Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020 whereby 37 Central Laws have been applied and implemented in the UT of J&K which was also posted in Gazette on the same day of 31-03-2020 together with above Order. However, within three days of its issuance, the Jammu & Kashmir Reorganisation (Adaptation of State Laws) First Order, 2020 was amended through the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Second Order, 2020 which was published on the night of April 3rd-, 2020 vide SO 1245 E. (The Hindu dated 4-4-2020: Congress Leader welcomes amendment). Why First Order was amended so quickly? The next paragraphs will make things clear.
To recall to our minds, the job-rights and land-property-rights within the erstwhile State of J&K were secured only for "permanent residents of J&K" who were called "Hereditary State Subjects" under the State Laws right from 1927 & 1932. But a drastic change has been effected in the very meaning of the term "permanent resident of J&K" by substituting it with the expression "domicile of UT of J&K" vide the Jammu & Kashmir Reorganisation (Adaptation of State Laws) First Order, 2020. The substituted term "domicile of UT of J&K" has been inserted in the provisions of the law relating to job-rights of the people of erstwhile State of J&K under the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, (Act No: XVI of 2010). Under original sections 6-8 of the said Act, of 2010, only "permanent residents of the State" were eligible for applying for a post of district, divisional & State cadre level within the erstwhile State of J&K. The categorization of posts into district, divisional and state cadres has been abolished and the term "permanent residents of the State" has been replaced by the term "domiciles of UT of J&K" in Sections 6 & 7 of the said Act of 2010 and the pre-condition of "residency" which was mandatory for an applicant for a district or divisional cadre post in terms of Section 13 of the Act of 2010 has been abolished by omitting section 13 itself & clause (I) of section 8 of the Act of 2010.
The Jammu & Kashmir Reorganisation (Adaptation of State Laws) First Order, 2020 has inserted section 3A to the Act of 2010. Section 3A defines five categories of domiciles of newly constituted UT of JK. The prescribed qualifying conditions of domiciles of five categories are discussed a little later in next paragraphs. The first category & second category include, with addition of those who have "studied for seven years and appeared in Class 10 and Class 12 examinations in an educational institution located in the Union Territory of J&K", what we can say original domiciles of erstwhile State of JK. Under the changed procedure in terms of newly inserted section 3A of the Act of 2010, firstly it was provided that first category & second category, or original domiciles, of UT of JK, were entitled "for the purposes of appointment to any post carrying a pay scale of not more than Level-4 (25500) ….." (Ref section 2 (i) & section 3-A of the Jammu & Kashmir Reorganisation (Adaptation of State Laws) First Order, 2020).
This criterion of appointment in jobs was changed within three days vide the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Second Order, 2020, cited above. Actually, "the Jammu Unit of the BJP was worried & upset with" this criterion that only kept lower level or Group D jobs reserved for locals (domiciles of origin of UT of J&K) with all other jobs of higher level, Group A & Group B, open for all. (The Hindu 3-4-2020) It meant that an original domicile of J&K was entitled to apply only for a post carrying a pay scale of not more than Level-4 (25500), that is , the lowest category among non-gazetted posts equivalent to that of a Constable or Junior Assistant or a peon, while all other posts of Gazetted & Non Gazetted cadre from Level 1 to Level 3 were left open for all. The "State-based-BJP leaders" succeeded in persuading the Central Government to amend the domicile law to keep open jobs of all categories & cadres for the domiciles of J&K. (The Hindu 4-4-2020 ) It was against this backdrop of objections that the cited Jammu and Kashmir Reorganisation (Adaptation of State Laws) Second Order, 2020 was passed to replace the words "any post carrying a pay scale of not more than Level-4 (25500)" in the First Order by the words "any post" keeping, therefore, all posts open for category one and category two of domiciles of J&K in the First Order. Actually, all categories of posts in future will be open for all five categories of domiciles of UT of JK once the law is implemented and prescribed qualifying conditions fulfilled by the future applicant domiciles of UT of JK. Presently, it may be said that "100 % job reservation" has come to JK residents through the Second Order but "without any Constitutional backing of Article 370", which was abrogated on 5th August, 2019. The Constitutional backing of job reservations, however, continues with respect to other States like AP & Telengana under Article 371-D, Karnataka under Article 371-J, North East States under Article 371. (The Daily Excelsior dated 5-4-2020: JK only entity)
Under the First Order, domiciles of UT of JK were either "are domiciles" or "deemed/deemed to be domiciles", in either case, by fulfillment of the prescribed qualifying conditions. Vide Second Order, the words "deemed" or "deemed to be" have been omitted which means that now under the changed procedure there are domiciles of J&K only, and not deemed/to be deemed domiciles. The difference between "are domiciles" & "deemed/to be domiciles" is not that of de jure & de facto kind of differentiation as understood in law. The difference between "are domiciles" & "deemed/to be domiciles" is not that of de jure & de facto kind of differentiation as understood in law, nor are the Kashmiri "Pandits pariah" under the cited Orders, as mistakenly written by an ex-PDP politician-cum-Minister, Haseeb Drabu, (Greater Kashmir 30-04-2020). How could the KPs have been left out or "pariah" under new Domicile Orders when, in their own words, they are the brain behind all what has been done, so far. On a "futuristic reading" of the same Order and other related Orders issued/to be issued, what is the "demography of the UT of J&K is going to-be"? Under the grand scheme of things unfolding from 9th August, 2019, such an "apprehension" can't be discarded simplistically, as "unreasonable"?
(To be continued)