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Abrogation, Celebration & Domicile Status -II

By M J Aslam. Dated: 5/29/2020 12:53:04 AM

Five categories of domiciles:
Now, who are the domiciles of UT of J&K under the changed procedure? There are five categories of domiciles under the new procedure. The first two categories in sub-section 1 of section 3A are the following: Anyone (1) who has resided for 15 years in Jammu and Kashmir or has 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 or (2) who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) within the UT of Jammu and Kashmir. (Ref section 3A(1) (a) & (b) of the Jammu & Kashmir Reorganisation (Adaptation of State Laws) First Order, 2020) All "Hereditary State Subjects" residing in J&K for more than 15 years and all registered migrant KPs within J&K" are covered within the purview of this definition under a new nomenclature of domiciles of UT of J&K. But one may expect amends in the definition of domicile too as some migrant KPs are said to be "non-registered" with the Relief Commissioner of Migrants within the UT of JK at Jammu but residing elsewhere in India who are likely to be brought within the definition of domicile. (Kashmir Life 1-5-2020, see statement of Vijay Bakaya ) Not only this, we may expect a change in 15 years' residency criterion as well, as it is said that there are "original" State Subjects, who are living in other parts of India and abroad for more than 15 years who may be also brought within the ambit of new law of domicile. (Greater Kashmir dated 04-05-2020[GK Kashmir's Pariah, Nation's Compatriot) Then, there are those who have studied for seven years and appeared in Class 10 and Class 12 examinations within JK & who are domiciles under the new procedure. The last of these "domiciles" is a totally novel entry of "domiciles" in the UT of JK.
Under the First Order, the following were "deemed to be domiciles" but in the Second Order, they are also domiciles of UT of J&K in the third, fourth & fifth category of definition: (3) children of the officials of the central government, autonomous & statutory bodies of central government, central university & research institutes, and of all India service officers, officers of PSUs & PSU banks, who have served in Jammu and Kashmir for 10 years, or (4) children of parents who fulfill any of the conditions in subsection (1) of section 3A, or (5) children of those residents of Jammu and Kashmir who reside outside the Union Territory in connection with their employment or business or other professional or vocational reasons but their parents fulfill any of the conditions of domicile. (Ref section 3A (2) (a), (b) & (c) of the Jammu & Kashmir Reorganisation (Adaptation of State Laws) First Order, 2020) The category third shall also be new entry in erstwhile State Subject laws.
Domicile Certificates for educational institutions & entrance tests:
On 20-05-2020, the government of UT of J&K through its General Department at Jammu extended the domicile regime of orders to the competitive examinations & educational institutions. It issued a Notification vide SO 175 which amended Rule 4 of the JK Board of Professional Entrance Examination Rules, 2014 & henceforth, any student-candidate appearing in any entrance test conducted by the Board has to prove his domicile status by submitting his Domicile Certificate, not "Permanent Resident Certificate" (State Subject Certificate), with other prescribed documents, to the Board, before he/she is allowed to sit in the examination. On the same date, the same department issued a Circular under No: 12 -JK (GAD) of 2020 signed by US to the government. The Circular states that for admission into Educational Institutions, which means schools, colleges & universities, within UT of JK, Domicile Certificate, not State Subject Certificate, shall be compulsory. The Circular further directs the administrative secretaries to effect change in the related statutes/rules wherever "Permanent Resident Certificate" exists there.
Rules for issuance of Domicile Certificates:
The government of UT of J&K, under the "Central Rule", on 18-05-2020, notified the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020 vide SO 166. The Rules have apparently put the process of new domicile law in UT of JK on fast track basis directing the Tehsildar to issue Domicile Certificates within a stipulated period of 15 days from the date of deposit of application as per the prescribed format appended to the Rules. While Rule 5 lays down "time bound period" of 15 days for issuance of Domicile Certificate by the Tehsildar, as yet Proviso 2 to Rule 5 seems draconian. Any Tehsildar who does neither issue Domicile Certificate nor reject application within the stipulated period of 15 days shall have to face a penalty of 50,000 rupees which will be recovered from his salary by the DC/Deputy Commissioner if the Tehsildar, within 7 days of the DC's direction to him for issuing the certificate passed in an appeal preferred by the applicant before the DC, fails to issue the certificate. The offices of the Tehsildars are already facing huge backlogs of work due to workload. Such coercive and punitive provision will only create extra pressure on their offices to issue the Domicile Certificate as quickly as possible.
The Rules prima facie intend to create a level playing field for both the Permanent Hereditary Residents [of thousands of years] and the new categories of non-locals, non residents, who have been brought within the new law of domiciles. "Domicile status" acquired by a Domicile Certificate is an eligibility condition for seeking public service jobs, admission in educational institutions and appearing in competitive exams with UT of J&K. Any person who is eligible for grant of a Domicile Certificate under the Domicile Orders can apply to the Tehsildar either physically or electronically online for grant of a Domicile Certificate. As the applicant-domiciles can apply electronically, they can also get a certificate online. The new Procedure of Domicile Certificates will now allow West Pakistan refugees and safai karamcharis to apply for jobs in the UT of J&K. (The Hindu dated 18-05-2020)
Some legal points:
The Domicile Orders are "Executive Orders" passed by the Union Cabinet of Ministers under section 96 of the Jammu and Kashmir (Reorganisation) Act, 2019. Under section 96 of the said Act, the central government reserved power to itself to amend & repeal any State Law and/or Central Law if it considered it 'necessary and expedient' in relation to newly formed UT of J&K. The Central Government could do it by making "adaptation & modifications" in these laws with respect to the newly formed UT of J&K as envisaged under section 96 itself. On 18-05-2020, the Government of UT of J&K headed by LG in exercise of powers under section 15 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, (Act No: XVI of 2010) read with Article 309 of the Indian Constitution (which corresponds to proviso to section 124 of the Constitution of Jammu and Kashmir) notified the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020. Again, on 20-05-2020, the LG in exercise of his power under section 23 of JK Board of Professional Entrance Examination Act, 2002, issued Eligibility Notification for entrance tests followed by General Department's Eligibility Circular for educational centers' admission. All the Domicile Orders, DC Rules, related Notification & Circular are all "Executive" Orders. The question arises: can the government make "policy alterations" in age old laws of the erstwhile State of J&K by issuing "Executive Orders" under statutory provisions? Or is it empowered only to issue them for "procedural & administrative matters" connected with bifurcation and conversion of the erstwhile State into two UT/s.
In the light of landmark judgment of Seven Judges Bench of the Supreme Court in In Re The Delhi Laws Act, 1912 case, (1951) on the subject of "delegated legislation", the Legislature (Parliament/StateAssemblies) cannot delegate legislative power to the Executive. In that case, Justice Mehar Chand Mahajan said: "It is a settled maxim of constitutional law that a legislative body cannot delegate its power. Not only the nature of legislative power but the very existence of representative government depends on the doctrine that legislative powers cannot be transferred".
So, in view of In Re Delhi Laws Act,1912 case, the "Executive" cannot directly under section 96 of Reorganisation Act, 2019 nor indirectly under section 15 of the Act of 2010 , or under section 23 of JK Board of Professional Entrance Examination Act, 2002, or under any other statutory provision, alter the very "legislative policy" of "securing" the rights of the residents of J&K in immovable property & government jobs, as clearly envisaged under the related age old erstwhile State Laws.
There are other facts also that need a specific mention here. They are: (1) "legislative vacuum" in the erstwhile State of J&K, now UT, since 21-11-2018 when erstwhile JK State Assembly was dissolved & since then, after initial 6 moths of Governor's Rule , it has been under the President's Rule , right at the time of abrogation of Article 370 on 5th August 2019 and on the date of issuance of the present Domicile Order, Domicile Certificate Procedure Rules & Eligibility Notification. (2) How long President's Rule can be extended under Article 356? Is it as long as the Central Government may decide or there have to be some limitation on it in a "Constitutional democracy"? (3) Unlike UT of Ladakh, the UT of JK has been given Legislative Assembly under the Jammu and Kashmir (Reorganisation) Act, 2019 obviously for making and amending its own laws, if so required. (4) Article 239 & Article 240 of the Constitution apply to UT of Ladakh under section 58 of the JK (Reorganisation) Act, but Article 240 is not applicable to UT of JK under the JK (Reorganisation) Act which means that these "Executive Orders" may not be said to be the "Presidential Regulations" under Article 239. (5) Under section 13 of the Jammu & Kashmir (Reorganisation) Act, 2019, Article 239A of Constitution applicable to UT of Pondicherry has been made applicable to UT of J&K also. Article 239A which provides that Parliament may by law, inter alia, "create….Council of Ministers" for the UT of Pondicherry and now UT of J&K also. Will this section provide justification for the Union Council of Ministers for issuing the Domicile Order under section 96 by resorting to Article 239A & Proviso to Article 240. (6) Article 309 of the Indian Constitution which has been made applicable to UT of JK after abrogation of Article 370 & under which the President has power to direct, inter alia, the LG of UT of J&K to make Rules regarding recruitment and conditions of service, makes the Rules effective only "until provision….. is made by or under an Act of the appropriate Legislature", obviously Legislature of J&K. (7) Section 2 of the Act of 2010 clearly states that any rules made under that Act "shall as soon as may be" after they are made be "laid before each House of the State Legislature". So, as and when, the Legislature of UT of J&K is formed, after reorganisation only State Assembly left, that shall be competent to take a call on the Domicile Certificate Procedure Rules & the Domicile Orders. (8) The mainstream political parties, except ruling party, have raised a valid argument that when the preliminary Acts of J&K Reorganisation & Presidential Order of 2019 themselves have been questioned in a number of petitions pending in the Supreme Court, the ruling party under the principle of "constitutional propriety" is bound to desist from issuing Orders, Rules & Notifications pursuant to them.
To iterate, In Re The Delhi Laws Act, 1912 case, the Legislature (Parliament/Assemblies) cannot delegate legislative power to the Executive. So, to sum up the discussion, it seems that the Orders & Rules cannot alter "legislative policy" behind age old property and job laws of the erstwhile State of J&K. Furthermore, under section 96 of the Jammu and Kashmir (Reorganisation) Act, 2019 itself, the Domicile Orders can be "altered, repealed or amended by a competent Legislature", which, in the context, will mean J&K Assembly whenever formed. Under section 97 of the same Act, the power of the court or tribunal or authority has been defined to be to "construe the law" (Domicile Orders) "in such manner, without affecting the substance" of the Orders. But it is established constitutional law that no Executive Order can put any limitation on power of judicial review of the Constitutional Courts. Even any legislation by any competent Legislature cannot take away or constrain the power of judicial review of Higher Courts. This is established constitutional position.
Two basic factors that constitute domicile:
The domicile is a subject of private international law or conflict of laws where it plays an important role for fixing domicile of a person with foreign background in another country where he has shifted his residence. At the time of partition, this subject gained momentum. (Ref also Entry 27 in Concurrent List of 7th Schedule: "Relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan") From a plethora of judgments of the Supreme Court, it is settled that there are two kinds of domiciles in law. One is "domicile of origin" which a person gets at his birth which remains his domicile, wherever he goes, unless and until he changes it subsequently by acquiring a new domicile which is called a "domicile of choice". These two kinds of domiciles, however, differ in one respect. The "domicile of origin" is received or acquired by operation of law at birth. All Permanent Hereditary State Subjects of erstwhile State of JK are "domiciles of origin". On the other hand, for "domicile of choice", the individual has to prove his "voluntary", "actual removal", to another place accompanied by his "animus manendi". In the context, "new domiciles" moving from other States into the UT of JK shall have to have an intention of "permanent home" within UT of J&K. Two elements of (a) factum (fact) of residence, and (b) animus (intention) of residence are pre-requisite for a 'domicile of choice' under settled Indian law. The intention must "not be fleeting", but "present intention to reside" for an "indefinite period", "forever", "permanently", in the place where domicile has been taken up. (Kedar Pandey (1966); Louis De Raedt (1991); Ram Narain, (1995);Chandigarh Housing Board (2002) The domicile means permanent home where one lives, and which one has fixed as a habitation of himself and his family not for a mere special and temporary purpose, but with a present intention of making it his "permanent home". (D. P. Joshi (1955); Abdus Samad (1973); Dudh Nath Prasad (2000) The proof of "permanent home" (factum) & "intention of permanent residence" (animus) within the erstwhile State of J&K will be always on the claimant of domicile of choice. Will mere Domicile Certificate without proof of factum of actual residence & intention of having permanently lived, on the part of the DC holders, be will enough in the eyes of the law? The "tastes, habits, conduct, actions, ambitions, health hopes, and projects are keys to his [domicile in choice] intention". The factum of residence is a physical fact which means bodily presence of a person as an inhabitant of a place. ( Dr. Yogesh Bhardwaj (1991); Louis De Raedt (1991) ;Dr. Yogesh Bhardwaj ( 1991) ; Ram Narain (1955) ; He should have formed a fixed and settled purpose or deliberate intention to settle there. (Supra Kedar Pandey)
Tailpiece:
These are settled principles of law. Now, applying them to new categories of domiciles of non-locals, non-residents, that is, (1) those having just studied for 7 years and appeared in 10th & 12th examinations in erstwhile State of JK ,as mentioned in category one, (2) children of those mentioned in category three of the Domicile Order and others , the new Domicile Certificate Rules have made it far easier for them to get Domicile Certificates from the Tehsildar concerned on mere production of certificate of education issued by HOD of the educational institution, certificate of service of parent issued by the general department, date of birth certificate, ration card, electricity bills, labour card of a parent. It will open flood gates [Kashmir Life 20-05-2020 [Government has opened floodgates for outsiders to be domiciles of J&K: Congress] for entry of "non-resident" Domicile Certificate Holders into [the age old] government-job-rights and land-property-rights of the Hereditary Permanent Residents of the UT of J&K in future.
--(Concluded)