Last August, in what was expected to be a tectonic shift from a prohibitive and self-defeating status quo, Articles 367 and 370 of the Constitution were amended, the Constitution (Application to Jammu and Kashmir) Order 1954 (“the 1954 Presidential Order”) was superseded and the Indian Constitution was extended in its entirety to the erstwhile state of Jammu and Kashmir. Among other things, these amendments effectively led to the abrogation of the Constitution of Jammu and Kashmir 1956, and repealment of Article 35A of the Indian Constitution that was questionably inserted through the 1954 Presidential Order.
The primary object of Article 35A was fairly straightforward—any existing or future laws passed by the erstwhile state’s legislature that defined its “permanent residents” and granted them special rights, would be immune from being voided on grounds of violation of Part III of the Indian Constitution, namely Fundamental Rights. The criteria for being treated as a permanent resident were spelt out in the erstwhile state’s Constitution, who were entitled to special treatment, including in relation to employment under the erstwhile state government.
Owing to the Constitutional amendments effected last year, which included the reorganisation of the erstwhile state into a union territory, the concept of “permanent resident” had become redundant and most people assumed that this was the end of the discriminatory framework. Perhaps, this may not be the case.On 31 March 2020, with the entire country busy battling the Covid-19 pandemic, the Union Home Ministry notified the promulgation of the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order 2020 (“the First Order”) for the union territory. The First Order, among other things, amended the Jammu and Kashmir Civil Services (Decentralisation and Recruitment) Act, 2010 (“the Recruitment Act”), most notably by introducing the definition of “domicile” for the purposes of recruitment to Level 4 posts, i.e. posts carrying a pay scale of not more than Rs 25,500.
Prior to the First Order, under the unamended Recruitment Act, for appointment to district, divisional and state cadre posts, both gazetted and non-gazetted under the erstwhile state government, only those who satisfied the twin requirements of “permanent residents” and “residents of the district or division” were eligible to apply. A person would have been deemed to be a resident of a particular district or division if he/she had resided in such district or division, for a period of not less than 15 years before the date of applying for a particular post and was actually residing in the said area.
By virtue of the First Order, the very same 15-year residency requirement within the union territory of Jammu and Kashmir has been included as one of the requirements, which brings it at par with the period of residency required under the unamended 2010 Act. However, the saving grace of the First Order was that the application of the domiciliary requirement was limited to recruitment to Level 4 posts.
Unfortunately, reacting to criticisms to the First Order from the usual quarters that lamented at the further dilution of the cherished “special status” of the erstwhile state, within three days of the passing of the First Order, on 3 April 2020, the Union government hastily passed The Jammu and Kashmir Reorganisation (Adaptation of State Laws) Second Order, 2020 (“the Second Order”). Under the Second Order, the domiciliary requirement has been extended to all posts and not merely to Level 4 posts. Ironically, compared to the 15-year period prescribed for domiciliary status for J&K, the period required by most Indian states to become a domicile is between five and ten years.
What is stark is that the Second Order goes against all the ostensible goals set out on behalf of the Union government on the floor of the Parliament on 5 August 2019, when amendments to Articles 367 and 370 were proposed. It was claimed on behalf of the Union government that government posts in the erstwhile state did not attract the best of professional talent from across the country because of the discriminatory nature of the definition of ‘permanent resident’ that existed then. In view of this, the purpose of introducing a domiciliary requirement through the First Order for Level 4 posts, and the subsequent extension of the said requirement to all posts through the Second Order is inexplicable and inconsistent with the position taken by the Centre last year.
The Second Order effectively restores and prolongs for a significant period the status quo ante as it existed prior to the abrogation of Article 35A to the extent that it prescribes the same 15-year period of residency for all government posts without exception.
Not so surprisingly, both Orders have not been received well by those who supported the Union government’s move last year since the expectation was that the Centre would facilitate greater integration of the region and its people with the rest of the Union by doing away with the discriminatory framework of the erstwhile state. Unfortunately, the introduction of an unduly long domiciliary period dilutes the watershed amendments undertaken last year and calls into question the government’s resolve and vision for the union territory and its relation with the rest of India.
J Sai Deepak
Advocate practising before the Supreme Court of India and the Delhi High Court