Domicile Law And Kashmiri Exceptionalism — We Respect Rights Of Women, Dalits In Rest Of India, Why Not In Kashmir As Well?

The union government recently issued the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order, 2020, through which it amended the Jammu and Kashmir Civil Services (Decentralisation and Recruitment) Act 2010.

This amendment substituted the term “permanent residents” with “domiciles of UT [Union Territory] of J&K".

According to a report in The Hindu, the order defines domiciles as anyone

• who has resided for a period of 15 years in the UT of J&K, or
• who has studied for a period of seven years and appeared in Class 10th/12th examination in an educational institution located in the UT of J&K, or
• who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants), or
• government employees who have served in J&K for a total period of 10 years, or
• children of such residents of J&K who reside outside J&K but fulfil any of the conditions

Crucially, this amendment will allow West Pakistan refugees and children of women who married non-locals to apply for jobs in J&K. The power to issue domicile certificates has been vested in the tehsildar (revenue officer).

Contentions Against The Order

The Order has attracted criticism from various quarters, including the Congress party, who are calling it discriminatory, an insult, illegal, unconstitutional etc.

Let’s summarise these contentions:

• The domicile amendment was made by exercising the power vested under the J&K Reorganization Act 2019 which has been challenged in a number of petitions before the Supreme Court of India
• The law is motivated by a desire to subdue Kashmiris
• The law will disenfranchise Kashmiris, lead to demographic change, militarised settlements, dispossession and alienation of land like in Israel
• The law is a major departure from an established body of historical precedent, law and jurisprudence which recognised the right to define “permanent residents”

Do the contentions hold?

First, the constitutional legal aspect. It is true that the new domicile law flows from the exercise of power under the J&K Reorganization Act 2019 which has been challenged in the court, but the law has only been challenged, not set aside by the court.

Many legal experts have discussed how the Reorganisation Act is constitutional. The section it repealed was titled ‘temporary’ — expressing the original intent of the lawmakers for complete integration of the Kashmir state with India.

The historical precedent regarding this is also clear. The Reorganisation Act wasn’t a sudden occurrence based on sensibilities (the “RSS-BJP ideology”) of the current ruling dispensation. The major steps for integration of Kashmir with the rest of the India had already been taken by the erstwhile Congress governments.

Big or small — these steps make it amply clear that the policy of the Indian state has always been in the direction of original intent of the lawmakers who inserted Article 370 in the Constitution.

Article 370 needs to be viewed in the right historical context. All postcolonial nations face challenges at their boundaries and the uphill task of national territorial integration.

India integrated different kinds of territories — the princely states in return of the promise of pensions to the rulers; the tribal areas in return of special protection; Puducherry from the French by making it a union territory, etc.

The intent behind these arrangements was always clear. They could never come at the cost of national unity and integrity.

Just like the Constitution of India, a court (as it has in the past, say, on AFSPA) will take into account the specific challenges faced by a postcolonial state in deciding the constitutionality of the instruments used by it for national integration.

The demotion of the status of Kashmir from a state to a union territory is unprecedented, but being a union territory with legislative assembly isn’t. The sole question is whether a reasonable nexus exists between why and what.

Between the genocide of Kashmiri Hindus; being a border state surrounded by two hostile nations, Pakistan and China; and a hotbed of terrorism, a reasonable nexus does exist.

However, the legality of the law isn’t the real issue here. The real issue is Kashmiri exceptionalism.

The Constitution of India gives rights to every citizen to freely move, reside and settle in any part of the country. Exceptions do exist (like inner line permit system) but for very specific reasons and in a limited manner.

If these constitutional rights didn’t disenfranchise Telegus, Tamils, Kannadigas, Odias, Bengalise, Assamese, Bihari, Rajasthani or Gujarati people, why would they disenfranchise Kashmiris?

If we respect the rights of minorities, women, Dalits, all the same in the rest of the country, why not in Kashmir?

It is silly to call the latest law as being motivated by a desire to subdue Kashmiris when such laws have been an inevitable part of the modernising projects to remove barriers in free movement of people, trade and commerce.

Kashmir by no means is an exception. It is a border state with a non-Hindu majority, so is Punjab. It has had a blend of Hindu-Muslim culture, so has Uttar Pradesh. It is an erstwhile princely state, so is Hyderabad.

The only thing that makes Kashmir unique is that it is a Muslim-majority state.

(It is also important to remember that, as Brahma Chellaney points out, ‘Muslim majority’ is not enough to describe the territory of Jammu and Kashmir — Kashmir is majority Muslim, Jammu is majority Hindu, Ladakh is traditionally Buddhist, Gilgit-Baltistan is predominantly Shia Muslim)

But being a Muslim-majority state cannot be a reason for exceptional treatment, and if it is, where does it leave the Muslims in the rest of the country?

If Muslims in rest of the India can co-exist with others peacefully, then why not in Kashmir?

Acceptance or rejection of ‘unity in diversity’ — this is where Kashmir becomes a civilisational issue.

In Muslim-majority West Pakistan, Hindus dwindled from 15 per cent of the population in 1947 to mere 1.3 per cent in 1951 and were 1.6 per cent in 1998.

In Muslim-majority Bangladesh, they dwindled from 13.6 per cent in 1974 to 9.5 per cent today (In India, the Muslim population increased from 9.8 per cent in 1951 to around 15 per cent today).

From both these countries, news reports of intense persecution; Hindu women being abducted, raped, forcibly converted come regularly.

In Muslim-majority Kashmir, the Hindus were brutally murdered, raped and told to either convert to Islam or flee to save their lives but leave their women behind — Kashir banawon Pakistan, Bataw varaie, Batneiw saan.

Kashmir is a hard punch of reality in the face of those who argue that the anxieties of non-Muslims in India regarding radical Islam and Islamic expansionism are cooked-up conspiracy theories of the Hindutva Right.

As a commentator once said, Kashmir showed Hindus just how easily they could be violated, killed and thrown out of their homes without as much as a sigh.

The non-Muslims in the Valley continue to face abuse. Their children grow up hearing that they are kafir, are bullied relentlessly, and made to feel like a second class citizen just because they are not Muslims.

And this is what Kashmiri exceptionalism has always been — an exclusivist, Islamist, supremacist movement.

“Kashmir mein agar rehna hai, Allah-ho-Akbar kahna hoga”

(Any one wanting to live in Kashmir will have to convert to Islam)

“La Sharqia la gharbia, Islamia! Islamia!”

From east to west, there will be only Islam

“Musalmano jago, Kafiro bhago”,

(O! Muslims, Arise, O! Kafirs, scoot)

“Islam hamara maqsad hai, Quran hamara dastur hai, jehad hamara Rasta hai”

(Islam is our objective, Q’uran is our constitution, Jehad is our way of our life)

“Pakistan se kya Rishta? La Ilah-e- Illalah”

(Islam defines our relationship with Pakistan)

Dil mein rakho Allah ka khauf; Hath mein rakho Kalashnikov.

(With fear of Allah ruling your hearts, wield a Kalashnikov)

“Yahan kya chalega, Nizam-e-Mustafa”

(We want to be ruled under Shari’ah)

“People’s League ka kya paigam, Fateh, Azadi aur Islam”

(What is the message of People’s League? Victory, Freedom and Islam)

The funny thing is that the Kashmiri exceptionalists have made no attempts to prove otherwise. It is only the politicians and intellectuals sitting in Delhi that proposed ‘Kashmiriyat’ — peaceful coexistence of Muslims in Kashmir with others — as a viable alternative.

India is probably the only democratic state in post-World War II era to suffer a genocide of the members of the majority community, that too four decades after suffering the carnage of Partition based on the demand of a separate Muslim homeland.

If one imagines the reaction of other states, say, United States, in a similar situation, the incredible restraint of the Indian state and the majority community becomes clear.

Those calling the recent domicile laws an example of the Indian state’s homogenisation project miss the irony in defending the Sunni-majority homogenisation project that genocides Kashmiri Hindus; replaces Valley’s syncretic/Sufi traditions with Wahhabi/Salafi culture; bans Shias from carrying out Muharram processions; attempts to change demography by settling Rohingyas in Buddhist-majority Ladakh; doesn’t recognise tribal or minority rights; allows Dalits to have government job only as sweepers; and discriminates against women in property rights.