Decoding Jammu and Kashmir Reorganisation Order 2020

The ethnic and religious composition of the disputed territory of Jammu & Kashmir (J&K) has remained central to the decades-old conflict, primarily because the Kashmir independence movement stands on the premise of Kashmiris’ distinct ethnic and religious identity. Over the years, the state of India has sought to alter the demographic landscape of the area. For the purpose, it has employed means like genocide, ethnic cleansing and settlement of non-state subjects (including citizens from mainland India, migrants and refugees) in the territory. In August 2019, the Indian government led by the Bharatiya Janata Party (BJP) revoked Article 370 and 35A from the Indian constitution and passed the Jammu and Kashmir Reorganisation Act, 2019. Blatantly manifesting BJP administration’s disregard for the Indian constitution, these legislations have practically set the stage for of an altered demographic outlook of the Indian-held J&K, harboured under constitutionally unfit legislative paperwork.

Most recently on 1 April, amidst a state-wide lockdown owing to the COVID-19 outbreak, the BJP-led government issued the ‘Jammu and Kashmir Reorganisation Order, 2020.’ The said order, most prominently, places new domicile laws for the newly created Union Territory of J&K, expanding the scope of J&K domicile provision to non-indigenous populations.

The J&K Reorganisation Act enforced in 2019 and the J&K Reorganisation Order enforced in 2020 starkly contrast with the decades-old constitutional and demographic status of J&K. The J&K Reorganisation Act, 2019 bifurcated the Indian-held territory of J&K into two separate Union Territories (UT) i.e. the UT of Ladakh and the UT of J&K. The relegation of J&K from a state with special status to a separate union territory afforded a greater direct control on the territory to the central BJP-led government via the appointment of Lieutenant Governor. It practically limits the autonomy of the state legislature of J&K that was awarded to it via now ceased Article 370 of the Indian constitution.

The J&K Reorganisation Order was enforced with an immediate effect on 1 April 2020, under the mandate provided by Section 96 of J&K Reorganisation Act, 2019. It disempowers the state legislature of J&K from ascertaining ‘permanent residents’ and their right to employment, as was provided under Article 35-A of the Indian constitution.

In particular, Clause 3A and Clause 5A of the order make up for the region in utterly different in its demographic outlook. While before August 2019, the permanent residence of J&K was specific to the indigenous people of J&K, the new order seeks to grant UT of J&K ‘domicile’ to a wide range of Indian citizens under Clause 3A of the order. These include persons residing in the territory for 15 years, persons having studied in the area for seven years and having appeared either in Class 10th or 12th examination. Other categories include children of central government officials, Indian Administrative Services (IAS), other Centre-led autonomous entities and children of residents of J&K residing outside J&K fulfilling any of the given conditions. Moreover, registered migrants also qualify to be J&K domiciles. Furthermore, clause 5A allowed the right of employment into gazetted and non-gazetted class IV jobs to J&K domiciles. The order has amended the J&K Civil Services Act by substituting the term ‘permanent residents’ with ‘domiciles of J&K.’

The hastily implemented order received an equivocally bashing response from political parties of J&K. The political establishment, including the right-leaning newly emerged J&K Apni Party deemed the order as irresolute. The People’s Democratic Party demanded the order to be rolled back whereas the All Parties Hurriyat Conference leader Syed Ali Gillani urged Pakistan and the international community to take note of the demographic change in the making. The left-leaning political establishment in erstwhile J&K state views the amendment as cosmetic in nature that overlooks the core concerns.

Following the political backlash, on April 3, the Indian government issued an amendment in the reorganisation order whereby, most importantly, all gazetted and non-gazetted jobs were reserved for the UT of J&K domicile exclusively. However, the amendment largely ignores the apprehensions surrounding the domicile laws aimed at altering the demography of the erstwhile J&K state.

BJP’s policies for implementing its ‘Mission Kashmir’ have failed to offer any legal standing, so far. This applies to the revocation of Article 370 and 35A. Likewise, the J&K Reorganisation Act, 2019 also lacked compliance with the constitutionally mandated procedure that requires the Indian President to refer the reorganisation bill to the state legislature for alteration or creation. The recently issued reorganisation order ironically draws its legal precedence from the J&K reorganisation order. In terms of international law, the order most prominently violates the 4th Geneva Convention. The Article 49 of which stipulates that, “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The tall-claimed development-motivated policies of the BJP government in the disputed territory of J&K entail larger political, economic and social consequences in the disinterest of indigenous Kashmiris. Indian designs of fostering Hindu settlements in the internationally disputed territory of J&K surfaced well in November 2019, when the Indian Consul General in New York Sandeep Chakravorty was recorded saying that an Israel-modelled settlement could be undertaken in J&K conveniently.

Until late 2019, the state of Kashmir possessed the legal mandate to preserve its demography and to entitle the rights of employment, land acquisition and political representation to indigenous Kashmiris alone. The recent legislations will effectively leave Kashmir’s indigenous population politically paralysed and socially diffused. An expansion in the mandate of Kashmiri domicile, in the longer run, shall demean the indigenous population’s political representation by granting voting rights to non-indigenous people in the local legislative election. It should also entail a cut in the locals’ share in employment opportunities.  At societal level, the order is all set to dilute the identity, history, and culture of the people of Indian-held Kashmir. As of now, the central government has already declared around 300,000 Hindu refugees as the domiciles of UT of J&K. Currently, around 600,000 security personnel are deployed in the area whereas migrants amount to some 700,000.

While concluding, one recalls Niccolò Machiavelli’s political treatise dedicated to Lorenzo de’ Medici: if the prince is to govern cities or principalities which lived under their own laws before they were annexed, he ought to ruin part or full of it or disperse the people, for a united people will ruin the prince instead. While the Indian state may have adopted a strategy quite similar to the one suggested by Machiavelli, ironic is the fact that the world has traversed much ahead of the Renaissance era, with individual liberty and human rights being the dominant contours of contemporary times.

Maryam Raashed

Maryam Raashed is a former Research Assistant at the Centre for Strategic and Contemporary Research. She is a graduate of International Relations from National Defence University, Islamabad.

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