The requirement of permanent resident certificates in Jammu and Kashmir is derived from the concept of “state subject” under the Dogra rule prior to 1957, therefore until then, the permanent residents of the state were actually known as the state subjects. The most recent classification of “state subject” was established by means of Notification No. 1-L/84 issued by Maharaja Hari Singh on 20th April, 1927. In this notification,

“The term “State Subject” means and includes -

Class I.—All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur, and also person who settled therein before the commencement of samvat year 1942 and have since been permanently residing therein.

Class II.—All persons other than those belonging to Class I who settled within the State before the close of samvat year 1968 and have since permanently resided and acquired immovable property therein.

Class III.—All persons other than those belonging to Class I and Class II permanently residing within the State, who have acquired under “rayatnama” any immovable property therein or who may hereafter acquire such property under an “ijazatnama” and may execute “rayatnama” after ten years’ continuous residence therein.

Class IV.—Companies which have been registered as such within the State and which being companies in which the Government are financially interested or as to economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been declared to be State subjects.” (Sharma, 2004)

In addition to this, there were four notes added, regarding the inclusion of new state subjects into the kingdom. These notes discussed the classification and hierarchy of the system, stating that those who are Class II citizens, for example, will remain in the same class if they are born to a Class II citizen, and cannot qualify to be a Class I citizen. The notes also state that the subjects get preference in order of class, and that widows remain as state subjects as long as they are permanent residents of the state.

In another notification issued by the Maharaja, attached as Appendix C, it states that foreign nationals can achieve the status of state subject by means of ownership of property. This means that if they have held property in the state of Jammu and Kashmir for ten years of continuously after turning 18, they are eligible for citizenship under the princely state of Jammu and Kashmir, under the claim of “ijazatnama” (a written order/permission) by the Political Department of the government. This means that though the concept of permanent residency was extracted from the rules of Hari Singh, they were in no way similar. Under his government, those who were not state subjects, but fulfilled the rules and guidelines of the state were eligible for citizenship after continuous residence in the state for ten years.

When we review the text of Article 35A in comparison to these two notifications, the article completely excludes Class III and Class IV of the state subjects. In Section 6 of Part III, titled “Permanent Residents” in the Constitution of Jammu and Kashmir, it states

“(1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954-

(a) he was a State Subject of Class I or of Class II; or

(b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date.

(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State.

(3) In this section, the expression "State Subject of Class I or of Class II" shall have the same meaning as in State Notification No. 1-L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated the twenty seventh June, 1932.” (The Government of Jammu and Kashmir, 1957)

Therefore, in this text, we see that there is no leeway given to non-‘Permanent Resident Certificate’ holders to gain residency in the state at any cost. This is problematic because this clause excludes the West Pakistan Refugees on all accounts. Firstly, the refugees entered the state of Jammu and Kashmir in 1947, and could not have possibly held property in the state prior to this (1944 – 1954 was the last ten years) or have precedented the gravity of the partition and bought land in advance. Additionally, they were also not subjects of the state (of any class) prior to this, as before 1947, they were ordinary residents of West Punjab, which was a part of India. We also see that the refugees from the part of Jammu and Kashmir occupied by Pakistan were given citizenship based on their prior residence, but the West Pakistan Refugees, who were in the same state as these people, were ignored.

Though we do not know if this was a deliberate move on the part of the Government, or if Sheikh Abdullah would have remained true to his word and granted the West Pakistan Refugees citizenship had he not died so soon (Kaul & Sagar, 2017, p. 16), we can infer that since then, the government has systematically excluded them from the state machinery.

The researcher also finds it necessary to elucidate that the Permanent Resident Certificate is in no way similar to the Domicile Certificate, which is considered its equivalent in other states. This certificate does not limit the rights or have the power to deprive any citizens of any fundamental rights, and is simply a proof of prolonged residence of a state, due to which domicile holders can avail of certain benefits in their respective state. The Domicile Certificate can be acquired in a non-hereditary manner, unlike the Permanent Resident Certificate.

The West Pakistan Refugees are not allowed to own, buy or sell any property in the state of Jammu and Kashmir. Not only are there a plethora of land legislations that prevent the transfer of land to non-‘Permanent Resident Certificate’ holders, there are also legislations in place to allot land to the displaced persons of Pakistan-occupied Jammu and Kashmir. This has not only left the community feeling alienated and discriminated against, but also prevented them from establishing any firm modes of income. In the state of Jammu and Kashmir, to buy agricultural land, to establish a business or even to renovate existing buildings, one must be a Permanent Resident Certificate holder. Since these people are not eligible for employment under the government, one would assume that the only other viable alternatives are agriculture and private business. This is also not an option for these people, leading to a general lack of employment in their community.

Due to this, as seen in the data analysis, most of the community are forced to be daily-wage labourers or domestic help. Though they till the land that the government allowed them to occupy in the border villages in 1947 (evacuee property and state land), they are legally required to pay rent on this land, as it belongs to the state. The respondents stated that they had stopped paying rent, as the government anyway required them to pay utilities (such as water, electricity) and had done nothing to fix broken houses or improve the land. As under Section 9 and 9-A of the J&K State Evacuees (Administration of Property) Act, Svt. 2006, they are not permitted to renovate property on this land, and this renovation is a legal responsibility of the government. Section 10-A of the same also states that the government can revise the rent on this land whenever they feel necessary. Thus, we see the exploitation of these people, who are subject to the whims of the government.

The people have a lot of insecurity when it comes to their land. According to Labha Ram Gandhi, only 10 to 12 per cent of West Pakistan Refugees have land (Gandhi, 2017), and even this land does not legally belong to them. They live in the constant fear that if they do something to antagonise the government, it will take away what little land they have today. In addition to this, the refugees from POJK (1947 onwards) and the Chhamb refugees (of 1965) were allotted land by the government of Jammu and Kashmir, even though a number of them came after the West Pakistan Refugees, but no such concessions were given to them (Wadhwa Commitee, 2007). This also means that the state is permitted to acquire the land given to them without providing any sort of compensation or alternative land, which would leave them homeless. Attached under Appendix D are photographs depicting the condition of Chak Jaimal, a village that the researcher visited. The condition of the homes and the livestock was appalling.

Another problem that has emerged is that in 1947, the number of families that migrated were somewhere around 5000. Today, there are 20,000 families of these refugees, but the amount of land allotted to them has remained the same. No new land has been given to them, but their population has grown by 4 times.

According to the report of the 2014 Joint Parliamentary Committee, “They have the right to vote in Parliamentary Elections but they do not enjoy voting rights to the State Assembly and Local Bodies. There is no provision of separate citizenship for the State.” (Joint Parliamentary Committee, 2014). The West Pakistan Refugees are not permitted to vote in the elections for the State Legislative Assembly or have any sort of representation in the same. They are also barred from holding Panchayat elections, even though there are entire villages in areas like Hiranagar and R.S. Pura that are occupied by them. These measures are imposed by Section 12(b) of the J&K Representation of the People Act (1957) and Section 6 (1) (a) of the J&K Panchayati Raj Act (1989), passed in the Jammu and Kashmir Legislative Assembly (Nargotra, A Study of West Pakistan Refugees in the State of Jammu and Kashmir, 2012, p. 87).

The lack of voting rights has led to lack of political will in the government towards these refugees. They have fallen into a vicious cycle, where because they have no representation, the government does nothing to help their situation, and until their situation is improved, they cannot get representation. Therefore, these people do not have the right to vote on policies that directly affect them, which goes against the spirit of democracy and the spirit of our constitution.

Labha Ram Gandhi also told the researcher that in the past, when they approached the government for voting rights and Permanent Resident Certificates, the then-President of the West Pakistan Refugee Action Committee overestimated the number of people of the community, therefore antagonising the government towards them. This is because the government was alarmed at the number of people who would suddenly become a part of the vote-bank, and did not want to risk dilution of their votes (Gandhi, 2017).

As the text of Article 35A clearly states that the government can impose restrictions upon non-‘Permanent Resident Certificate’ holders in the field of employment. This, along with the inability to acquire immovable property, has rendered these people with few to no options for employment. These people cannot start any business, hold any government jobs and only practice subsistence agriculture on the small plots of land that they do hold. A previous option for these people was to join the Army or other Central Defence Forces, but as of recently, an order from the government requires them to have a Domicile Certificate to be considered eligible. Since the state of Jammu and Kashmir does not have the concept of a domicile, and the closest thing is a Permanent Resident Certificate, now these people even require the Permanent Resident Certificate to join these forces. Due to the lack of Permanent Resident Certificates, the government also prohibits them from availing of Central Schemes, such as MNREGA and other employment schemes.

In terms of private employment, only few of them have the qualifications to be privately employed. In places like shops and homes, where most of them work, often owners choose to pay them differently from Permanent Resident Certificate holders, as they are aware of their desperation and poverty. This is not only exploitative, it reinforces the notion of them being different or “outsiders”. In order to be employed as a professor in a government university, one also requires a Permanent Resident Certificate. Due to these restrictions, the West Pakistan Refugees are therefore limited in their career options, which is a violation of Article 19 (1) (g) of the Indian Constitution.

In the state of Jammu and Kashmir, due to the provision of Article 370, the government is not constitutionally required to follow certain rights accorded to citizens under Part III of the Indian Constitution. For example, the right to education does not reach the West Pakistan Refugees. Due to this, they are expected to pay fees in government schools, regardless of their economic status and poverty. Not a lot of these people can afford the fees to schools, and education of these becomes compromised. They are not allowed to avail of Central Government’s concessions, like Beti Bachao, Beti Padhao, in this sphere as well.

The higher education they get is limited to non-professional courses, and for enrolment in professional courses like medicine and engineering in a government institution, a Permanent Resident Certificate is required (Wadhwa Commitee, 2007). They also cannot afford the exorbitant fees that private universities charge their students, and therefore lose out on better-paying jobs.

Another factor that came up was the lack of employment opportunities after employment. As corroborated by Labha Ram Gandhi, the President of the West Pakistan Refugee Action Committee, the younger generation see their educated parents unable to avail of any employment, and begin to lose faith in education as a salvation. One of the respondents told the researcher that their children say, “Father, you are so well-educated and are still unemployed. Why should we waste our time with studying, when we can start looking for work now?” There is a high rate of disillusionment among the community, especially from the younger generation.

The Jammu and Kashmir state government requires that anyone who wishes to avail of reservations must have a Permanent Resident Certificate, as under Article 35A. This is, therefore, institutionally-sanctioned discrimination against the people of the Scheduled Caste community living as West Pakistan Refugees. 80 per cent of the community, therefore, not only suffers discrimination due to their status as West Pakistan Refugees but also on the basis of their caste, especially as caste-discrimination is prevalent in the rural areas, where most of the families of the West Pakistan Refugees live.

Another issue is the issuance of the Below Poverty Line certificate. As with many other government documents of the state, this, too, is linked with the Permanent Resident Certificate. Due to this, though around 80 per cent of West Pakistan Refugees are below the poverty line, they cannot avail of the ration benefits of the same. A few years ago, an incident occurred where the government made ration cards valid only for Permanent Resident Certificate holders. It was only through the efforts of the West Pakistan Refugee Action Committee that this could be undone.

The sense of disenfranchisement and alienation that the West Pakistan Refugees feel is similar to that of communities where insurgency, terrorism and violence thrive. Though the community has remained peaceful until now, they vocalised their desires to take up arms to get the attention of the government of Jammu and Kashmir. Though this is simply an emotional and rage-filled statement, it elucidates of the kind of anger that the community feels at the way they are being treated.

The government’s attitude towards the community is so negligent that it does not even have a proper record of the community. When Labha Ram Gandhi became the President of the West Pakistan Refugee Action Committee, he began to collect records of the West Pakistan Refugees, and gave them a proper system of identification. Some samples of this form are attached as Appendix E. These forms are the only documentation available of the West Pakistan Refugees, and the work has been completely funded and carried out by West Pakistan Refugee Action Committee, even though maintaining a census is actually the duty of the government.

References

Gandhi, L. R. (2017, December 27). The Views of The President of WPR Action Committee of 1947. (S. Rao, Interviewer)

Joint Parliamentary Committee. (2014). ONE HUNDRED EIGHTY THIRD REPORT: Problems being faced by refugees and displaced persons in J&K. New Delhi: Rajya Sabha Secretariat.

Kaul, J., & Sagar, D. (2017). Article 35A: Face the Facts. New Delhi: Jammu and Kashmir Studies Centre.

Nargotra, S. (2012). A Study of West Pakistan Refugees in the State of Jammu and Kashmir. In R. Chowdary, Border and People - an Interface (pp. 79-110). Centre for Dialogue and Reconciliation.

Sharma, G. D. (2004). JAMMU AND KASHMIR PERMANENT RESIDENTS (DISQUALIFICATION) BILL, 2004 IS UNCONSTITUTIONAL. Supreme Court Cases - CONSTITUTIONAL LAW. Retrieved February 12, 2018, from Eastern Book Company: http://www.ebc-india.com/lawyer/articles/2004v6a3.htm

The Government of Jammu and Kashmir. (1957, January 26). The Constitution of Jammu and Kashmir. Retrieved February 11, 2018, from Jammu and Kashmir Legislative Assembly: http://jklegislativeassembly.nic.in/Costitution_of_J&K.pdf