The Jammu and Kashmir government’s recent issuance of identity documents to West Pakistan Refugees – mainly Hindus who moved to India during Partition in 1947 and settled in Jammu province – has created a controversy that has the potential to plunge the Valley into a fresh bout of unrest. This comes as the region is just about picking up the pieces after more than five months of turmoil.

The state government has been issuing these identity certificates for the past four months following a recommendation from the Union Ministry of Home Affairs.

At the centre of the controversy is the special autonomous status granted by Article 370 of the Indian Constitution to Jammu and Kashmir.

According to the laws of the state, West Pakistan Refugees are not classified as Permanent Residents and therefore cannot avail of the rights a Permanent Resident is entitled to. For instance, they cannot legally own land, seek representation in the state Assembly or local body elections. This has rendered them an isolated group, whose interests are unrepresented at the local level.

The Opposition – both separatists and mainstream political parties – says that the government’s move will erode the state’s special status, and have alleged that the issuance of the identity documents is an attempt by the Union government to change the demography of the Muslim-majority Valley.

Sensing the volatility of the situation, the government clarified that refugees from outside the state were “not entitled to permanent residence” and were only being issued with identity certificates.

United in Opposition

On Friday, the Valley’s separatists, showing a united front, called for state-wide protests against the issuance of the identity certificates.

A statement issued by them said:

“[The] disputed nature of Jammu and Kashmir cannot be brushed aside by any judicial device…We appeal all the sections of the society including Ulmah, Imam’s, religious scholars, intellectuals, civil society, youth, traders and transporters to remain vigilant against these tactics by India and their stooges.”

On December 27, Farooq Abdullah, the president of the National Conference, and likely contestant for the Lok Sabha seat of Srinagar – which was vacated earlier this year by Peoples Democratic Party’s Tariq Hamid Karra – joined the separatists in opposing the issuance of the identity certificates. Speaking at a function in Jammu, Abdullah said “the fact that they [West Pakistan refugees] are not and can’t become State subjects” cannot be denied.

On December 22, the state government had, in a press release, termed the identity certificates controversy a deliberate attempt to “destabilise the situation” in the Valley.

The release, issued by the Directorate of Information, said:

“It seems an orchestrated and misleading campaign has been launched to create an impression that the government is changing the status of the West Pakistan Refugees and they are being provided domicile certificates.”

Legally, domicile is defined as the “place of living” or permanent residence. The identity certificates being issued to the West Pakistan Refugees contains details of their native places in Pakistan, as well as their current addresses in Jammu province, while permanent resident certificates contain details of a state subject’s particulars and their fingerprints.

Who are West Pakistan Refugees?

Millions of people migrated between India and Pakistan during the frenzy of 1947.

According to figures of the Jammu and Kashmir government, of these, 5,764 families migrated from Pakistan’s Sialkot district adjoining India’s Jammu province. They settled in and around Jammu city near the India-Pakistan border.

These people were mainly Hindu refugees belonging to the Scheduled Castes. Seventy years after Independence, they still face an identity crisis: while they are considered to be citizens of India, the Jammu and Kashmir government does not recognise them as state subjects.

According to Labha Ram Gandhi, the president of the West Pakistan Refugee Action Committee, the families now number 19,960.

“The state [of Jammu and Kashmir] has never considered us as their own,” said Gandhi. “The state says they [West Pakistan Refugees] have come from Hindustan, and are citizens of Hindustan and hence it is India’s responsibility to rehabilitate them.”

Gandhi blamed Jammu and Kashmir’s separate constitution for the quandary that West Pakistan Refugees found themselves in, as well as opposition from within the Valley, and the inability of the Government of India to take a firm stand on the issue.

Rekha Chowdhary, former professor of Political Science at the University of Jammu, said the situation of West Pakistan Refugees was peculiar as they face a “kind of statelessness” despite being citizens of India by being “denied certain basic rights that are available not only to the Permanent Residents of Jammu and Kashmir state but also the residents of any other state in India”.

The West Pakistan Refugees, many of whom are from the Scheduled Caste, are also denied the benefits of affirmative action in higher education and government employment – which is available to others classified as members of the Scheduled Caste in the state, and across India. This is a major impediment to the upliftment of the community.

“Since most of them are from the communities listed as Scheduled Castes, they are doubly deprived,” said Chowdhary. “The most crucial issue here is the difficulty in getting a SC [Scheduled Caste] certificate which would have helped them to avail of reservation benefits in Central government jobs and Central forces. Without a proof of domicile they are not able to get the SC certificate.”

What the law says

The state of Jammu and Kashmir has its own Constitution governing state affairs. This constitution largely retained the laws – including the penal code and state notifications – from the era of the Dogras, who ruled Kashmir from the 19th century.

The concept of a permanent resident of the state came up during the rule of Maharaja Hari Singh via a notification in April 1927. The notification and its rules were absorbed into the Jammu and Kashmir constitution of which Sections 6-10 deal with the subject of permanent residents.

As per Section 6, any citizen of India shall be a permanent resident of the state, if on May 14, 1954, that person was a state subject of Class I or Class II, or, having lawfully acquired immovable property in the state, the person has been a resident in the state for not less than 10 years previously.

Class I category of persons mentioned in the constitution are defined under state notification 1-L/84 dated April 20, 1927, issued by Maharaja Hari Singh, as all persons born and residing within the state before the commencement of the reign of Maharaja Gulab Singh (which began in 1820), and those who settled in the state before the commencement of Samvat year 1942 (Gregorian 1886). The second category, or Class II people, are defined as people who settled in the state before the close of Samvat year 1968 (Gregorian 1912), and have since acquired movable property and resided within the state.

However, a third and fourth category of state subjects mentioned in the state notification does not find a mention in the state Constitution. While the fourth category pertains to business interests, West Pakistan Refugees come closest to persons categorised as Class III, which is defined in the state notification as:

“All persons other than those belonging to Class I and II permanently residing within the State, who have acquired under a rayatnama [residence permit] any immovable property therein or who may hereafter acquire such property under an ijazatnama [permission] and may execute a rayatnama after 10 years’ continuous residence therein.”

Further the notification mentions that foreign nationals residing in the state “shall not acquire the nationality of the Jammu and Kashmir State until after the age of 18 on purchasing immovable property under permission of an ijazatnama [permission] and on obtaining a rayatnama [residence permit] after ten years continuous residence in the Jammu and Kashmir State.”

A serving judicial magistrate in the Valley, who did not want to be identified, said that the state only has “the definitions of who is a permanent resident, and not of who can be a permanent resident [emphasis added].”

He added that “it is only the Constitution and the notification that define who is a state subject” and as per the constitution and notification, the West Pakistan Refugees “could fall under Class III definition of a permanent resident”.

Thus, though the identity certificate does not grant any immediate rights to West Pakistan Refugees, the magistrate said, “On the basis of this domicile certificate they could get their rights [of state residents]” as the certificates were “in a way, a rayatnama [identity document], which if followed by an allotment of land to the refugees would mean a sort of ijazatnama [permission]”.

The magistrate added: “After that, there will be no legal justification to deny them state subject status...Even then, we can’t definitely say this will happen. It is finally up to the legislature to approve the issuance of permanent resident status.”

For and against

Gul Mohammad Wani, a Kashmir-based political scientist, said that while there was a humanitarian aspect to the issue of West Pakistan Refugees, the issuance of identity certificates might “open a Pandora’s box and has tremendous potential to inflame the state”.

Wani said that there were “strong perceptions that the Muslim majority character of the state is being undermined”.

He added that the people in the Valley had “genuine fears” of demographic change as there was a “right-wing, Hindu nationalist government in Delhi which is part of PDP [Peoples Democratic Party] here, and is committed to abrogation of Article 370.”

Wani added that the move to issue identity documents viewed along wth the state government’s intention to set up colonies in the Valley for Kashmiri Pandits and armed forces personnel added to the perception that the government was working against the interests of Muslims in the Valley.

“These are issues where public perception in the Valley is that the Hindu interest has gained primacy as you have a Hindu nationalist government in Delhi and also in the state, where the PDP [Peoples Democratic Front] is playing second fiddle,” said Wani.

However, Gandhi said that accusations that the issuance of the identity certificate was a conspiracy to alter the demography of the Valley was unreasonable as the West Pakistan Refugee community barely exceeded one lakh people.

“We ask India and the state that what kind of a state is Jammu and Kashmir where a person can live for 70 years but doesn’t have its state subject status,” said Gandhi.

Gandhi said that while separatists have never questioned the influx of Muslim refugees, they were only opposed to West Pakistan Refugees.

“They [separatists] want discord between Hindus and Muslims,” said Gandhi. “We have lived in Jammu for 70 years, there is no opposition here…It is only in Kashmir, which wants that no outsider from Hindu community should live here. They want to make a Muslim rajya here.”

He added: “It is the government’s decision to give us domicile [certificates]. We don’t want domicile [certificate], we want state subject status.”

Chowdhary said that those in the Valley opposed to West Pakistan Refugees getting identity documents refused to consider the difference between a domicile and a Permanent Resident Certificate, and have also turned a deaf ear to the government’s pronouncement that the purpose of providing the certificate was limited to helping the refugees to avail reservation benefits for Central government services.

Regardless of the humanitarian angle, it is being argued that they be settled elsewhere in the country,” said Chowdhary. “What is being missed in the whole argument is that nothing is being changed in reality. The WPRs [West Pakistan Refugees] without the PRCs [Permanent Resident Certificates] cannot claim any right meant for Permanent Residents. By using a domicile certificate, they cannot make a claim for PRC. In other words, the domicile certificate is neither equivalent to PRC nor a first step that would ultimately lead to PRC.”