J&K government is in midst of yet another controversy following reports that it has started issuing ‘domicile certificates’ to West Pakistan Refugees. Though the government has reiterated that it was only issuing “identity proof ” to the refugees, the separatists smell the move as a ploy to change demography of the state, threatening to launch an agitation

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|| MOHAMMAD AFAAQ SAYEED

              Barely has Mehbooba Mufti’s government come out of five months long turmoil in Kashmir with “United Hurriyat” diluting its protest programs considerably, that she again has to stare at yet another intriguing controversy. During the summer unrest in Kashmir, all her energies and priorities were fixed at bringing some semblance of calm to the streets of Kashmir and start some process of ‘damage control’. She had not even kick started the damage control exercise that her coalition partners who are facing public anger throughout India over ill- conceived decision of demonetization of the Rupee, started rolling out “State Domicile Certificates” to the West Pakistan Refugees (WPR) who migrated to the Jammu region of J & K post Indo-Pak partition of 1947. These refugees whose numbers are not accurately known, (as per vague estimates their population issomewhere between 80000 to 100000) are not state subjects ofJammu and Kashmir. State subject laws of Jammu and Kashmir are rigid in allowing non state subjects into the fold. There were several failed half-baked attempts in the past by various dispensations to grant them some domicile rights. Due to immense opposition from the cross section of people, majorly in the Kashmir division, their case was always put on the back burner. West Pakistan refugees have been fighting for state subject rights since long and even one of the founding fathers of BJP, Mr. Shayama Prasad Mukherji had joined them in their fight. He was one of the vociferous proponents of assimilation of WPR into the fabric of J & K. His primary conviction in fighting their case was purely driven by his extreme right wing Hindu ideology. WPR are Hindus and it serves the cause of BJP to add them to the population of Jammu region as the religion plays a very significant role in the electoral politics of this region. Like Kashmir division, Jammu division is also a Muslim majority region but unlike Kashmir, in the Jammu division, the difference in the percentage between Muslim and Hindu populations is thin.

                Adding WPR to the voter base can disturb the demography driven electoral results. Right – wing Jammu based politicians see in the WPR, their potential voters. At the end of the day it boils down to demographics only, no matter how you would like to twist it. It has almost nothing to do with their plight.

Politics of compulsions

         After PDP – BJP government in J & K became a possibility post 2014 assembly elections, a Common Minimum Program was conceived in a hush – hush manner by some senior leaders of PDP and Ram Madhav of BJP to give shape to the future coalition. In the Common Minimum Program there was a passing reference to the rehabilitation of WPR which fell short of proposing the State Subject status to them. In a way there is a big ambiguity regarding their case in the Common Minimum Program of the BJP – PDP coalition. Soon after the Common Minimum Program was made public, WPR took to the streets of Jammu and protested against the ambiguous reference in the Common Minimum Program for them. SomeJammu based state level Congress leaders also joined them in their protest and termed the cold shoulder reference to them in the Common Minimum Program as “the true face of the BJP”.In Kashmir most of the Congress leaders have chosen to stay neutral on this issue while their counterparts in Jammu have been continuously pitching for the permanent residency status for these refugees.

               This issue is one of the many issues which has polarized the two regions of the state.Most of the politicians from Jammu oppose their colleagues from Kashmir owing to their regional compulsions, no matter if they all belong to a same political party. Most of the national level political parties have their electoral interests in raking up of this contentious issue. But all of the regional parties barring few have nothing to gain politically, but a lot to lose, in casethese refugees are grated“permanent resident’ status of the state. National Conference which never addressed this problem when it was in power, is up in arms against the proposed grant of “Domicile Certificates” to WPR. When PDP was in opposition, it fought tooth and nail battles of words with Congress and BJP over the idea of rehabilitation of WPR. But after assuming power PDP has compromised on most of its stated positions. WPR issue being no exception. On the other hand BJP has not budged a bit on its own stated positions. Even the Common Minimum Program has had all the BJP centric programs getting addressed while, PDP centric programs go into the perpetual political cold storage, one by one. Be that initiation of dialogue with the stake holders of Kashmir dispute or be that CBMs for Kashmir. Let us not talk about ‘talks with Pakistan’ which the Common Minimum Program reflected prominently. Its fate is known to all. In all these subjects, BJP is having the last word and any effort by PDP to please its own constituency in Kashmir, which by now, it has lost completely, is scuttled by the BJP led Central Government of India. All only what Mehbooba Mufti is sticking to, is superficial “power”.

The WPRs have been fighting for state subject rights since long and even one of the founding fathers of RSS, Shayama Prasad Mukherji had joined them in their fight. He was one of the vociferous proponents of assimilation of WPR into the fabric of Jammu and Kashmir and his primary conviction in fighting their case was purely driven by his extreme right wing Hindu ideology.

            That is the last thing which PDP at this juncture can afford to lose, even if that means continuous biting of the dust. Legally speaking Legally, WPRcan’t be grated the state subject status of the state of J & K. They migrated into J & K from a foreign country, which is Pakistan, just like Rohingya refugees have migrated into J & K from Myanmar. Had they come from the Pakistan Administered Kashmir, they would be eligible for the permanent residency of the state of J & K de-facto. But there are still lot of practical and legal complexities involved in the resettlement of those citizens of J & K who migrated to Pakistan post Indo-Pak partition of 1947, thanks to duplicity displayed by various political forces of the Jammu region and ever habitualbelligerent approach of Government of India towards every popular demand emanating from Kashmir. In 1982 State legislature passed an act namely, “Jammu and Kashmir Migrants Resettlement Act” to take care of the rights of such citizens of the state. Under the Act any citizen of J & K who migrated to Pakistan between 1st of March 1947 to 15th of May 1954 could return back to the state of J & K and resettle in the state with full state subject rights.

             But the then governor of J & K, Mr. B.K. Nehru refused to sign the Act and returned the file back citing ‘inconsistencies’ in the legislation. On September 1982, President of India sought the opinion of the Supreme Court of India on legality of the Act. After nearly 20 years of indecision,in the year 2001, the Supreme Court of India returned the Presidential reference unanswered thus prompting the state government to take decision for the implementation of the Act. But again, a Jammu based politician, Mr. Bhim Singh, who heads a regional political party called Panther’s Party took the matter to Supreme Court of India and got the proposed implementation of the Act stayed by the apex court on the pretext of safeguarding the “National Security” of India. Government of India through her attorneys also supported his petition and submitted an affidavit to the court stating that implementation of the Act “endangered national security and public order of the country”. If this Act isimplemented anytime in the future, then Refugees from Pakistan Administered Kashmir can return back to their roots with honour, become permanent residents of the state and reclaim their properties which in most of the cases are under the safe custody of the state.

            Allowing WPR to become citizens of the state of J & K on humanitarian grounds as an exception is not mandated in any law of the state. Even if under political compulsions, state government goes ahead with its plan and grants them domicile rights, then the same can be challenged in the courts of law. However, there is a great risk in resorting to the judicial recourse in this matter. The Supreme Court of India in oneof its recent judgements has explicitly concluded that, “J & K has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India….they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu and Kashmir”, thus opening a Pandora box of interpretations at different levels. In case, anyof the Courts grant WPR, the state subject rights, it in that eventuality is bound to have enormous ramifications on the future of the state of J&K. State Subject laws of the state would lose their fool proof rigidity. Other non-state subjects residing in the state of J & K can refer to such judgements and claim similar status for them. Moreover, there is still a big ambiguity in the exact number of WPR residing in the state. People with vested interests can push bogus refugees into the fray in order to over- populate WPR numbers. It wasalways in the interest of right – wing Hindu nationalist parties of India to dilute the Muslim majority status of the state. Under such circumstances it is easier to do task than the whole “GharWapsi” abhiyaan.

  The moot point

          With Mehbooba Mufti at the helm, BJP is having a free run in the state. While her priorities are fixated at staying in power, this issue has become a political hot potato for her. Her trusted lieutenants are vainly trying to douse the fires by confusing people with mere semantics. In any case, naming, “Domicile Certificates” as“Identity Certificates” has not broken any ice with separatists and other opposing parties. This issue is getting complicated with every passing days. Interested parties in the Jammu region have started to posture on this issue. Government of India too is not interested in watering down of the controversy. Unnecessary rabble rousing by various BJP leaders in the state has emboldened the vested interests in the region. If the aim of the Government is just to issue WPR with simple ID cards, then the whole exercise is wasteful, since most of them possess Voter ID cards, and even Adhaar cards. It is pertinent to mention here that WPR can vote in the Parliamentary Elections of India. If the aim is to grant the permanent residency rights to them, then it is perhaps the knockout punch on the “State Subject Laws” of the state. And if the aim is humanitarian in nature, then without exploring other options at hand, government is unwittingly disturbing the demographic balance of the state, which cannot be justified howsoever noble the cause. West Pakistan refugees in any case are naturalized citizens of India. They enjoy all the rights which any other citizen of India normally enjoys. What they do not enjoy in the state of J & K is not specific to them only.   There are numerous other people who too are not enjoying the “Permeant Residency Rights” in the state. What makes West Pakistan Refugees in this case, specialthen? Perhaps, their religion.

And a bit of unavoidable whataboutry

     If those citizens of the state who migrated to Pakistan post 1947 Indo – Pak partition one fine morning decide to return back to their native land, then what would be the reaction of people to that preposition in the Jammu division? Not any rocket science to guess. And last but not the least, State of Jammu and Kashmir is an internationally recognized dispute. Altering the demography of a disputed region is fraught with seriousrepercussions. Pakistan has already taken a strong exception to these developments on this side of the divide. Any overt or covert move by India at altering the demography of the state of J & K can be reciprocated by Pakistan in equal measure in its part of J & K, thus complicating the dispute further.

Finally!

Letting this issue spill out of control will once again pit Jammu against Kashmir. That can be the replication of Amarnath Land Controversy, owing to which PDP pulled out of the Congress led coalition in 2008 andclaimeda moral high ground. Will BJP do what PDP did to Congress in 2008, if things go out of control in Jammu, remains to be seen? In every situation it is always a win – win situation for BJP.