Jharkhand has been
witnessing the one of the most central debates since its inception over a
decade and half. The debate over the domicile policy of Jharkhand has its roots
since the struggle for a separate state which is deeply rooted with social
fabrics of the state. It escalates the social divide of insiders and outsiders
in the state. The first Chief Minister of Jharkhand, Babu Lal Marandi, during the
National Democratic Alliance’s (NDA) rule, in September 2001, introduced the state’s
domicile policy. The state, then, turned into turmoil and he had to resign in
its aftermath. Since then every
government in power tried to introduce the domicile policy but due to lack of
political consensus couldn’t succeed. With new BJP government in power the
issue has resurfaced once again. Chief Minister, Raghubar Das had started
consultation process with different stakeholders in the state including
political parties, experts, activists and civil society organizations. The CM
assured to ensure the policy in place within couple of months. Jharkhand, Chhattisgarh
and Uttarakhand were made by respective state reorganization acts. They are identical to each other and got no
reference for a domicile policy. The state's policy related to domicile status
is a policy matter and heavily influenced by local politics.
Issues of controversy
The recent debate
arises out of the cutoff date for being the permanent resident of the state. In 2001, during the National Democratic
Alliance’s (NDA) rule, the state’s domicile policy held that only tribals holding
land records of 1932 would be considered as permanent resident of Jharkhand and
would be given preference in government jobs. It was challenged in and was
struck down by the Jharkhand High Court in 2002. The idea of domicile based on
land records is problematic and counterproductive. It does not incorporate the
landless population and many tribal groups such as the Pahariyas of the
Rajmahal hills who do not own land. Others will also lose their domicile
considering the absence of land records and landownership. Different political
parties suggest different criteria. The Jharkhand Dishom Party insists on local
language and residence in the state for a long time while Jharkhand Bachao
Andolan suggested that name in census of 1952 should be given the preference.
While some suggests the date of inception of state as the cutoff date for
domicile while other argued that at least 15 years before the creation of state
should be the minimum cutoff date.
Social divide
The divide between
insiders and outsiders and the criteria which makes one an insider or an
outsider is the crux of the controversy.
Jharkhand is considered to be the residence of local indigenous tribal
people. They are claimed to be the original inhabitants and believed as moolvaasi of Jharkhand. Tribal led the Jharkhand movement. Over centuries, 'outsiders' have oppressed
the native population. In the last two centuries, the exploitation of mineral,
forest and human resources of the region have com-pounded the oppression. The
immense mineral wealth of Jharkhand has been used by outsiders without adequate
compensation to the people of the region.[1]
The proponent of the internal colonialism argued that internal migration in the
background of unequal development created the problem of internal colonialism
which is clearly manifested in Jharkhand. [2]
Founder of Jharkhand Movement Jaipal Singh, throughout his life maintained that
tribe-non-tribe division was a census manipulation and 90 percent of the people
of Jharkhand would be adivasis. Tribals have been
historically oppressed and denied their rights. Outsiders have been usurping
the job opportunities for long time. When
major industries were built in Jharkhand large number of outsiders primarily
from north Bihar received jobs. Though they too were from the same state, the neighboring
locals were overlooked. Out of a total of 4,284 employees in the Heavy
Engineering Corporation, at Ranchi, there were only 335 tribals (Sharma 1990:
285).When in 1971 coal mines were nationalized and job conditions were sure to
improve, in a single week thousands of telegrams were sent from Dhanbad
district to Ara, Balia, and Chhapra
informing that jobs were available. It was believed that 50, 000 Jharkhandis lost
their jobs at this point of time[3].
Tribal must be given their due to cope with historical injustice and
discrimination.
There is another view
also. Proponent of constructivist model contrary argued that tribal-non-tribal
dichotomy is unreal and Jharkhand society is non-homogenous and dynamic. More
than 70 percent of the people living in the Jharkhand are outsiders considering
that tribal population constitutes 26.2 percent of its population according to
the Census 2011. Well before the coal mines came up in Jharkhand in early 20th
century non tribal families had migrated to the Jharkhand. Moving to India
during Partition in 1947, about 2,000 Hindu and Sikh families had settled in
Jharkhand.[4]
According to the 1961 Census in Jharkhand, the number of Bhojpuri and Maithili speaking
people were 1, 13,000 and 16,000, respectively[5].
In the 19th century when Jharkhand was a part of Bengal large number of Bengali
speaking had migrated to the Jharkhand. Demography of Jharkhand, thus, makes
the state dynamic and insider and outsider divide unreal.
Legal provisions
The concept denotes
"the place of living", or more precisely a permanent residence.
Domicile "is the legal relationship between an individual and a territory
with a distinctive legal system which invokes that system as his personal law."
Although the notion which lies behind the concept of domicile is of
"permanent residence" or a "permanent home", yet domicile
is primarily a legal concept for the purposes of determining what is the
"personal law" applicable to an individual and therefore, even if an
individual has no permanent residence or permanent home, even then he is
invested with a "domicile" albeit by law or implication of law[6]
There are three main
categories or classes of domicile, A) Domicile of Origin, B) Domicile of
Choice, C) Domicile by law. The "domicile of origin" is what is
attached to person by birth whereas the domicile of choice is what is acquired
by residence in a territory subject to a distinctive legal system with the
intention to reside there permanently or indefinitely. The third category of
domicile would be "Domicile by operation of law". Uttarakhand High Court
in Naina Saini case in 2010 revisited the law relating to domicile of a person
to declare that there is no separate domicile for each State and there is only
one domicile for the entire country. Earlier in Pradeep Jain case in 1984
Supreme Court declared that Article 5 of the Constitution is clear and explicit
on this point and it refers only to one domicile, namely, "domicile in the
territory of India.[7] Jharkhand
state was formed in November 2000. The new government reasoned that the 1982
Circular of Bihar government was still in force in Jharkhand and they need not
formulate another domicile policy for initiating affirmative action. Its
notification was reissued in September 2001 changing the state name which
defines a local person on the basis of the last survey of the land record and
they would be given preference in class 3 and 4 government jobs. This
notification was challenged in Jharkhand High Court and in famous Prashant
Vidyarth case in 2002 the High Court unanimously struck down the notification
of the Jharkhand government — adopted from a Bihar government circular. —The
five-judge bench said that the definition of a local resident should not be the
length of time he has lived in the state but preference in jobs should also be
given to those who held similar qualifications. [8]
High Court made it clear that under certain provisions of the Constitution
affirmative action, even on the basis of residence, is allowed. The bench
rejected the Jharkhand government orders because of several technical lacunae,
particularly in the definition of the term “local resident”. [9]
While in August 2012,
the Nainital High Court had declared that the legitimate cut-off date should be
the date of formation of the new state; any person living in Uttarakhand since
the day when the state was formed was entitled to get domicile certificate. The
order was challenged and on 25 May 2013 a judicial bench of the high court
changed the cut-off date to 1985, exactly 15 years before the date of formation
of the state. In the appeal that followed in March 2014, the Supreme Court
upheld this decision of the judicial bench, thus creating a landmark judgment
for domicile policy within India. Drawing distinction between simple and
permanent residence, the courts mandated 15 years previous to state formation
as another requirement for getting domicile status. These judgments of
Ranchi and Nainital high
courts and the Supreme Court dispel the popular notion that local domicile
concept is fallacious in India because every citizen has the right to move
freely, reside, and settle in any part of the country but domicile status can be used to grant a
privilege only if there is some justifiable context.[10].
Way forward
It is clear from the fact that tribal in the state have been
facing the historical discrimination and in justice. They must be given their
due. Jharkhand is a multi-cultural dynamic society. The non-tribal residents
constitutes the nearly three-fourth of the state and they have also contributed
equally in the development of the state. Citizenship and local domicile status
are two different things. The domicile status is meant to provide the
affirmative action for local resident particularly in government jobs etc. Domicile
policy must be designed to give the preferences for tribals but at the same
time it should not be exclusionary in nature. The cutoff date for being the
permanent resident of the state should be inclusive in nature so that it can
assimilate the heterogeneous character of the state. The people living from decade and more
shouldn’t be deprived off their rights. Domicile issue has created a divide
among the society. Who is the original resident of Jharkhand is quite a
difficult question. Since Jharkhand was part of Bihar, large numbers of people
from Bihar have migrated to the different part of Jharkhand in search of
livelihood. Migration was the means to generate the livelihood. Prior to the
nationalization of coal field tribal were reluctant to work in coal filed and
had migrated to the Assam. Resident of Bihar particularly from Ara and Shahabad
had migrated as indentured labour but resident of Jharkhand didn’t move up.
Santhal have originally migrated from West Bengal and Mahatos came from Bihar
to counter the Pahariyas of Rajmahal.[11] The non-tribal residents of Jharkhand have
contributed to building up of the state and they are also living in dismal
condition. Their situations must be
looked into. Domicile policy and
employment policy are two separate things and should be defined separately. Considering
the historical discrimination and deprivation, affirmative action should be
taken in favour of tribals even on the ground of residence and they must be
given preference and privilege in government jobs particularly in class three
and four groups. However, domicile policy should be transparent, measurable,
and inclusive rather than exclusionary in nature. The cutoff date should not be
arbitrary and must be stand with judicial scrutiny.
[1] Jharkhand Aborted Once Again – Arvind N Dan,
EPW 7 November 1998.
[2] A. K. Roy, Jharkhand:
Internal Colonialism, Ram Dayal Munda
and S. Bosu Mullick (eds.), Jharkhand Movement: Indigenous Peoples, Struggle for Autonomy in India,
Copenhagen/Jharkhand: IWGIA and BIRSA, 2003, pp. 79-85
[3]
Through the looking glass; Domicile Debate of Jharkhand By Nirmala Sengupta, EPW November 7 2014
[4] Ibid
3
[5]
Ibid3
[6] http://legalperspectives.blogspot.in/2010/08/only-one-domicile-for-entire-india-high.html
[7] http://legalperspectives.blogspot.in/2010/08/only-one-domicile-for-entire-india-high.html
[8] http://timesofindia.indiatimes.com/city/patna/Jharkhand-domicile-order-set-aside/articleshow/29610427.cms
[9]
Through the looking glass; Domicile Debate of Jharkhand By Nirmala Sengupta, EPW November 7 2014
[10]
Ibid9
[11]
Prof Harishwar Dayal , Indian Institute of Human Development, speech in a
discussion on Domicile Policy of Jharkhand organized by PAIRVI at Ranchi on 28th
April 2015
2Awesome Comments!
Very well written and explained!
thanks