To which inhabitants should a state grant domicile status?

Last fortnight, Jharkhand’s new domicile policy was met with strikes and protests, led by the Jharkhand Mukti Morcha, backed by the Congress and the Jharkhand Vikas Morcha (Prajatantrik). The state administration responded by taking 9,000 people into preventive detention and arresting at least 500. The recent unrest leads back to a fraught question: just who should be considered the rightful inhabitant of a state? In most cases, states have tried to answer this by asking another question: who is an original inhabitant of a state?

Jharkhand, formed to protect indigenous identity and rights to resources, has always seen violent contestations over both questions. The JMM, which started life in 1972 under the leadership of Shibu Soren and led the movement for statehood, initially twinned demands for workers’ rights with assertions of tribal identity. Over time, it crystallised into a movement to secure the region’s “jal, jangal, zameen” (water, forests, land) for the adivasi and the “moolvasi” (non-tribal original settlers). This indigenous population was seen to be under siege because of industries and mines set up by people viewed as outsiders.

After the state came into being in 2000, the new government, under Babulal Marandi, held that domicile would be granted only to those who could show land records from 1932. The policy was resisted and finally struck down by the Jharkhand High Court in 2002. One of the problems with the 1932 criterion was that it excluded the multitudes who were landless. In the years that followed, there were proposals to make the 1951 Census or the 1952 electoral rolls the criteria for domicile, but they went nowhere.

The latest policy uses the phrase “sthaniya niwasi” (local resident) instead of “moolvasi”. It extends domicile to those who have lived in Jharkhand for 30 years and acquired immoveable property, to state and Central government employees, and to anyone who was born in the Jharkhand. The logic of indigeneity seems to have given way to a simpler process of naturalisation. Inevitably, it ran up against the politics that was built around protecting the rights of the original dwellers of the land.

Original inhabitants

The debate over domicile is not played out in Jharkhand alone. Uttarakhand and Chhattisgarh, formed at the same time and after long-running movements for statehood, also have domicile policies that parcel out rights of residence. While the contours of Chhattisgarh’s policy are similar to Jharkhand’s proposed law, Uttarakhand has laid down that only people who have lived in the state since before 1985 are eligible for a domicile certificate.

In other cases, domicile is more explicitly related to identity – ethnic, linguistic, cultural – and to a sense of history. Some form of the term, “original inhabitant”, has surfaced in recent government policies of at least two states of the North East. It has triggered the old anxieties about being dispossessed, the old animosities between those considered indigenous and those considered outsiders.

Last year, the Manipur assembly passed three bills at great speed. These were the Protection of Manipur People Bill, the Manipur Land Revenue and Land Reforms (7th Amendment) Bill and the Manipur Shops and Establishments (2nd Amendment) Bill. “Manipur people” were defined as those listed in population surveys conducted in 1951 – the National Register of Citizens, the Census or the Village Directory - and their descendants. “Non-Manipur” persons would need permits to enter the state and find it difficult to buy land.

The laws were passed in response to agitations led by students in the Imphal Valley. They cordoned off the state from outsiders, much like the Inner Line Permit system, which covers other regions of the North East, and were meant to “safeguard the indigenous population of the state”. Except, in Manipur, different histories of indigeneity separate the hills from the plains. There are older laws to protect the hill tribes from incursions by outsiders, which includes people from the plains. These tribes now broke out in violent protest, driven by the fear that they would become “foreigners in our own land”.

In Assam, the exercise of updating the National Register of Citizens, 1951, has launched a search for the “original inhabitants” of the state. The outsider here is primarily the Bengali speaking Muslim, usually branded as an “illegal Bangladeshi immigrant”. To be included in the register, citizens must prove they or their ancestors had entered the country before March 24, 1971, when the Bangladesh war began.

In a state that has seen long and competing movements to preserve land and political rights for the “bhumiputras” or “sons of the soil”, migration has been a constant spectre. The NRC is a bureaucratic exercise, quite distinct from those movements of ethnic purity, but it shares the same motivations: preserve the state for its original inhabitants.

At the other end of the country, Maharashtra bears the legacy of its own bhumiputra movement, an expression of the Marathi ethno-linguistic sub-nationalism which led to the creation of the state in 1960 and was initially directed against the Gujaratis who shared the city of Bombay. It spawned Bal Thackeray’s Shiv Sena in 1966 and sustained a regional chauvinism which would have Maharashtra reserved for Marathi manoos and drive out migrants from other states. These sentiments survive in domicile-based reservations in educational institutions and, in 2010, the state government decided that new taxi permits would be given only to people who spoke Marathi and had lived in Maharashtra for at least 15 years.

Similar domicile-based quotas continue to exist in Tamil Nadu, Andhra Pradesh and Telangana, places that have won statehood through assertions of regional and linguistic identity.

‘Justifiable context’

Legally, domicile is defined as the “place of living” or permanent residence. But in states that define domicile based on identity, it has almost come to mean a separate unit of citizenship. In the original Nehruvian state – equipped with centralising tendencies and based on the notion of a composite national identity – such provisions would have been anathema. Even after the Centre loosened up, creating more breathing room for different identities and agreeing to various statehood demands, the courts militated against separate domicile policies.

In a 2010 judgment, the Uttarakhand High Court pointed out, “What should be always remembered is that a domicile denotes an area with a separate and distinctive legal system and not just a particular place in a country.” Since there was only one set of laws in India, it argued, there could only be one domicile. “The concept of regional or provincial domicile is alien to Indian legal system,” it concluded.

Then in 2014, the Supreme Court, upholding the 1985 cut-off date for Uttarakhand, ruled that domicile status could be used to grant a privilege if there was a justifiable context, such as discrimination.

Affirmative action

In the North East, the government has followed a policy of “protective discrimination” to protect indigenous populations. Non-linguistic states like Jharkhand and Telangana, Nirmal Sengupta argues, were carved out of parent states to give greater autonomy to backward regions that had no say in decision making. Such affirmative action, he continues, does not end with state formation. It must continue in domicile policies.

Yet the demographic purity that these states envisaged may no longer exist. There may be different groups living within their borders, equally deserving of special privileges. Maybe states formulating domicile policies need to ask a different question. Instead of asking who its original inhabitants are, it should ask which of its inhabitants need affirmative action.