Why Jharkhand wants to define a ‘local’ with 1932 as the cut-off for domicile

The 2022 draft Bill

The Bill states that the local residents’ policy of 2002 was challenged before the Jharkhand High Court in two Public Interest Litigations which set aside the definition of the local persons and also gave direction to decide “afresh/redefine” and “prescribe the guidelines for determination of local persons taking into account the relevant history of the state”.

As per the draft Bill, a local will be a person whose name or his ancestors’ name is recorded in the survey/khatiyan of 1932 or before. In case of persons who are landless, local persons shall be identified by the Gram Sabhas based on the culture, local customs and tradition, among others.

The 2016 executive order

In 2016, the Raghubar Das government redefined ‘locals’ through an executive order, essentially setting the cut-off year as 1985 for proof of residence in Jharkhand. It said that the decision was arrived at after discussions with “different political parties, intellectuals, and various social organisations”.

However, the current draft Bill says that the MLAs from the state have been consistently raising the issue in the Assembly to recall ‘the local persons’ criteria’ as defined in 2016. It adds that several demands were made to define and identify local persons on the basis of 1932 khatiyan.

Jharkhand CM Hemant Soren after the state cabinet approved the draft ‘Local Resident of Jharkhand Bill’ in Ranchi on Wednesday. (PTI Photo)

Why 1932?

The draft Bill says the definition of local persons on the basis of ‘1932 khatiyan’ is based upon the fact that “living conditions, customs and the traditions and social development” of the ‘moolwasis and people from tribal community’ have been negatively impacted due to pre and post 1932 migration of people from other states to Jharkhand (erstwhile Bihar).

It argues that the percentage of people from Scheduled Tribes and moolwasis has seen a steady decline since the census of 1941 in Jharkhand. It attributes various reasons behind such decline, but the Bill says that it “cannot be denied” that there needs to be “affirmative action at the policy level” for the development of STs and moolwasis. The Bill states that identification of the local persons was a “compelling necessity” to provide “social, cultural, educational, service and other benefits to them”.

Benefits for ‘locals’

According to the Bill, the locals will receive “certain rights, benefits, and preferential treatment” over their land; in their stake in the local development of the rivers, lakes, fisheries; in their local traditional and cultural and commercial enterprises; in their rights over agricultural indebtedness or availing agricultural loans; in maintenance and protection of their land records; for their social security; and even in case of employment both in private and public sector; and for trade and commerce in the state.

Sidestepping legal challenge

The Babulal Marandi government too brought a similar policy in 2002, but it was struck down by the courts. But the current government seems to have thought about sidestepping that legal hurdle.

The Cabinet note gives a clear indication that the Act will not come into force until it is included in the Ninth Schedule of the Constitution to avoid judicial scrutiny.

The Ninth Schedule of the Constitution contains a list of central and state laws which cannot be challenged in courts. However, the courts in the past have said that it can be reviewed if it violates the fundamental rights or the basic structure of the Constitution.

The state government will send the Act to the Centre and request for a Constitutional amendment for the Act’s inclusion in the Ninth Schedule.

If this is done, there will be lesser chance of a legal challenge.