Union Home Minister Amit Shah has hit the ground running, as expected. With a catalogue of review meetings, Shah has many crucial things on his agenda including redrawing the long pending delimitation of constituencies in Jammu and Kashmir. With Presidents Rule operational in the strife-torn state, Shah has already had a closed door meeting with Governor Satyapal Malik. He also met Director Intelligence Bureau Rajiv Jain and Home Secretary Rajiv Gauba. Almost in parallel, it is believed that the Jammu and Kashmir Division in the vast swathe of Ministry of Home Affairs may be restructured.
The State has been under President’s Rule since December 18,2018. This is likely to be extended beyond July 3. The security forces havebeen flushing out local militants and have already notched up 100 kills in theyear to date.
Among the many plans on the drawing board is believed to bethe boilerplate for fresh delimitation of constituencies and appointment of aDelimitation Commission. At the very kernel of delimitation is redrawing thescope and size of Assembly constituencies and determine the number of seats tobe reserved for Scheduled Castes.
This is, in the main to correct an inequity and anomaly ofregional disparity long suffered by Jammu province, and also providerepresentation to all reserved categories in the State Assembly. The maingrouse of Jammu being that growing imbalance emerging out of composition ofvarious constituencies would continue.
Another section of thought is that the Kashmir claims thatit has no Scheduled Castes or Scheduled Tribes while Gujjars, Bakerwals, Gaddisand Sippis were given Scheduled Tribe status in 1991 and form 11 per cent ofthe population but have no political reservation.
One needs to be mindful that the Constitution of Jammu andKashmir, enacted in 1957, was based on the Maharaja’s Constitution of Jammu andKashmir of 1939, which was still in force. After accession to India, the StateConstituent Assembly was constituted under the 1939 Constitution, but SheikhAbdullah’s administration arbitrarily carved out 30 seats for Jammu region and43 seats for Kashmir region and two seats for Ladakh region. This regionaldisparity became entrenched thereafter: Kashmir (46), Jammu (37) and Ladakh(four).
Sometime in December, 2016, a Cabinet Sub Committee onimplementation of Agenda of Alliance of PDP-BJP government had referred thesaid issue of working out the modalities to a high level bureaucratic panel.But this did not fructify.
During Ghulam Nabi Azad’s term as Chief Minister, he hadrecommended a proposal of 25 per cent all round increase in the number ofAssembly seats of all three geographical regions in the state which would haveresulted in an additional 22 constituencies in the Assembly. But PDP-Congressdid not have the two-thirds heft in the Assembly and in any case the NationalConference had opposed it.
According to the 2011 census, the total population of JammuDivision was 5,378,538 of which Dogras were the dominant group comprising 62.55per cent of the population. Jammu has 25.93 per cent of the area and 42.89 percent of the population.
Against this Kashmir division or the intermontane Valleypopulation in 2011 was 6,888,475 with 96.40 per cent Muslims. Though it has15.73 per cent of the state’s area, it holds 54.93 per cent of the population.
Ladakh has 58.33 per cent of the area accounting for 2.18per cent of the population, a mere 2,74,289 people reside there of which 46.40per cent are Muslims, 12.11 per cent Hindus and 39.67 per cent Buddhist.
The last time a delimitation exercise took place in thestate was also under President’s Rule, as far back as 1995 in extremelydifficult circumstances by the Justice (retired) K.K. Gupta Commission.
Incidentally the Constitution provides for delimitationevery 10 years, the next delimitation of Assembly constituencies should havelogically taken place in 2005.
However, in 2002, the Farooq Abdullah Government chose tofreeze delimitation until 2026 by amending the Jammu and Kashmir Representationof the People Act 1957 and Section 47(3) of the Constitution of Jammu andKashmir.
The amended Section 47(3) provided “that until therelevant figures for the first census taken after the year 2026 have beenpublished, it shall not be necessary to readjust the total number of seats inthe Legislative Assembly of the State and the division of the State intoterritorial constituencies under this sub-section”. This put thecontentious matter in abeyance.
This is where the Governor comes in. On his intervention,this can be changed. For during President’s Rule, the legislative authority isvested in the Governor. The last delimitation on provisional basis was done in1993 by Governor Jagmohan when Jammu and Kashmir was divided into 87 Assemblyconstituencies.
The Governor is competent to amend Section 47 of theConstitution to delete the objectionable proviso which barred the setting up ofa Delimitation Commission. Furthermore, Section 3 of the Representation ofPeople Act gives the Governor the mandate to constitute a DC. Jammu and Kashmirhas the powers to revoke the law through a Constitutional Amendment with atwo-third majority and ramp up the number of seats. If the Governor sets up aDelimitation Commission, then the ball will start rolling. By fast tracking itbefore the elections, some sort of common ground could be found. At the momentthere are seven seats reserved for SC in the Assembly, all in the Jammudivision which haven’t been rotated since 1996 – Chamb, Domana, Ranbir SinghPura, Samba, Hiranagar, Chenani and Ramban (separate) in Jammu, Kathua andUdhampur district, respectively.
Convention says that the next delimitation can only takeplace after Census 2031, unless the Governor intervenes and rectifies thisirregularity. In another peculiarity, the State Constitution, under Section 48,reserves 24 seats in the 111-member Assembly for the area under Pakistanioccupation (since 1947-48).
Omar surprised
Taking Jammu and Kashmir on par with the rest of the states,the then Farooq Abdullah government had in 2002 amended the state constitutionwhich froze delimitation commission till 2026.
His son and former chief minister Omar Abdullah also tweetedTuesday saying the freeze ondelimitation has been applied to the entire country until 2026 and contrary tothe way “some ill-informed TV channels are trying to sell it, it isn’tjust a Jammu and Kashmir specific freeze.”
Omar expressed surprise that “the BJP, which talksabout bringing J&K on par with other states by removing (Article) 370 &35-A now wants to treat J&K differently from other states in this onerespect.”
“When delimitation takes place in the rest of thecountry the BJP is welcome to apply it to J&K until then we in the @JKNC_will oppose, tooth and nail, any attempt to make changes without a mandate fromthe people of the state.”
Omar Abdullah also pointed out to a Supreme Court order andsaid the freeze on delimitation was applied to the state and was done to bringthe state in line with the rest of the country. “The same was challengedand upheld in both the High Court of J&K and the Supreme Court.”
The Supreme Court had in 2010 upheld the freeze imposed byJammu and Kashmir government on delimitation of assembly constituencies in thestate till 2026 and dismissed the plea that it violated the “basicstructure” of the state constitution.
Rejecting National Panthers Party chief Bhim Singh’sargument that it deprived the Scheduled Castes and Scheduled Tribes the rightto represent the Valley, the Apex court had in a judgement said courts cannotinterfere in matters of delimitation as there was an express constitutional baron such interference.
Dismissing the plea, the then bench of Justices G S Singhviand Ashok Kumar Ganguly had said, “We are of the opinion that a right tocast vote is a valuable right but to demand any uniform value of one’s votingright through the process of delimitation, disregarding the statutory andconstitutional dispensation based on historical reasons is not a justiciableright.”
However, according to legal experts, the amendment to theConstitution can be struck down by Governor Satya Pal Malik but requires aconcurrence of Parliament within six months after passing such an ordinance.
Mehbooba distressed
PDP president Mehbooba Mufti tweeted that she is “distressedto hear about GoIs (Government of India’s) plan to redraw assemblyconstituencies in J&K. Forced delimitation is an obvious attempt to inflictanother emotional partition of the state on communal lines. Instead of allowingold wounds to heal, GoI is inflicting pain on Kashmiris”.
The then chief minister Ghulam Nabi Azad toyed with the ideaof setting up delimitation commission but could not push forward after itsally, PDP, resisted any such move.
Don’t understand the earth shattering hurry: Sajad Lone
Chairman of Peoples Conference Sajad Gani Lone whilereacting to the delimitation reports tweeted: “Hope and pray that media reportsabout Kashmir aren’t true. Don’t understand the earth shattering hurry. Andthis perception of being wronged at a provincial level. If thousands of gravesin Kashmir don’t add up to people being wronged. Wonder what wronged means.”
Shah Faesal warns of dangerous consequences
Reacting to the media reports that Central Government wasworking on a proposal to redraw the Assembly Constituencies in J&K beforethe upcoming Assembly elections, President J&K Peoples Movement Shah Faesalrequested the MHA to come clean on the matter in view of the alarm and anxietyin the State.
In a statement Faesal said that any delimitation exercise inviolation of the freeze imposed by J&K State Legislature till year 2025will be seen as manipulative and will have dangerous consequences for thestate.
“It is going to be a gross provocation. If the idea isto adjust Assembly constituencies to needs of the growing population then let’swait for the Assembly to be reconstituted first. Taking such a decision beforethe elections clearly betrays a mischievous intent and will neither be ethicallycorrect nor legally tenable”, Shah Faesal added.
Warning that any such attempt might further intensify theinter-provincial rivalry, Shah Faesal suggested that the new government in theCentre should rather focus on revival of an authentic mainstream in J&Kwhich can take such decisions while keeping the constitutional and demographicsensitivities in mind. “This is giving an impression that centralgovernment is out to further disempower and alienate Kashmiris and there is novalue for Kashmiri lives. Rather than taking steps to bring peace to the regionit seems that arrangements are being made to turn it into a warzone.”
“No doubt Jammu and Ladakh regions deserve their due butthere has to be a due process and State constitution has express provisions tothat effect.”
Deploying extra-constitutional measures to form a BJP-ledgovernment in the State will prove to be disastrous in the long term andpolitical manipulation in a sensitive state like J&K must be avoided at anycost”, argued Faesal.
He called upon all regional political parties to cometogether and resist any such move that doesn’t take all stake-holders on board.
“It is turning out to be an existential battle and allpolitical parties should immediately rise above petty agendas and unite inresistance to all these ridiculous proposals against the special status of thestatue. There is need for a democratic and peaceful counter -offensive to thisillegal assault on the political rights of the people of J&K”,proposed Shah Faesal.
BJP, NPP welcome
Jammu and Kashmir state BJP general secretary Ashok Kaulwelcomed any move for carrying out delimitation in the state and said, “Wehave strongly raised it in the past that this exercise should be undertaken. Itwas also listed in the agenda of alliance with the PDP.”
“We urge the Governor to set up delimitation commissionto end discrimination with Jammu region and it should be carried out beforeassembly elections,” Kaul said.
National Panthers Party chief Bhim Singh welcomed any suchmove saying the Congress with the National Conference have “discriminatedagainst” the Jammu region.
The demand for delimitation of Jammu and Kashmir was raisedby the BJP first in 2008 during the Amarnath land row.
The objective of the BJP is seemed to correct the allegedinequity and regional disparity towards the Jammu region, and also providerepresentation to all reserved categories in the state Assembly.
The BJP in Jammu and Kashmir has been raising the issue ofreorganisation of the state so that Jammu gets a larger share of seats in the87-member state assembly. As of now, Kashmir region has 46 seats followed byJammu region with 37 and Ladakh with four.
The state BJP has also been suggesting that 13 seats keptvacant for areas of the state under the control of Pakistan should be given toWest Pakistan refugees who have settled in Jammu.