'Delimitation on cards'

File Photo of Amit Shah

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 have been flushing out local militants and have already notched up 100 kills in the year to date.

Among the many plans on the drawing board is believed to be the boilerplate for fresh delimitation of constituencies and appointment of a Delimitation Commission. At the very kernel of delimitation is redrawing the scope and size of Assembly constituencies and determine the number of seats to be reserved for Scheduled Castes.

This is, in the main to correct an inequity and anomaly of regional disparity long suffered by Jammu province, and also provide representation to all reserved categories in the State Assembly. The main grouse of Jammu being that growing imbalance emerging out of composition of various constituencies would continue.

Another section of thought is that the Kashmir claims that it has no Scheduled Castes or Scheduled Tribes while Gujjars, Bakerwals, Gaddis and Sippis were given Scheduled Tribe status in 1991 and form 11 per cent of the population but have no political reservation.

One needs to be mindful that the Constitution of Jammu and Kashmir, enacted in 1957, was based on the Maharaja’s Constitution of Jammu and Kashmir of 1939, which was still in force. After accession to India, the State Constituent Assembly was constituted under the 1939 Constitution, but Sheikh Abdullah’s administration arbitrarily carved out 30 seats for Jammu region and 43 seats for Kashmir region and two seats for Ladakh region. This regional disparity became entrenched thereafter: Kashmir (46), Jammu (37) and Ladakh (four).

Sometime in December, 2016, a Cabinet Sub Committee on implementation of Agenda of Alliance of PDP-BJP government had referred the said 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 had recommended a proposal of 25 per cent all round increase in the number of Assembly seats of all three geographical regions in the state which would have resulted in an additional 22 constituencies in the Assembly. But PDP-Congress did not have the two-thirds heft in the Assembly and in any case the National Conference had opposed it.

According to the 2011 census, the total population of Jammu Division was 5,378,538 of which Dogras were the dominant group comprising 62.55 per cent of the population. Jammu has 25.93 per cent of the area and 42.89 per cent of the population.

Against this Kashmir division or the intermontane Valley population in 2011 was 6,888,475 with 96.40 per cent Muslims. Though it has 15.73 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 2.18 per cent of the population, a mere 2,74,289 people reside there of which 46.40 per cent are Muslims, 12.11 per cent Hindus and 39.67 per cent Buddhist.

The last time a delimitation exercise took place in the state was also under President’s Rule, as far back as 1995 in extremely difficult circumstances by the Justice (retired) K.K. Gupta Commission.

Incidentally the Constitution provides for delimitation every 10 years, the next delimitation of Assembly constituencies should have logically taken place in 2005.

However, in 2002, the Farooq Abdullah Government chose to freeze delimitation until 2026 by amending the Jammu and Kashmir Representation of the People Act 1957 and Section 47(3) of the Constitution of Jammu and Kashmir.

The amended Section 47(3) provided “that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust the total number of seats in the Legislative Assembly of the State and the division of the State into territorial constituencies under this sub-section”. This put the contentious 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 is vested in the Governor. The last delimitation on provisional basis was done in 1993 by Governor Jagmohan when Jammu and Kashmir was divided into 87 Assembly constituencies.

The Governor is competent to amend Section 47 of the Constitution to delete the objectionable proviso which barred the setting up of a Delimitation Commission. Furthermore, Section 3 of the Representation of People Act gives the Governor the mandate to constitute a DC. Jammu and Kashmir has the powers to revoke the law through a Constitutional Amendment with a two-third majority and ramp up the number of seats. If the Governor sets up a Delimitation Commission, then the ball will start rolling. By fast tracking it before the elections, some sort of common ground could be found. At the moment there are seven seats reserved for SC in the Assembly, all in the Jammu division which haven’t been rotated since 1996 – Chamb, Domana, Ranbir Singh Pura, Samba, Hiranagar, Chenani and Ramban (separate) in Jammu, Kathua and Udhampur district, respectively.

Convention says that the next delimitation can only take place after Census 2031, unless the Governor intervenes and rectifies this irregularity. In another peculiarity, the State Constitution, under Section 48, reserves 24 seats in the 111-member Assembly for the area under Pakistani occupation (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 constitution which froze delimitation commission till 2026.

His son and former chief minister Omar Abdullah also tweeted Tuesday saying  the freeze on delimitation has been applied to the entire country until 2026 and contrary to the way “some ill-informed TV channels are trying to sell it, it isn’t just a Jammu and Kashmir specific freeze.”

Omar expressed surprise that “the BJP, which talks about 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 one respect.”

“When delimitation takes place in the rest of the country 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 from the people of the state.”

Omar Abdullah also pointed out to a Supreme Court order and said the freeze on delimitation was applied to the state and was done to bring the state in line with the rest of the country. “The same was challenged and upheld in both the High Court of J&K and the Supreme Court.”

The Supreme Court had in 2010 upheld the freeze imposed by Jammu and Kashmir government on delimitation of assembly constituencies in the state till 2026 and dismissed the plea that it violated the “basic structure” of the state constitution.

Rejecting National Panthers Party chief Bhim Singh’s argument that it deprived the Scheduled Castes and Scheduled Tribes the right to represent the Valley, the Apex court had in a judgement said courts cannot interfere in matters of delimitation as there was an express constitutional bar on such interference.

Dismissing the plea, the then bench of Justices G S Singhvi and Ashok Kumar Ganguly had said, “We are of the opinion that a right to cast vote is a valuable right but to demand any uniform value of one’s voting right through the process of delimitation, disregarding the statutory and constitutional dispensation based on historical reasons is not a justiciable right.”

However, according to legal experts, the amendment to the Constitution can be struck down by Governor Satya Pal Malik but requires a concurrence of Parliament within six months after passing such an ordinance.

Mehbooba distressed

PDP president Mehbooba Mufti tweeted that she is “distressed to hear about GoIs (Government of India’s) plan to redraw assembly constituencies in J&K. Forced delimitation is an obvious attempt to inflict another emotional partition of the state on communal lines. Instead of allowing old wounds to heal, GoI is inflicting pain on Kashmiris”.

The then chief minister Ghulam Nabi Azad toyed with the idea of setting up delimitation commission but could not push forward after its ally, PDP, resisted any such move.

Don’t understand the earth shattering hurry: Sajad Lone   

Chairman of Peoples Conference Sajad Gani Lone while reacting to the delimitation reports tweeted: “Hope and pray that media reports about Kashmir aren’t true. Don’t understand the earth shattering hurry. And this perception of being wronged at a provincial level. If thousands of graves in 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 was working on a proposal to redraw the Assembly Constituencies in J&K before the upcoming Assembly elections, President J&K Peoples Movement Shah Faesal requested the MHA to come clean on the matter in view of the alarm and anxiety in the State.

In a statement Faesal said that any delimitation exercise in violation of the freeze imposed by J&K State Legislature till year 2025 will be seen as manipulative and will have dangerous consequences for the state.

“It is going to be a gross provocation. If the idea is to adjust Assembly constituencies to needs of the growing population then let’s wait for the Assembly to be reconstituted first. Taking such a decision before the elections clearly betrays a mischievous intent and will neither be ethically correct nor legally tenable”, Shah Faesal added.

Warning that any such attempt might further intensify the inter-provincial rivalry, Shah Faesal suggested that the new government in the Centre should rather focus on revival of an authentic mainstream in J&K which can take such decisions while keeping the constitutional and demographic sensitivities in mind. “This is giving an impression that central government is out to further disempower and alienate Kashmiris and there is no value for Kashmiri lives. Rather than taking steps to bring peace to the region it seems that arrangements are being made to turn it into a warzone.”

“No doubt Jammu and Ladakh regions deserve their due but there has to be a due process and State constitution has express provisions to that effect.”

Deploying extra-constitutional measures to form a BJP-led government in the State will prove to be disastrous in the long term and political manipulation in a sensitive state like J&K must be avoided at any cost”, argued Faesal.

He called upon all regional political parties to come together and resist any such move that doesn’t take all stake-holders on board.

“It is turning out to be an existential battle and all political parties should immediately rise above petty agendas and unite in resistance to all these ridiculous proposals against the special status of the statue. There is need for a democratic and peaceful counter -offensive to this illegal 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 Kaul welcomed any move for carrying out delimitation in the state and said, “We have strongly raised it in the past that this exercise should be undertaken. It was also listed in the agenda of alliance with the PDP.”

“We urge the Governor to set up delimitation commission to end discrimination with Jammu region and it should be carried out before assembly elections,” Kaul said.

National Panthers Party chief Bhim Singh welcomed any such move saying the Congress with the National Conference have “discriminated against” the Jammu region.

The demand for delimitation of Jammu and Kashmir was raised by the BJP first in 2008 during the Amarnath land row.

The objective of the BJP is seemed to correct the alleged inequity and regional disparity towards the Jammu region, and also provide representation to all reserved categories in the state Assembly.

The BJP in Jammu and Kashmir has been raising the issue of reorganisation of the state so that Jammu gets a larger share of seats in the 87-member state assembly. As of now, Kashmir region has 46 seats followed by Jammu region with 37 and Ladakh with four.

The state BJP has also been suggesting that 13 seats kept vacant for areas of the state under the control of Pakistan should be given to West Pakistan refugees who have settled in Jammu.