National Conference leader and elected Member Parliament,Justice Hasnain Masoodi on Friday said the reports that MHA is toying with theidea of undertaking delimitation in Jammu and Kashmir before much delayed andoverdue Assembly elections is a cause of concern.
In a statement, Masoodi said the exercise would be withoutlegal authority and in gross violation of Constitution and law.
“Section 47, Constitution of Jammu and Kashmir providesfor readjustment of ‘extent and boundaries’ of the constituencies in accordancewith the law. The Jammu and Kashmir Representation of Peoples Act 1957 (Sec. 3)is the law enacted to govern the matter. The Proviso added to Section 47 of theConstitution by 29th Amendment of 23rd April 2002 has frozen delimitationexercise till the results of first census taken after 2026 are published.Corresponding amendment has been made in Sec 3 in Representation of Peoples Actas well,” he said.
“It is not that the amendments have come from nowhere.These were preceded by amendment to Articles 82 and 170 by Constitution 84thAmendment of 2001 whereby delimitation was frozen till results of 2026 werepublished. It follows that not only in Jammu and Kashmir but in all the statesas well as in case of the House of People, the delimitation is frozen in effecttill 2031 i.e the results of 2030 census are made public,” he said.
Masoodi said: “Once the delimitation is frozen asregards all the states, there is no reason to single out Jammu and Kashmir forsuch an exercise more so when the Constitution of Jammu and Kashmir does notpermit delimitation and the Constitutional mechanism to pave way fordelimitation is not in place.”
He said the delimitation at present can be undertaken onlyafter amendment to section 47 of the Constitution. “The amendment can beeffected only by the elected legislature of the state with requisite majority.The governor does not have power to amend the Constitution. In terms of Article356 that has come into play after the imposition of presidents’ rule, the legislativepower can be exercised by the Parliament, if so declared by thepresident.”
“In terms of Article 357 the Parliament can confer onthe president power of the state legislature to “make laws”. Thepower therefore is to remain restricted in both cases i.e the Parliament andthe President to “make laws”. Neither the Parliament nor thePresident have power to amend the Constitution of Jammu and Kashmir in exerciseof powers under Article 356 and 357.”
He said the Constitution and legal position as on datetherefore would not permit delimitation. “Such an exercise, can beundertaken only after the elections are held, state assembly and a duly electedgovernment are in place and necessary amendment is made in Section 47 of theConstitution of Jammu and Kashmir and Section 3 Jammu and KashmirRepresentation of Peoples Act 1957, pre-poning the delimitation. Any effort ofdelimitation would be a misadventure and offend the Constitution and theRepresentation of Peoples Act.” (KNS)