Jammu vis-à-vis Kashmir: voting rights, assembly seats

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Contents

A history of delimitation in Jammu and Kashmir

A

Kamaljit Kaur Sandhu | Government planning to redraw Jammu and Kashmir assembly constituency borders: Sources | June 4, 2019 | India Today


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 [total 75]. This regional disparity became entrenched thereafter [in circa 1993-95]: Kashmir (46), Jammu (37) and Ladakh (four) [total 87].

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 53,78,538 of which Dogras are 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 68,88,475 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.

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 delimitation commission. 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).

B

Sumer Khajuria |Remove ban on delimitation in J&Kashmir | Daily Excelsior | 14/06/2019


Maharaja Hari Singh with an intention of the association of the subjects of the state in the matter of legislation and administration of the state had introduced a constitutional Regulation No. 1 of Svt 1991, there by establishing a Praja Sabha in October 1934 with 75 members consisting of 42 nominated and 80 elected members; and such democratic institution was further developed under the Jammu and Kashmir constitution act no xiv of Svt 1996 (1939 AD) There under such Praja Sabha had 40 elected members and 35 nominated.

Maharaja of the state further under his Proclamation dated 5th march 1941 appointed Sheikh Abdullah as Prime Minister of the state under influence of Pt Nehru and thereafter following the foot step of his father Yuvraj Karan Singh as Regent of the State under Proclamation dated 1st may 1951 further ordered for the constitution of the constituent Assembly of the state consisting of the people, to elect their representatives on the basis of adult franchise by setting up Assembly Constituencies each containing a population of 40000 or as near thereto as possible.

As envisaged under the twin Proclamations dated 5th March, 1948 and 1st May 1951, the Delimitation committee consisting of members of the rank of Deputy Commissioner from Revenue Department submitted its farcical report based on the census report of the year 1941, there by the population of Jammu and Kashmir was said to be forty lakhs and out of which the population of the area fallen under POJk was assessed hurriedly to be ten lakhs and the population of the area held in control of Indian side to be thirty lakh. Thus in arithmetical proportion 100 seats@40,000 population of proposed segments were taken as per proclamations out of which 25 seats were reserved for the representation of the people hailing from POJK and rest 75 seats for the area falling in J&K state.

The delimitation of the year 1951 was made by the committee so constituted by the then Prime Minister of Jammu and Kashmir purely on the the dictates of Sheikh Mohammad Abdullah heading interim Government having no mandate of the people of Jammu and Kashmir. It was Sheikh Abdullah Government which provided 43 seats to Kashmir province which comprised of 15120 sq kilometers and 30 seats for Jammu Province with an area of 26000 sq kilometers and two seats for Ladakh region. Like wise three Lok Sabha Seats were allotted for Kashmir and two Lok Sabha seats for Jammu whereas one seat kept for Ladakh. The census report of 1961 further defines the population of Kashmir as 18,99,438, in case of Jammu 1572, 887 and in case of Ladakh as 88651/souls. Apart this the Jammu and Kashmir Representation People Act enforced from 1st January 1957 further provided that the criteria of Delimitation of the Assembly Constituencies was to take into consideration, Population as criteria as ascertained at the last preceding census.

Besides Geographical compactness, Nature of terrain and facilities of communication and such consideration have to be taken into consideration. and the like consideration, All these consideration if taken to logical, the justices demands more seats for Jammu Province both in Lok Sabha and Assembly of the State but Kashmir centric politics did not let it happen. with the result, there was unrest in the region in 1967.A commission of Inquiry headed by Dr P.B Gajendragadkar was constituted by the Jammu and Kashmir Government in consultation with the Government of India vide Government order No 878.AD of 1967 dated 6th November 1967, the scope of such enquiry was besides other parts of discriminations also to consider generally the causes that had led to irritation and remedial measures. Although Delimitation commission headed by JK Kapur was constituted vide Notification no 282/Jk/75 dated 20 Qoctobor1975 under whose recommendation the strength of the State Assembly was raised from 75 seats to 76 seats and allocation of Seats for Kashmir province remained as 42 seats, Jammu province as 32 seats and two seats for Ladakh Region. In fact such report was an eye wash.

Again the people of Jammu region having felt grievously deceived by the fanciful Act of the State Government held agitations and protests, in consequences of which a Delimitation commission headed by Justice Janki Nath Wazir was constituted by the Jammu and Kashmir under SRO 537 of December 2nd 1981. Instead of going for the Delimitation of the Assembly Segments as was pressed into service in true spirit of section 4 of the J&K Representation of people Act 1957, unethical exercises went on in Delhi circle to deny political justice to the people of Jammu. However a Delimitation Commission headed by Justice Mian Jala-ul-Din(Judge J&K High Court) was notified for Delimitation of J&K Assembly segments on 4.4 1989.

No weight age was accorded by the said Delimitation Commission. The redundancy of Justice Main Jalal-ud-Din Delimitation Commission invited the contingency of reconstitution of the new commission headed by Justice K.K Gupta under SRO 52 of 1991. Based on its report under order No1 dated 27-4-1995, the divided Assembly Constituencies of J&K State to 87 Segments with District wise break up based on 1981 census as;

Although the area of Jammu region lacks the basic amenity of communication and other like facts even as the proportional population basis arriving at state level excluding Ladakh, population of 70518 require one seat of which Jammu became entited to 39 seats but where as Kashmir region only 44 seats. On the other hand based on the area of constituency of the state works out to 508.32 sq kilometer per seat based on which Jammu region having an area of 15948 sq meters is entitled to only 51 seats but where as Kashmir province with an area of 15948 sq km is entitled to only 31 seats. However by taking mean of both population base and area of the constituency in a fair play and Justice Jammu region is entitled to get 45 seats but where as Kashmir province is entitled to 38 seats only out of the 83 seats presently earmarked at the present time for both Jammu and Kashmir region a part from 4 seats for Ladakh Region.

The Democratic system of the State in fact was subverted and hijacked by the Shiekh Abdullah Government in the year 1951 itself by not only creating a discriminative distribution of Assembly and Parliamentary seats but by way of whole some rejection of nomination papers especially of the Jammu based Non-NC-Candidates 46 out of 54 candidates across the State the reports of which were duly communicated by Pt. Prem Nath Dogra, the then President of Praja Parishad to the then President of India but of no avail. Again Farooq Abdullah Government to scuttle the system of Delimitation, the last ray of hope for the political justice to the Jammuites, again abused his political strength by getting 29th constitutional amendment Act passed on 23.04.2002 where by the constitution of State Legislature Assembly under section 49 of the Jammu and Kashmir constitution and its delimitation periodically as envisaged under section 4 of the J&K Representation of people Act 1957 was totally banned by way of conspiracy meaning there by the due census conducted after the year 2026 as published meaning there by the due census of 2031, the report of which may come before the public after about two years exercise i.e after operated census of 1981, the census of 2031 i.e half century shall operate.

( Indpaedia’s note of caution: the ‘Table’ below seems to be from 1993-95, and not 1951)

Kashmir

I. Kupwara Distt. 5 seats 65748 per seat.

II. Baramulla Distt. 10 seats 67014 per seat.

III. Srinagar Distt 10 seats 70832 per seat.

IV. Budgam Distt 5 seats 73452 per seat.

V. Pulwama Distt 6 seats 67346 per seats.

VI. Anantnag Distt 10 seats 65635 per seats.

Total:- 46 seats 68150 per seats.

Ladakh

I. Leh 2 seats 58616 per seat.

II. Kargil 2 seats 59653 per seat.

Total:- 4 seats 59137 per seat.

Jammu

I. Doda 6 seats 70877 per seat.

II.Udhampur 6 seats 75606 per seats.

III. Kathua 5 seats 73825 per seat.

IV. Jammu 13 seats 72569 per seat.

V. Rajouri 4 seats 75625 per seat.

VI. Poonch 3 seats 74732 per seat.

Total:- 37 seats 73462 per seat.

(Table ends)

2019: Is a fresh delimitation needed?

Kamaljit Kaur Sandhu | Government planning to redraw Jammu and Kashmir assembly constituency borders: Sources | June 4, 2019 | India Today


Delimitation of constituencies will include redrawing the scope and size of assembly constituencies and determine the number of seats to be reserved for scheduled castes.

At the very heart of the delimitation exercise is redrawing the scope and size of assembly constituencies and determining the number of seats to be reserved for SCs.

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 Kashmir Valley claims that it has no SC or ST while Gujjars, Bakerwals and Gaddies were given ST status in 1991 and form 11 per cent of the population but have no political reservation.

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 (retd) KK 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 & Kashmir Representation of the People Act 1957 and Section 47(3) of the Constitution of Jammu & Kashmir.

NC chief Omar Abdullah said [in 2019] that the BJP was welcome to apply delimitation to J&K when it does the same for rest of the country.

Omar Abdullah tweeted, "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 & nail, any attempt to make changes without a mandate from the people of the state.

"The freeze on delimitation was applied to J&K and was done to bring the state in line with the rest of the country. The same was challenged & upheld in both the High Court of J&K & the Supreme Court." NC chief also shared his detailed response on his Facebook page.

Does Kashmir enjoy higher voting rights than Jammu?

Justice G D Sharma (Retd)| Jammu cries for equal voting rights |07/04/2019|Daily Excelsior

Justice Sharma's tables

 

Population

Kashmir

Jammu

Ladakh

Total

Census of 1941

17,28,686

20,00,157

3,11,915 (which is not included in the total of the table)

40,21,616

Census of 1981

31,34,904

27,18,113

1,34,372

59,87,389

Census of 2011

69,07,623

53,50,811

2,90,492

1,25,48,926

 

Number of Voters In The Parliamentary Elections Of 2014

Constituency

Number of Voters

Ladakh

166763

Baramulla (Kashmir Region)

1190766

Srinagar (Kashmir Region)

1207230

Anantnag (Kashmir Region)

1301143

Udhampur (Jammu Region)

1469072

Jammu (Jammu Region)

1848155

Regional totals

 

Total of Baramulla, Srinagar, Anantnag

36,99,229

Total of Udhampur and Jammu

33,17,227

Difference of voters of Kashmir region and Jammu
Region

38,2002

 

 

Justice Sharma's arguments

In the 19th century, Maharaja Gulab Singh, a Dogra valiant soldier and statesman of par excellence had succeeded in building his kingdom from the debris of Maharaja Ranjit Singh’s empire after the latter’s demise. He falls in the line of great historical kings like Samrats Vikramaditya, Ashoka, and Napoleon to some extent, who had extended the boundaries of their kingdoms across sub-continent or country. He organized Dogras of Jammu region belonging to all castes, creeds, and by organizing them energized the inherent fighting spirit amongst them. He raised a formidable fighting force amongst them which is known in history as Dogra Army Regiment.

This army of Dogras hailing from rugged mountainous region could during those days in harsh weather were able to subjugate high and lofty those areas of deep Himalayas which any modern day Army with modern means of warfare are finding difficult to hold and retain them. His newly created kingdom was/is not only a landmass but it is territory inhabited by people professing different faiths, speaking different languages and dialects. He brought such heterogeneous population of three regions – Jammu, Kashmir, Ladakh inclusive of frontier “Illaquas of Skardu, Kargil (known as Baltistan) and Gilgit (Agency, consisting of some smaller principalities annexed-therein subsequently under his rule). In this manner, he carved out the biggest State in area wise in Indian History which still existed at the time of partition of the country in 1947. This state at that material time of partition, was bigger in area than the areas of 111 free countries individually of the world. The State had/has unique strategic position of exceptional importance as its boundaries touch with the boundaries of erstwhile British province of Punjab and Afghanistan, Russia, Tibet and China.

During the rule of his great grandson Maharaja Hari Singh, the area of the State was 222236 Sq.kms. At the time of aggression of Pakistan over the State of Jammu and Kashmir on 22nd Oct.1947, Jammu Province had an area of 32315 Sq.kms and Kashmir Province consisted of 22133 Sq.kms. Kashmir was the smallest area wise region and number two in population as compared to Jammu. Remaining area falls in the territory of Ladakh and its frontier Illaquas as well as Gilgit Agency. Sizeable area of that part is being retained by Pakistan by way of booty of aggression. After the war of 1962, China also forcibly occupied a big chunk of state land. The whole State raised by Maharaja Gulab Singh was finally officially designated as the State of Jammu and Kashmir (J&K) and this official name continues to be recognized till date in the country as well as in the comity of Nations. Maharaja Hari Singh, the last ruler of Maharaja Gulab Singh’s dynasty as a great nationalist despite feeling that all the dices were loaded against him had voluntarily made Accession of his State in 1947, under the Indian Independence Act of 1947 with the newly created Dominion of India. In other words, he had acceded 222236 Sq.kms. along with population. Freedom of the Country was a boon for the Indian Nation but proved bane for Dogras inhabitants of part of J&K State.

On the basis of 1941 census held during Maharaja Hari Singh’s time vide report dated 15-10-1940 and 16-10-1940, the population of the State, along with censuses held during 1941, 1981 and 2011 are tabulated herein under :-

To make it clear, the Jammu Province has the additional quota of votes of 382002 voters and in case the mandate and spirit of Section 50 of the State Constitution is taken into account along with requirements of Section 4 of the J&K Representation Act, one additional Parliamentary Seat can be legally claimed along with corresponding increase in J&K Assembly Constituencies. On 20th April, 1951, Dr.Karan Singh being the Regent of the State proclaimed for constituting the Constituent Assembly ( to frame Constitution of the State of J&K). The Drafting Committee on Oct. 10, 1956 presented the draft of constitution. After detailed discussions, the Constitution was approved and adopted on 17th Nov. 1956 and came into force on 26-1-1957. In the above said proclamation of 1951, 75 Constituencies for elections were earmarked for the State of J&K and 25 Constituencies were reserved for the area which is illegally occupied by Pakistan by aggression.

On 31st Oct.1951, the first session of Constituent Assembly was held under the tenure of Sheikh Abdullah as Prime Minister. This Assembly was constituted under the Constitution of 1939 framed by Maharaja Hari Singh. After aggression, there was no official record of the population but Sheikh Abdullah without consultation of the Maharaja who was ruler at that time carved out 75 Constituencies. In an arbitrary and capricious manner he reserved 43 Constituencies for Kashmir Region, 30 for Jammu Region and 2 for Ladakh Region. At that time, there was only one regional political party of Jammu Region known by the name of “Praja Parishad” who was challenging the autocratic behaviour of Sheikh Abdullah. Though Indian Congress Party had not opened its account in the State but was wholly supporting Sheikh Abdullah’s National Conference. Sheikh Abdullah’s mission of life was to establish his personal rule over the remaining two regions of the State i.e. of Jammu and Ladakh too..

Out of 43 Constituencies of Kashmir Region, Sheikh Abdullah won 41 Constituencies (uncontested) as the nomination papers of all those contestants were got rejected at the time of scrutiny. The remaining two Assembly constituencies remained for contestants but contestants under lurking threat themselves withdrew from the contest.

In Jammu Region, Praja Parishad filed nomination papers of its candidates to contest the elections out of 30 constituencies but from 13 constituencies their nomination papers were rejected. As a result, Praja Parishad had boycotted the elections. In this manner, Sheikh captured all the 75 constituencies in the Constituent Assembly for his person. Yousef Korbel, in his Book “Danger in Kashmir” at Paga 222 has recorded ‘such a success even a dictator cannot achieve’. This was a very calculated move of Sheikh Abdullah to place Kashmir Region at the dominant position over other two regions and then dictate terms to the Central Government for getting removed Maharaja Hari Singh as a ruler of the State and take all the reigns of governance in his hands as an Absolute Monarch. He had an eye to blackmail India over the triumph card which he had in his hands for winning over the Plebiscite in favour of India in the United Nations. There remained only 2 independent candidates for the contest from Kana Chak and Akhnoor seat from Jammu District but they too withdrew from the contest. In this manner, Sheikh Abdullah captured all the 75 Constituencies in the Constituent Assembly. The case had been taken in the United Nations by India under a well thought conspiracy hatched by the Britisher through Lord Mountbatten who was Governor-General of India by giving a wrong advice to Pandit Jawaharlal Nehru on the pretext that Kashmir problem would be solved very soon. Lord Mountbatten had influenced Pandit Nehru. In the United Nations, Anglo-American block got a readymade handle in their hands to blackmail India and help their Protege State of Pakistan which was created by them under a deep rooted conspiracy to have a check on Russia and China as well as protect their economic rights and interests in the oil wells of Muslim block of Arabian countries.

The elections of 1951 had lost their credibility after the disturbances of 1947 when Hindu Population stood uprooted from about half of the area from Jammu Region and from whole Muzafarbad District and part of a Baramulla District from Kashmir region. Some of them were massacred in communal frenzy by the locals and some by Pakistani raiders. They were not allowed by Sheikh Abdullah to settle in Kashmir Province but pushed to Jammu Region. Similarly, Muslims of Jammu Hindu majority areas too equally suffered. A substantial number of them migrated to Pakistan. In nutshell, there was no authentic electoral roll prepared by an independent agency to prepare an authentic report of eligible voters.

Graig Bazter, in his book The Jan Sangh: A Biography of an Indian Political Party (page 117) has written that “this was not unimaginable that Praja Parishad under those circumstances might have chosen other ways to achieve its objects.”

Sheikh Abdullah was in a great hurry to take revenge with the royal family and with the aid of his selected and then elected 75 members got a tainted and illegal report prepared on 10 June 1952 to achieve his life-long objectives. First of all, he abolished the Autocratic rule of Maharaja Hari Singh under whose sovereign authority that Constituent Assembly was constituted under the Constitution Act of 1939 which recognized the sovereign authority of the Maharaja even over the Legislature. He had totally forgotten the written pledge given to Maharaja in his Letter of Apology dated 29th September 1947 whereunder his remaining conviction and sentence for 1 ½ years for an offence of sedition was pardoned by the Maharaja. Maharaja was the sole fountain head of Sovereign authority and at the assurance of Prime Minister Pt. Nehru on 5th March 1948 had appointed him as Prime Minister of the State by terminating the tenure of his appointed Prime Minister Mehr Chand Mahajan whose tenure had to expire in 1952.

The elections of 1957 for Legislature Assembly were held under local Election Commission and Bakshi Ghulam Mohammad at that time was the Prime Minister. Sheikh Abdullah in 1953 was dismissed from the post of Prime Ministership as all his Cabinet Ministers had revolted against his autocratic rule as well as available reports for entering into conspiracy with foreign powers to become an independent ruler. He was put under detention. Rest is all a matter of history.

Maharaja during his rule had given equal value of voting for the elections of Praja Sabha to the region of Kashmir also. During the elections of 1957, Regional Political Party Praja Parishad which was the only organized cadre based party could win only 5 seats despite 17 nomination papers were filed to contest the elections. There was great hue and cry for malpractices in these elections. Credible evidence was available that ballot boxes were defective and in them votes were tampered.

The jurisdiction of the Election Commissioner of India had not been extended in the State of J&K, which was extended only after the year 1960 when Delimitation Commission was constituted under the Chairman of Justice GI Kapur with RC Soni, both Retd. Judges of Punjab High Court and KVK Sundram Election Commissioner of India. After the receipt of their report and census of 1961, the jurisdiction of Election Commission of India was extended. Elections of 1951 and 1957 were conducted under the control of State Elections and Franchise Commissioner. Before 1967, nominated members were sent to Lok Sabha from the State of J&K. The Elections of 1962 were held under the control of Election Commission of India. Fundamental rights were not available to the people of Jammu and Kashmir during Sheikh Abdullah’s rule till 1953. After his arrest, the Govt. headed by his Deputy namely, Bakshi Ghulam Mohd by virtue of Constitution Application Order 1954, fundamental rights were made applicable and available but with few modifications. During the elections of 1962/1977 Jammu Region had been able to secure 2 more seats in instalments at different times and thus number rose to 32. From Kashmir region one seat was decreased and it was made 42.

When census of 1981 were held, Sheikh Abdullah was the Chief Minister of the State. He in 1979 sumoto had created 3 more Districts in Kashmir Valley. Under political compulsions he constituted Delimitation Commission and retired Chief Justice of J&K High Court late Wazir Janki Nath was appointed as its Chairman and Justice Mian Jalal-ud-Din and S. L. Shakdar Chief Election Commissioner of India (Ex-officio) as Members. After the expiry of the term of Chairman J N Wazir Chief Justice (Retd.), Mian Jalal-ud-Din was made the Chairman. He occupied this position for a pretty long time but did not give his report. Ultimately he resigned in 1991. Vide SRO No.52 dated 29-1-1991 Justice K.K. Gupta was appointed as Chairman. This was hey day time for militancy and some Muslims retired Judges from Kashmir Valley as members had to tender resignations under threats. Shri TN Seshan at that time was Chief Election Commissioner and by virtue of his official position he became the third member. The predecessor of third member Sh. TN Seshan (Pirri Shastri) used to attend the meetings but TN Sheshan did not attend any meeting as he was not satisfied with the working of the Commission and his adverse comments were coming in the newspapers. The State was under Governor rule from 1990 to 1996 and the President of India in order to make the Commission functional amended the relevant Section 3 of J&K Representatives of People Act 1957, which deals with the Constitution of a Delimitation Commission. This was done through ordinance and after the elections of 1996, when Farooq Abdullah had come into power, the ordinance was made law. By virtue of amendment Deputy Election Commissioner was appointed 3rd member.

This Commission had finalized the Delimitation report on 27.04.1995 which was published in Extra Ordinary Issue of the State Gazette on 28.04.1995. 46 segments of electoral constituencies were made for Kashmir region, 37 for Jammu region and 4 for Ladakh region. The final report had been signed by the Chairman Justice Retd. K.K. Gupta, the sitting Judge of J&K High Court Mr. Bilal Nazqi and Deputy Election Commissioner on behalf of Election Commission of India. It is misfortunate for the inhabitants of Jammu region to remain deprived of getting their due share because of the amendment of Section 47 of the Jammu and Kashmir Constitution which was done in 2002 (during Dr.Farooq rule) and by virtue of it any addition or alteration of Constituencies upto the year 2026 stands freezed. In this way, the domiciles of Jammu region has to face injustice of having equal rights of voting till 2031 when census would be held and Delimitation Commission constituted.

The political party of J&K by the name JKNPP challenged the amendments of the relevant provisions of J&K Representation of People Act as well as Section 47(3) of the J&K Constitution by filing PIL in the High Court of J&K which was decided by the Division Bench reported in (2010 (1) SLJ Page 1). The writ petition was dismissed and the relevant portion in a concised manner is reproduced: The plea of the petitioner was that the stoppage of readjustment of the extent and boundaries of territorial constituencies affects democracy as enshrined in the Constitution was not accepted. The Court was swayed by accepting the principles that, “Delimitation for the purpose of dividing the State into single Member territorial constituencies to the extent of number of members of the Legislative Assembly is the mandate of the Constitution and is basic feature of democracy contemplated in the Constitution but readjustment of the extent and boundaries of such territorial constituencies upon completion of each census is not such a mandate, nor it is contemplated to be the basic structure of democracy contemplated in the Constitution.” It was further held that the right of equality as guaranteed to the citizens of India does not entail exact equality in the matter of weight of the voter by reasons of the other provisions contained in the Constitution of India.

The petitioner felt aggrieved from the Judgment of the Division Bench and filed Civil Appeal Number of 2010 (arising out of SLP (C) No.22224/09 in the Hon’ble Supreme Court which was dismissed on 9 Nov. 2010. The main thrust in appeal was a challenge to the vires of the amendment of Section 3 of the J&K Representation of People Act and amendment of Section 47 (3) of the Constitution of J&K on the ground that composition of various constituencies would continue despite the census operation being carried out. It was also pleaded that without giving the proper representation of the people of the State, the assurance of delimitation will be defeated in the elections and that the figures of the census of 2001 had required setting up of a Delimitation Commission after accepting it so that true and popular view of the democracy could surface. It was also pleaded that against the 37 constituencies of the Jammu Region, some are reserved for SC & ST whereas out of 46 constituencies in Kashmir Region not even a single seat is reserved for them. It would result in that reserved seats would not be rooted or changed for 35 years. The appeal was rejected and some salient features of the Judgment in brief are set-down here, :

” in Para 11 of the Judgment the Supreme Court has observed that no substantial challenge has been made to the amendment of the Constitution of J&K in the writ petition by the appellant. In Para 12 it is further mentioned, “we do not find adequate pleading challenging the amendment to Section 47 of the Constitution of J&K.” It is also reiterated in the Judgment that during arguments it was pleaded that not holding of a delimitation exercise immediately after the completion of the census as a result of the aforesaid amendment is unconstitutional. That amendment was itself violative of basic structure of the Constitution of India as applicable to the State as well as to State Constitution.

These arguments were repelled by the court after holding that delimitation laws made under Article 327 of the Constitution of India are immune from the judicial test of their validity and the process of allotment of seats and constituencies is not liable to be called in question in any court by virtue of Article 329 (A) of the Constitution of India read with Section 142 (A) of the Constitution of J&K. In holding so, the apex court was guided by the law laid down by the Constitution Bench of the Supreme Court in the case of RC Poudyal and others vs. Union of India and others (1994), Supp 1 SCC 324 wherein it is held that perfectly, arithmetical equality of value of voters is not constitutionally mandated imperative of democracy and that even if the impugned provisions make a departure from tolerance limits and the constitutionally permissible latitudes, the discrimination arising are justifiable on the basis of historical considerations peculiar to and characteristic of the evolution of Sikkim’s Political Institutions and the same is true in case of J&K State. While dismissing the appeal, it was held that challenge regarding basic structure of the Constitution is also not based on a sound principle.

With due respect to the Division Bench Judgment of the J&K Hon’ble High Court as well as of the Hon’ble Supreme Court, I would say that on behalf of the domiciles of Jammu a correct and true factual and legal matrix was neither set out in the pleadings nor advanced during the arguments. In my view the ratio decidendi of the above referred Judgments is not applicable to the case of the J&K on the basis of the following grounds:-

1. The Jammu and Kashmir State has the special status of having its own Constitution in view of the Judgment of the Supreme Court 2017 (2) SCC 538 State Constitution does not have equal status as Constitution of India which is paramount in State of J&K. The report given by Justice K.K. Gupta is violative of relevant provision of Constitution as well as Section 50 of the State Constitution and provisions of the J&K Representation Act of 1957. Equally, subsequent amendments in Section 47 (3) of the State Constitution and J&K Representation of People’s Act also suffer from inherent invalidity. Section 50 of the State Constitution enshrines total number of 36 members in the Legislative Council, out of them 11 members have to be elected by the members of the Legislative Assembly from amongst persons who are residents of Jammu Province and 9 members have to be elected by the Legislators hailing from Kashmir Region. This parity of 2 seats have been maintained after the elections to be held in the manner provided under that Section from Electoral Colleges as well as by way of nominations. The framers of the Constitution by giving majority of 2 members to the Jammu Region has followed the mandates of Section 4 of the J&K Representation of People Act (hereinafter referred to as Act). The section says that while distributing seats in the Legislative Assembly five things have to be kept in view and they are :

i) population as ascertained at the last preceding relevant figures;

ii) Geographical compactness;

iii) Nature of terrain;

iv) Facilities of communication and

v)the like consideration.

2. Injustice was done to the domiciles of Jammu Region from the year 1951 when constituent Assembly was framed as without any authentic number of population of the two divisions, the representatives were selected and got elected. This factual fact has already been stated above in details showing arbitrary and despotic nature of the then Prime Minister of the State. Not only that, mass migration of Hindu population from Kashmir Region estimated about 3.5 lakhs inclusive of migration faced by some patriotic members belonging to majority community on the onset of militancy during 1990 have not been taken into account by Delimitation Commission. Not only that, remaining three requirements of Section 4 of the Act as stated above, were not considered. Besides that, such reservation of seats for SC & ST and the nature of dominant monolithic and more heterogeneous nature of population of both the regions. All these facts were taken into consideration by the framers of the Constitution of the State. In this manner, the report of the Delimitation from the very beginning was void ab initio.

3. The ratio decidendi of the case of Kesavananda Bharati vs. State of Kerala 1973 SC 1463 should have been reflected in the pleadings and reiterated in the arguments. This was a case decided by 13 judges, wherein the basic structure of the Constitution was held to be of unalterable nature. The basic structure in its essential broader sense has been stated consisting of the following features:- Supremacy of the Constitution.

Republican and democratic form of government.

Secular character of the Constitution.

Separation of powers between the Legislature, the Executive and the Judiciary.

Federal character of the Constitution.

The Hon’ble Supreme Court in the said appeal (SLP 22224/09) filed by JKNPP in para number 29 has elaborated the concept of basic structure in a more explicit, transparent and exhaustive manner by stating, “it is hazardous to define what is Basic Structure of the Constitution as what is basic does not remain static for all time to come.” They have referred 14th edition of Shorter Constitution of India by DD Basu and have noted down the basic features which have been culled out from various pronouncements of the Supreme Court. Although the above noted five ingredients of Basic Structures remain the genesis but their species have been enumerated in the judgment under heads (a) to (v). Shorn of un-essentials which are not germane to the present controversy, the remaining are stated hereunder:

(b) The principles behind Fundamental Rights.

(c) The objectives specified in the Preamble to the Constitution.

(i) Freedom and dignity of the individual.

(m) The ‘essence’ of other Fundamental Rights in Part III.

(n) The concept of social and economic justice – to build a welfare State. (q) The principle of free and fair elections.

(r) Limitations upon the amending power conferred by Art. 368.


Adverting to the facts of the present case in hand, the amendments in question have violated the secular character of the Constitution of J&K as well as that of Constitution of India because the principles behind the Fundamental Rights, their essence and dignity of the electorates of Jammu region are denied in violations of the guarantees of Fundamental Rights enshrined in Articles 13, 14, 15 and 21 of the Indian Constitution.

The secular character is one of the hallmarks of the basic structure but there is discrimination with the electorates of Jammu region in respect of the weight of their votes on the basis of religion and domicile. Hindus are of minority status in the State but in Jammu region they are in majority. Instead of protecting their minority status the value of their votes have been devalued. As an instance, the electorates strength of Gandhi Nagar and East Constituency of Jammu region of the year 2008 are taken as an example in contrast with two constituencies of Srinagar City (Khanyar and Habakadal) the total of the two constituencies of Srinagar City remains behind by 45,062 electorates of single constituency of Gandhi Nagar. Same is the case of Jammu City East Constituency.

To add fuel to the fire, appropriate equality in the voice of every voter irrespective of his/her religious faith in the Jammu region remains a cry in the wilderness. The fundamental right of equality without any justification or classification runs contrary to the Preamble of the Constitution and basic fundamental structure. In other words, the electorates of Jammu region can claim equal or more weight of their votes because their case falls within the bounds of criteria laid down in Section 4 of the Act as they have more population in many defined areas of their respective Assembly Constituencies.

It is worthwhile to mention here that State Legislature and Indian Parliament in the Centre have the powers to amend their Constitutions as well as Statutes falling respectively within their specified domains. This power is restricted to the extent of not rendering any fundamental right as redundant, extinct or abrogated but in the present case, the State Legislature has exercised this power without any justification or classification and thus, basic features of the Indian Constitution under above said heads (c), (m) and (n) stand denied. The Constitution does not allow any such amendments under Article 368 of the Constitution which goes against any of the basic feature.

On the same basis the principle of free and fair elections as envisaged under above stated head (q) and (r) can also be not altered. The above stated heads (q) and (r) are to be given harmonious construction in contrast to contradictory construction. The conclusion arrived at by the Hon’ble Supreme Court in para 31 of the judgment in appeal is the result of not presenting the case on true facts. This discussion would remain incomplete without referring to the Constitutional scheme on the basis of historical facts when Constitution of J&K State was enacted because in the judgment in appeal, historical facts of Sikkim State were taken into consideration by allowing the reservation on less number of voters as a whole. The Preamble is clearly an adaptation of the Preamble of the Constitution and the Preamble of the State Constitution besides other essentials has laid stress on EQUALITY, FRATERNITY. In this manner also, the case of the domiciles of Jammu region is also fortified and the amendment affected in Section 47 (3) of the State Constitution which besides in contradistinction with Section 50 of the State Constitution renders the amendment unconstitutional. The principles of free and fair elections have also been recognized as one of the basic feature.

Both the basic features (r) and (q) as stated above have to be read not to supplant but supplement each other. In view of the discussion made above, the law laid down in above referred RC Poudyal’s case does not apply in all fours to the factual and legal issues involved in this case and the need of the hour is to re-agitate the points raised in this write-up in a proper forum.

At the end, it is stated that in a democratic polity which is governed by written Constitution and where rule of law is paramount. Judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the hope and faith of the people in the constitutional system are not atrophied.

Liberty of thought, expression, belief, faith and worship.

(The author is former Justice of J&K High Court. Member Governing Council of National Foundation for Communal Harmony Govt. of India (NFCH).)

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