Delimitation and equality

Sunil R.P. Sethi
For the last seven decades or so , Jammu and Ladakh have been reeling under intense and hostile discrimination by lopsided provisions of Jammu and Kashmir Constitution and maliciously modified application of provisions of Constitution of India to the state by successive State Govts. mainly of Congress and National Conference at different stages of history of the State after Independence. The heat of discrimination can be felt when one talks about commoner from borders and cities of Jammu to plains and deserts of Ladakh who all have sense of extreme deprivation at the hands of political forces of Valley who had been given the right to rule despite being less in number and far less in area .
For the sake of true Democracy it is imperative that each vote should have same value to the extent possible . In present scenario one vote of Kashmiri is of high value than vote of Dogra or Ladakhi which is thoroughly inconsistent with principles of democracy.
Constitution of Jammu and Kashmir mandates 111 constituencies for State Legislative Assembly out of which 24 has been freezed for deferred representation to areas of the state under illegal occupation of Pakistan till that territory is reclaimed . Provisions of constitution have been historically moulded in a manner to create Kashmir supremacy in the political map of the State .
With the formation of Modi 2.0 Govt in the Centre and appointment of Amit Shah as Home Minister , high hopes are created in minds of Jammu and Ladakh that finally all walls of discrimination against their regions will be broken and bulldozed. Home Minister starting on a positive note as per indications coming from media , is welcome step in right direction. Amit Shah has huge opportunity to finish the unfinished issue of Kashmir which Nehru denied to Sardar Patel to solve. Under new Govt people of the State have real hope of removal of all discriminations.
First step in the direction will be revoking 2002 Constitutional Amendment in the State Constitution by which Section 47(3) was amended to stop Delimitation for census after 2026 . It is important to note that Section 47(2) provides that there will be delimitation of constituencies after every census , last of which was held in 2011 . It is a different story that figures of Census for the state are unbelievable when we compare them with voters in elections .Freezing of Delimitation was with the purpose of denying equal rights to Jammu and Ladakh. In the event of delimitation Jammu will have more seats than Kashmir considering the population and area.
It will further ensure reserving of constituencies in Kashmir for reserved categories which may include even Schedule Tribes etc which is to the disliking of Kashmir mainstream parties .
With the Presidential Proclaimation 1223 of 2018 issued by President of India all Legislative powers of the State Legislature are presently vested with Parliament and as such amendment of 2002 can be taken back by Parliament legally. That will ensure creating Delimitation Commission which can give its report in time bound manner to be accepted by President to act upon it to undo historical political blunders .
POJK Seats
State Constitution infact provides for 111 seats for state Legislative Assembly but freezes 24 seats for POJK areas to be released when that territory is reclaimed . But what about almost a million persons who migrated from areas now under illegal Occupation of Pakistan? What is the impediment in them representing their territories instead of being mixed up with electorate of Jammu province . This has again been done to deny Jammu the right of representation as almost whole of the population of POJK is in Jammu and giving seats of POJK to them would increase strength of Jammu representation which was not to the liking of Kashmir Centric politicians of the state . This denial of basic rights to POJK Refugees to represent their own territories and constituencies have to be given to them to do justice with them . This can be done by deleting Section 48 from the state Constitution which freezes these Constituencies.
Art 35 A
If there is one article which has created more havoc to the society in the State of Jammu and Kashmir, it is Art 35 A . It is the ambassador of all separatist theology existing in some part of the State . It creates wedge between Indians by creating a separate class of Indians that is State Subjects of Jammu and Kashmir. It has taken away rights of West Pak Refugees, Gorkhas, Valmikis living in the State as also of Indians including Children of Female State Subjects married outside state to non state subjects .
It is a huge opportunity which has come the way of the state creating situation conducive to remove Art 35 A and all blots which came with it . Art 35 A was created by Presidential Order under Art 370 after state Govt gave consent for it . It can be taken back in the same fashion by Presidential Order after obtaining consent from state govt . State Govt presently is the Governor Administration. Such a situation is very well legally sustainable.
Delimitation of Parliamentary Seats
For effective representation to the people of state on equitable norms it is imperative that there should be delimitation of Parliamentary Constituencies for the state as well . On the basis of voters , population and area the whole nomenclatures have to be changed and if we add POJK representation also then Jammu will have more seats than Kashmir.
Art 370
Ultimate aim of removing the harbinger of all equalities is undoubtedly Art 370 which intends to create an artificial and non existing barrier between the State and Union . It is the stated aim of Bhartiya Janata Party to remove Art 370 and statements in this regard has been made in the recent past by its main leaders including the Prime Minister and also by now Home Minister. Litigation to declare Art 370 as null and void is pending in Supreme Court and on its merits it will be difficult to Save Art 370 from being declared unconstitutional as it is not only beyond Legislative Competence but is also against basic structure of the Constitution. With a huge majority in Parliament and almost consensus throughout country to remove Art 370 across political classes , ways can be found to remove it through Legislative Process .
Effort to isolate Pakistan in international community as also constricting all growth avenues to it at the cost of India , should continue further and war against Pak has to be fought on all fronts, be it militarily, diplomatically, politically, natural resources. It has to be conveyed firmly to Pakistan and its stooges in the state that there is no role of Pakistan in Kashmir from any angle.
All statements by politicians to talk with Pakistan have to be firmly and negated .
Separatists and Militants
Time has come to deal with not only militants but all also separatists mercilessly. It has to be kept in mind that no regard can be shown to anyone who causes or has desire to cause harm to the Nation . Zero tolerance should be the key while dealing with separatists and militants alike .
We have wasted much time in negotiating with separatists and keeping them in good humour too but time has taught that such people do not deserve such treatment.
(The author is senior advocate)