B L Saraf
The exercise which commenced in Jan 2020 for the delimitation and adjustment of Assembly and Parliamentary constituencies, in J&K, is nearing completion. The Delimitation Commission undertook the job as per the mandate of Sections 59 to 63 of The Jammu and Kashmir Reorganization Act,2019 (Shortly Act hereinafter) and Section 3 of the Delimitation Act 2002. A draft report of the Commission is in the public domain.
As expected, the report has generated a debate which may soon turn into an acrimonious one, with tendency to further polarize the already riven JKian society. Undoubtedly, it has raised very serious questions about its constitutionality and given fodder to those who see a political intent in it which, according to them, suits the political agenda of the ruling establishment in Delhi. Both arguments have considerable merit. Let us first look to the Constitutionality aspect of the report. Though not vouching for its legality in view of the apparent contradictions between Sections 62 and 63 of the Act, we may leave the discussion to the other day so far it pertains to the delimitation of Assembly constituencies and continue with respect to the adjustment/ delimitation of the Parliamentary constituencies.
Regarding composition of the House of people (Lok Sabha) the Union Constitution has the following scheme / provision;
Relevant portion is reflected here
Article 81 (2) (b) Of the Constitution says that each State shall be divided into territorial constituencies in such a manner that ratio between the population of each constituency and number of seats allotted to it is, as far as practicable, the same throughout the State .
(3) In this Article, the expression “population” means the population as ascertained at the last preceding census of which the relevant figures have been published.
Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed-
It makes a plain reading that there can be no delimitation or the adjustment to the Parliamentary Constituencies till figures for the first census taken after the year 2026 are published. Remember the delimitation is not restricted to increase or decrease in numbers only. Any change in the existing boundaries which will necessarily entail change in demographic number, also, falls within the definition of delimitation. So, the exercise is always subject to the census which, as referred above, stands frozen till beyond 2026. The question, therefore, arises for the consideration is: Could provisions of the Act override what is unambiguously provided for in the Constitution? After all the House of the People (Lok Sabha) is a creature of the Constitution: its composition, number of constituencies and their area are all regulated by the Constitution. The Union Constitution is the fountain head from where all laws of the land flow. Therefore, their subordination to it is inbuilt. It is precisely for this reason that The Constitution of Jammu and Kashmir (now inoperative) had fallen in line and incorporated, in 2002, the corresponding amendment to the Section 47 and postponed readjustment of the Assembly constituencies till figures of the first census taken after 2026 were published. This amendment was upheld by the Supreme Court.
It may be mentioned here that before the application of the Act delimitations of Assembly constituencies was done under the provisions of State Constitution and J&K Representation of People Act of 1957: while as delimitation of the Lok Sabha constituencies was carried out under the Constitution of India.
It defies geography, topography, compactness of the area and connectivity when we club districts Poonch and Rajouri, in Jammu Division, with Anantnag, in Kashmir Division, to make a one Parliamentary constituency. In a way such a clubbing goes against letter and spirit of Section 60 (2) (b) of the Act , which says ” all constituencies shall ,as far as be practicable, be geographically compact areas, and in delimiting them, regard shall be had to physical feature, existing boundaries of administrative units and conveniences to the public….” We have fears that someday this matter may land in the Apex Court for a final say.
Next, the move entails a political question of immense importance for the future of Jammu and Kashmir. Still, we are not out of partition hiccups which resonate at the international level . Then more needs to be done to forge an emotional and political unity among various sections of the society, in J &K which, we fear, may be further impaired by the current exercise.
Here one feels compelled to recall the gloomy days of 1947 and early 50s of previous century. India was grappling to hold on to the State which had acceded to it on 26th October 1947. The UN was coming down heavily to ” settle the dispute “. In a bid to force a decision the UN Security Council, on March 14, 1950, appointed Sir Owen Dixon as the single mediator in Kashmir. His job was to bring about demilitarization of the state (as it was on 15th August, 1947 ), and was authorized to make suggestions which would be likely to contribute to the enduring solution to the “dispute ” He put forward a plan that wherever the desires of the inhabitants were known, the territory should be allocated between India and Pakistan , due regard being given to the geographical, economic, and demographic considerations. But where the desires of the people were uncertain, a plebiscite should be held to ascertain them.
As regards the plebiscite Dixon said “If there is any chance of settling the dispute by agreement, it lies in evolving some means of allocating the valley of Kashmir rather than through overall plebiscite.” Dixon may not have succeeded in his mission but he was able to appreciate nub of the dispute. So, he had suggested the apportionment of State, including Ladakh and POJK, between India and Pakistan, except the Kashmir Valley and some portions of Chenab valley and some areas of Pirpanchal- in Jammu region. Because, he thought that given the clear demographic character of these area desires of the people living there in were well known. The left over Kashmir Valley and parts of Jammu would go the two countries depending upon the result of plebiscite which he had suggested.
The plan died with the death of its author. Moreover, with the passage of time and happening of many events across the globe the sentiment of separation from India has considerably ebbed out of the hearts of those who had harbored it. So, there are no takers of the plan. Nevertheless, the element of emotional bond that could bind together people of disparate State is still missing. Our society is polarized, the attitude and political preferences have hardened to the unpleasant levels .More so, after J&K underwent tectonic political and constitutional changes in August 2019. The delimitation report is going to have a catalytic effect on the polarization.
We are not sure how the ‘nationalists’ in Jammu will take to the clubbing of a major chunk of Pir Panchal range with South Kashmir. But one thing is sure that former Chief Minister Mufti Sayeed must be smiling in his grave. A significant section of people living in Jammu plains targeted him for his urgency to upgrade the Moghul Road. They considered the opening of this road as an attempt to enlarge Valley’s cultural and political influence on the strategic parts of Jammu region and create Greater Kashmir – a prospect which now looks on the horizon.
(The author is former Principal District & Sessions Judge)
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