Tuesday, May 26, 2020
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Governor is competent to hold delimitation of Assembly constituencies in J&K

By Prof.Bhim Singh

Many a blunders and wrongs have been committed by the national leadership in J&K to appease the rulers in the state for one reason or the other. One of such blunders was allowing Dr. Farooq Abdullah to amend Section 47 of the J&K Constitution to the extent of adding a proviso in Section 47 to the extent, “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.” Sub-section 3 of Section 47 provides that, “Upon the completion of each census, the number, extent and boundaries of the territorial constituencies shall be readjusted by such authority and in such manner as the Legislature may by law determine.” This would mean that the Legislature (during Governor Rule this legislative power is vested in the authority of the State Governor). He has power to constitute Delimitation Commission for the readjustment, reallocation of number of seats in the legislature. The last delimitation on provisional basis was held in 1993 by Governor Shri Jagmohan. J&K was divided into 87 Assembly constituencies. The State Assembly amended the State Constitution with the full backing of eight sitting BJP MLAs, inserted the ‘proviso’ that there shall be no such change till after the census is taken after the year of 2026. This literally would mean that there shall be no change in the present status till after the census shall be taken in 2031. The Panthers Party’s only MLA, Shri Harsh Dev Singh opposed this draconian Law. The JKNPP took this matter through a petition before the High Court of J&K.

In the words of Justice Dr. A.S. Anand as carried in his hook,
“The main grievance of the writ petitioner before the High Court was that in view of the postponing of the delimitation of constituencies as a result of the aforesaid amendments, the growing imbalance and the matter of composition of various constituencies would continue. It was argued that without an exercise in delimitation immediately upon the completion of census operations for the election in Jammu and Kashmir State will not reflect the true voice of democracy and the popular view would not find a proper representation. The writ petition was dismissed on 2nd June, 2009 and the Jammu & Kashmir National Panthers Party filed Special Leave Petition (C) No.2224/09 in the Supreme Court.”

“The Supreme Court on 9th November, 2010 dismissed the appeal arising out of SLP challenging the judgment and order dated June 2, 2009. In the Supreme Court Professor Bhim Singh appearing for the Jammu & Kashmir National Panthers Party submitted:

“That of the 37 constituencies in Jammu (Pradesh) some are reserved for Scheduled Castes and Scheduled Tribes, whereas of the 46 constituencies in Kashmir Valley, not a single one is reserved for Scheduled Castes and Scheduled Tribes. But if the census operation is properly perused, it becomes clear that some of the constituencies in the Kashmir Valley should also have been reserved for Scheduled Castes and Scheduled Tribes, had a delimitation exercise been conducted on the basis of census operation. The impugned amendment is, therefore, unfair, undemocratic and unconstitutional as it seeks to defer the delimitation exercise only upon the declaration of census results after 2026.” (This has been widely carried in the 7th Edition of Justice Dr. A.S. Anand book on J&K Constitution).

This judgment of the Supreme Court failed to appreciate the geographical, social and political map of the state. Firstly, J&K is one state and as long as it continues with same status, the Assembly constituencies have to be divided on provisional basis keeping in view the population, geographical terrains and territorial contiguity. Ladakh has four Assembly seats, though, the area is more than double that of the rest of the state. Similarly, Kashmir Valley, has an area of 13,000 + sq. kms. just half of the area of Jammu Pradesh. The voters’ strength is also disputed. In 2002 Jammu Pradesh had two lacs (200,000) more voters than the voters’ strength in Kashmir Valley. The terrains in Jammu Pradesh are much more difficult and one-third of the area in Jammu Pradesh has no means of communication. The tragedy rather political discrimination appears on the face of it that Jammu Pradesh has 37 Assembly seats whereas Kashmir Valley has 46. Shockingly, the Scheduled Tribes (Gujjars, Bakerwals and Gaddies) with 11% population have not been granted any political reservation in the Legislative Assembly/Legislature. Seven seats in the Assembly have remained reserved for the past over 18 years (the tenure of the Legislative Assembly in J&K was extended to six years in 1976 when Sheikh Mohd. Abdullah was the Chief Minister of the state) and they shall continue to be so till after the census of 2031 shall be taken. This side of grave injustice and discrimination was not considered by the successive governments or by the Supreme Court. Besides, delimitation of the Districts and the Blocks was held in 2005/06 with the result that several Assembly constituencies have fallen within the territorial jurisdiction of two or three districts. This is also against the guidelines of the Representation of People Act, 1981. There is a gross violation of the electoral laws on the ‘vote value’ as some constituencies e.g. Gurez in Kashmir Valley has less than 18,000 voters whereas in ‘Jammu West’ has nearly 2,00,000 (two lacs) voters. None of the Assembly constituency in Kashmir Valley has more than 70,000 voters, whereas, most of the Assembly constituencies in Jammu Pradesh comprise more than 80,000 to 2,00,000 voters. This is a situation where need lies to rationalize the distribution of the Assembly constituencies in the two regions of the state keeping in view, the terrains, geographical parameters. There is a need of geographical readjustment and relocation of reserved constituencies. More than 1.5 million refugees of POK have been residing in Jammu Pradesh who hold the status of permanent residents in the state. The Constitution of J&K in its Section 47 has reserved 24 seats for the permanent residents of POK. Nearly one-third of the population of POK has been residing as refugees in Jammu Pradesh. The seats in the Assembly reserved for that part of the state need to be relocated to the permanent residents of the state presently residing in Jammu Pradesh as refugees. This is most humane problem which needs to be taken care of by the Constitution as a matter of Constitutional right of the state residents living as refugees within their own state. The appalling condition of about 65,000 refugees from Pakistan has been burning ‘humanitarian’ problems. They need to be treated under International Law and granted civil and political rights in the sate.

The Constitution of J&K provides that the Delimitation Commission shall be constituted by the Govt. of J&K for the delimitation of the Assembly constituencies. Delimitation of the Assembly constituencies have four main areas to be touched. Firstly, the terrains, secondly the population, thirdly the relocation of reserved seats, fourthly, political reservation to Scheduled Castes and Scheduled Tribes also. This has not been done for the past over two decades.

The Governor is competent to constitute Delimitation Commission within the meaning and scope of Section 3 of the Representation of People Act, of J&K as well as under the mandate of Section 47 of the Constitution of J&K. In the absence of the Legislative Assembly or during the Governor Rule in the State, the Governor is fully competent to take all or any decision in other words he enjoys powers of legislature/executive both. Several decisions were taken by the past Governors in the absence of the State government which became laws at later stages. The Governor of J&K has every responsibility to uphold the principles of natural justice and rule of law in the state so that any discrimination or injustice with a region on political ground is washed away for all times.

The Governor is competent to amend Section 47 of the Constitution to delete the objectionable proviso which barred the Constitution of the Delimitation Commission. Section 3 of the Representation of People Act gives heavy mandate to the Governor to constitute a Delimitation Commission for the purpose of delimitation of the constituencies. The census was conducted in 2011 and the figures also available with the Govt. of J&K. The notes prepared for holding delimitation for the Assembly and the Lok Sabha constituencies lies in the stores of the Election Commission of India which were prepared by Justice Kuldip Singh Delimitation Commission constituted in 2001.

Besides, in 2002 a Common Minimum Programme (CMP) was signed by Mrs. Sonia Gandhi, Dr. Manmohan Singh, Mufti Mohd. Sayeed, Prof.Bhim Singh (the author) and CPM leader Yousuf Tarigami making a solemn commitment to hold delimitation in J&K. Both the PDP and the Congress joined hands with National Conference to defeat this move. Only Panthers Party was left single handed. The Panthers Party withdrew its two ministers from the coalition government with the result coalition government later headed by Shri Ghulam Nabi was defeated on the floor of the House and Assembly dissolved.

There is no possibility to form a coalition government at present whereas Shri N.N. Vohra, the Governor of J&K should constitute Delimitation Commission without any delay as he enjoys both executive and legislative powers under Governor Rule.

This shall remove many doubts and anger from the minds of the Scheduled Tribes and dilute the friction and a sense of political discrimination with the residents of two provinces. It shall be in the greater interest of restoring confidence in the minds of the people of all regions of the state so that peace and development rolls back towards peace and harmony. A great and noble step indeed!

(The author is a Chief Patron, National Panthers Party)

(Opinions expressed in write-ups/articles/Letters are the sole responsibility of the authors and they may not represent the scoopnews.in)

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