Saturday, June 19, 2021
 News Details
Reservation for Pandits in Legislative Assembly

B L Saraf

The delimitation process of Assembly Constituencies ,as envisaged by The J &K Reorganization Act , 2019 (Act ) is underway . Delimitation Commission constituted under Section 3 of the Delimitation Act ,2002 is on the job. Need for delimitation of the constituencies arose because the number of seats in J & K legislative Assembly has been increased to 114 and there is a requirement to determine the number of seats to be kept reserved for Scheduled Castes and Scheduled. Section 60 of the Act has laid down Commission’s terms of reference.

The delimitation process has generated hope among those sections of the state’s society which feel neglected and political disempowered. Finding an opportunity to share space in State’s legislative wing and be a part of the decision making process the displaced Pandits feel animated. They have approached the Commission with their case for having a statuary share carved out for them in the state assembly.

Social Aspect

Among the myriad ethno , cultural religious and other groups that exist in the melting pot called India , the place of numerically small but significant Kashmiri Pandit community stood out as being privileged . The community which down the ages has made immense contribution to overall social ,political and religious life of our nation is facing existential threat today . Away from home they are fast losing their identity and, as a distinct race , is on the verge of extinction . How can KP identity survive as a distinctive and distinguished culture group is the moot point . Primarily ,for this reason it should come within the ambit of United Nation’s Declaration on Rights of Minorities ,which General Assembly adopted recalling Resolutions 46/115 of 17 .7 .1991 , 1992 /16 of 21 Feb 1992and 1992 /4 of 20.7 .1992 of Commission on Human Rights :

Art 1.1 Casts a duty on the state to protect the existence and the ethnic ,cultural ,religious ,linguistic identity of minorities within their respective territories ; and shall encourage conditions for promotion of that identity

Art 1.2 Calls upon the state to adopt appropriate legislative and other measures to achieve those ends

Art 1.3 Reserves a right for the person belonging to the minorities to participate in the decision making process at national and appropriate regional levels , where in they live .

It may be pertinent to recall that the National Commission for Minorities has expressed concern on the dwindling number of KPs . Former Chairperson of National Commission for Minorities ,Tahir Mehmood , wrote to CM Farooq Abdullah ,in 1999 , inviting his attention to the miserable plight of the minorities in J &K state . He wrote “ Our Hindu brethren are in minority in J &K .We owe them the sacred responsibility of all that is necessary to protect their lives ,properties ,human rights and civil liberties ” (No CH/4/88 NCM dt 21 01 1999 )

Another Chairman NCM, Gayural Hassan Rizvi told media on 13th June ,2017 “ If the definition of minorities has to be revisited it is my opinion that Kashmiri Pandits should be first people to be accorder minority status . When minorities in the entire country have that status ,privileges and opportunities why should Kashmiri Pandits ,who are as minority in the state , be left out ? It is something Parliament has to decide but I will definitely raise the matter in the appropriate forum .”

Affirmative Action :

These references are made to assert right of the KPs to have a say in the decision making process of the state which , keeping their small number in view , may be possible only by initiating an affirmative action in their favor , by reservation of seats in the Assembly . Following should be a guide in the matter :

Sangha Reservation :

The Sikkim Legislative Assembly has one seat reserved for Buddhist Monks who live in Monasteries across Sikkim . This constituency is not bound by geographical boundaries but spreads across whole state . The Supreme Court has in RC Poudial and another versus UOI & others ( 1994 SCC Sup 1 324 ) upheld its constitutionality on the argument that though these Monasteries no doubt are religious in nature yet they form a separate section of society . The Court appreciated Sikkim’s Sangha Assembly seat and characterized it as a perfect example of state’s unique political process to protect minority rights .

Anglo Indians :

Art 331 of The Constitution of India reserved seats in the Lok Sabha and made provision for state assemblies to reserves seats for the Anglo-India Community. Rationale behind the reservation was that Anglo India community constituted a religious , social as well as a linguistic minority , and being numerically small community interspersed all over India it was not possible for them to get represented in a general election . KPs are similarly situated, so the logic behind Anglo Indian reservation fully applies to their case . True ,this reservation has lapsed in 2020 but the logic behind it remains intact . It got lapsed because only 296 Anglo Indians remain in the country .

Basic Feature Of the Constitution :

In Indira Gandhi versus Raj Narrain ( AIR 1975 SC 2299 ) Supreme Court added following to the list of Basic Features law laid down in Keshvanand Bharti’s case ( AIR 1973 SC 1461 ) “ Democracy which means free and fair election.” In UOI V/S Association of Democratic Reforms (2002 ) SCC 294) Apex Court held “ Democratic Republic is a part of basic structure of the constitution .For this free and fair periodical elections based on adult franchise are must .” In People’s Union for Civil liberties case (2013 (6) Supreme 673 ) Supreme Court observed that the decision taken by a voter either to vote or not is his right of expression under Art 19 (1) a of the Constitution . It said “ the voters participation in the election is indeed the participation in democracy itself. Non participation causes frustration and disinterest ,which is not a healthy sign of a growing democracy.”

KPs right to vote is adversely affected for not having a proper vehicle of representation in the Assembly. The candidate who stands up in the constituency, where the exile Pandit once lived, is not known to him nor does the candidate bother to make himself known to the displaced voter, leave alone enquiring about his problems and concerns which the displaced Pandit would want the candidate to raise in the Assembly . In this situation where there is none to represent him the exile’s right to vote gets effectively scuttled . Once a bulk of voters is excluded from participating in the voting process it no longer remains a participatory democracy .

Article 2.3 of UN Declaration on Rights of Minorities reserves a right for minorities to participate in decision making process at national and regional levels ,were they live . The right can only be exercised if there is a proper forum available to them . For the KPs , Legislative Assembly could be the forum to feel politically empowered .

Remember , the Delimitation Commission is hemmed in by the constraints of law . It may not be able to address this demand of the KPs . It requires amendments to the Constitution and other law . Nonetheless, the commission can take note of the demand and make a necessary recommendation to the quarters concerned . If clause A could be added to Section 36 of now repealed JK Representation of Peoples Act to have polling booths away from the jurisdiction of a assembly constituency to facilitate a displaced person to cast vote ,similarly a constituency could be carved out for them to ensure their representation in the Assembly. Strength of PM Modi’s political and administrative will gives hope to the displaced Pandits.

(The author is a Former Principal District & Sessions Judge)

(Disclaimer: The views, observations and opinions expressed in above write up of Scoop News are strictly author's own. Scoop News does not take any onus or liability for the veracity, accuracy, validity, completeness, suitability of any of information in the above given write up. The information, facts or figures appearing in the write up in no way manifest the position, standpoint or stance of Scoop News and the Scoop News does not assume any encumbrance or answerability of the same. All disputes are subject to the exclusive jurisdiction of competent Courts and Forums in Jammu City Only)

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