Delimitation in J&K: Delhi can, but should it?  

Security person help an elderly man to cross a blocked road during strict curfew imposed to maintain law and order problem following the killing of most wanted militant Zakir Musa, in Srinagar. PTI

With the Centre signalling it is considering delimitation of Assembly constituencies in Jammu and Kashmir, a political controversy has erupted in the state with the regional parties opposing any such move. After the new Union Home Minister Amit Shah held back-to-back meetings with senior officials of various ministries and agencies in the past few days, reports emerged that delimitation of constituencies and appointment of a delimitation commission for the purpose was discussed.

National Conference (NC) leader and former chief minister Omar Abdullah said his party would strongly oppose any attempt at delimitation without a mandate from the people of the state. PDP chief and former chief minister Mehbooba Mufti said that ‘forced’ delimitation would be seen as an attempt to inflict another emotional partition on the state on communal lines.

Even Sajjad Lone, whose People’s Conference was an ally of the BJP in the previous government, has opposed the idea. The separatists, on whom the government is cracking down, have not publicly reacted on the issue, but they are expected to back any agitation against delimitation.

In 2002, the then NC government led by Farooq Abdullah froze delimitation until 2026 by amending the Jammu & Kashmir Representation of the People Act, 1957, and Section 47(3) of the Constitution of the state. The amended Section 47(3) provided “that until the relevant figures for the first census taken after 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.” That means, delimitation can only take place after Census 2031.

The freeze was effected to bring the state at par with rest of the country as Article 82 and Article 170 of the Constitution of India were amended (Eight-fourth Amendment Act, 2001) to freeze the delimitation of parliamentary and Assembly constituencies throughout the country until the first census is taken after 2026.

However, in J&K, this can be changed on the intervention of the Governor during President’s rule as the legislative authority is vested in the Governor. The Governor is competent to amend Section 47 of the J&K 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-thirds majority and ramp up the number of seats. 

The last time a delimitation exercise took place in the state was also under President’s rule, in 1995, by Justice (retd) KK Gupta Commission when J&K was divided into 87 assembly constituencies. While Muslim majority Kashmir Valley has 46 seats, Hindu majority Jammu region has 36 and Buddhist dominated Ladakh division four. 

According to the 2011 Census, the population of Kashmir Valley was 68,88,475 with 96.40% Muslims. Though it has 15.73% of the state’s geographical area, it holds 54.93% of the population and has 46 seats in the Assembly.

Against this, Jammu division had a population of 53,78,538, of which Dogras, the dominant group, comprises 62.55% of the populace. Jammu has 25.93% of the geographical area and 42.89% of the population, and 36 Assembly seats. 

The Ladakh region has 58.33% geographical area but accounted for just 2.18% of the population, with a mere 2,74,289 people residing there, 46.40% of them Muslims, 12.11% Hindus and 39.67% Buddhists. The region has four seats in the Assembly.

After J&K acceded to India in 1947, NC founder and then prime minister of the state Sheikh Abdullah carved out 30 seats for Jammu region, 43 for Kashmir and two for Ladakh division. The fresh delimitation — if brought about by a Delimitation Commission — could alter the electoral map of the state, thus enabling a larger representation from Jammu by virtue of its size.

Driving a wedge

Under the garb of delimitation, the BJP is trying to pit Jammu against Kashmir at a time when the polarisation in the state is at an all-time high. The real challenge this time is to address the core issues and to win the hearts and minds of the people in Kashmir.

Even the Supreme Court upheld the freeze on delimitation on November 9, 2010 and dismissed the plea that it violated the ‘basic structure’ of the Constitution. Rejecting J&K Panther’s Party chief Bhim Singh’s argument that it would deprive Scheduled Castes and Scheduled Tribes the right to represent the Valley, the apex court said that courts cannot interfere in matters of delimitation as there was an express constitutional bar on such interference.

Delimitation is not the prerogative of the state government, but the Election Commission of India takes the call. However, with J&K currently under President’s rule (since December 18, 2018), Delhi’s move is seen as politically motivated. The reality is that the average population per assembly constituency in Kashmir is nearly 1.5 lakh while it is just over 1.45 lakh in Jammu. The Valley has more seats because it has 15 lakh more people than Jammu region. 

If delimitation is to be carried out, the seats should be increased proportionately and not arbitrarily. During Congress’ Ghulam Nabi Azad’s term as chief minister, he had recommended a proposal of 25% all-round increase in the number of Assembly seats of all three geographical regions of the state, which would have added 22 seats in the Assembly. But the then PDP-Congress alliance did not have the two-thirds heft in the Assembly, and the NC opposed the proposal.

The state BJP has been demanding that 13 seats kept vacant for areas of the state under Pakistani occupation should be given to West Pakistan refugees who have settled in Jammu. The demand, if met, will be stiffly resisted in the Valley and could have serious ramifications.

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