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Delimitation Commission and the case of Kashmiri Pandits

by | Apr 8, 2022 | India

The Delimitation Commission is appointed by the President of India and works in collaboration with the Election Commission of India. It is appointed for the purpose of drawing up the boundaries of constituencies all over the country.  The Delimitation Commission or Boundary Commission of India is a commission established by the Government of India under […]
"... and there were Kashmiri Pandits too." by Joe Athialy is marked with CC BY-NC-SA 2.0.

The Delimitation Commission is appointed by the President of India and works in collaboration with the Election Commission of India. It is appointed for the purpose of drawing up the boundaries of constituencies all over the country.

 The Delimitation Commission or Boundary Commission of India is a commission established by the Government of India under the provisions of the Delimitation Commission Act. The main task of the commission is redrawing the boundaries of the various assembly and Lok Sabha constituencies based on a recent census. The representation from each State is not changed during this exercise. However, the number of SC and ST seats in a state are changed in accordance with the census. The present delimitation of constituencies has been done on the basis of 2001 census under the provisions of Delimitation Act, 2002.

The Commission is a powerful and independent body whose orders cannot be challenged in any court of law. The orders are laid before the Lok Sabha and the respective State Legislative Assemblies. However, modifications are not permitted.

 Delimitation commissions have been set up four times in the past — 1952, 1962, 1972 and 2002 — under Delimitation Commission Acts of 1952, 1962, 1972 and 2002.

The union government had suspended delimitation in 1976 until after the 2001 census so that states’ family planning programmes would not affect their political representation in the Lok Sabha. This had led to wide discrepancies in the size of constituencies, with the largest having over three million electors, and the smallest less than 50,000. 

After the Articles 370 & 35-A were made inoperable and the State reorganisation, the J&K Reorganisation Act, 2019 mandates gerrymandering of assembly constituencies through the process of delimitation.

The delimitation  process of Assembly Constituencies, as envisaged by The J & K Reorganisation Act, 2019  (Act) is under way. Delimitation Commission constituted under Section 3 of the Delimitation Act, 2002 is on the job. The need  for delimitation of the constituencies arose because the number of seats in J & K Legislative Assembly  has been increased  to 114.

The delimitation process has  generated     hope    among     the  people especially in the displaced  Pandits  that  a way will be found out to ensure their political representation & empowerment. Accordingly, they have  approached  the Commission with their well-founded case for having  a statuary share carved out for them in the upcoming State Assembly.    

Social Aspect

The three-member commission, was setup in March 2020 and is headed by Justice (Retired) Ranjana Prakash Desai, proposed six more seats in the Jammu region and only one additional seat in Kashmir in the proposed 90-member house.

Kashmir will be have 47 seats and Jammu region 43 seats. 

The Delimitation Commission, mandated to redraw the assembly and parliamentary constituencies in Jammu and Kashmir, put its report in the public domain on Monday and invited objections and suggestions from people.

The Delimitation Commission has published its report in the gazettes of India as well as Jammu and Kashmir regarding the proposals.It has proposed six more seats in the Jammu region and only one additional seat in Kashmir in proposed 90-member legislative assembly house.Kashmir will have 47 seats and Jammu region 43 seats. 

 The displaced Pandits put up their case strongly before the commission for reservations of assembly seats for them. Organisations such as the AIKS, Kashmir Samiti, Jammu Kashmiri Sabha and Punun Kashmir, apart from  former civil servants, and columnist Ashwani Chrangoo, articulated the position of KPs. They submitted law and facts about the specially placed population elsewhere in the country having been accommodated in the constitutional scheme of the country as an exception. KPs urged the commission at least put in a para or two in their final report recommending at least three nominated seats in the J & K assembly and a nominated seat in the Parliament. Similarly the community submitted memoranda to PM Modi and Home Minister Amit Shah to effect required and specific amendments in the Constitution in this regard.

 Case for Constitutional amendment 

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 an existential threat today. Away from home, they are fast losing their identity and, as  a distinct community, is on the verge of extinction. How can KP identity survive as a distinctive community is the moot point. Primarily, for this reason, it should come within the ambit of the United Nations Declaration on Rights of Minorities, which General Assembly adopted recalling Resolutions 46/115 of 17.07.1991, 1992/16 of 21 Feb 1992 and 1992/4 of 20.07.1992 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, wherein they live.

It may be pertinent to recall that  the National Commission for Minority  expressed concern on  the dwindling number of KPs. Former Chairperson of National Commission for Minorities, Tahir Mehmood, wrote  to  the then 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 accorded 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 the Parliament has to decide but I will definitely raise the matter in the appropriate forum .”

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 favour, 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 like a floating constituency. 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  characterised it as a perfect example of state’s unique political process to protect minority rights.

Puducherry Model

Puducherry Assembly has 30 elected members and in addition the Government of India is empowered to nominate 3 members  (with voting powers ) to the Assembly  -from  among   the sections of society who don’t have chances to reach  thereto  by  way of election. This model could be replicated in case of J&K UT, also to facilitate the KP representation.

 

Nominated Women Erstwhile Assembly

In the  erstwhile J&K Assembly there was provision for nomination of two women   members   to the House, in order to correct the gender balance. On the same principle demographic balance, in the upcoming  Assembly, has to be maintained by ensuring representation of all sections – particularly the minorities  of Kashmir whom the Kashmiri Pandits  constitute the main bulk.

Anglo Indians

Art 331 of the Constitution of India, reserved   seats  in the Lok Sabha and made provision for State Assemblies to reserve seats for the  Anglo-India Community. Rationale behind the reservation was  that Anglo Indian community constituted a religious, social as well  as  a linguistic minority, and being numerically small community interspersed all over India, it wasn’t 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 lapsed in 2020 but the logic behind it remains intact.    It got lapsed because  only 296 Anglo-Indians  remained in the country.

 Basic Feature of the Constitution

In Indira Gandhi versus Raj Narrain  (AIR 1975 SC 2299), the  Supreme Court  added  following to the list of Basic Features  law laid down  in Keshvananda  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 the 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 exiled Pandits once lived,  is   not known to them nor does the candidate ever  bother to make himself known to the  displaced voter, leave alone enquiring about his problems and concerns which  the  displaced Pandits 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 the 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, besides the two houses of Parliament.

The Delimitation Commission  is hemmed in  by  the constraints of law. It may not be able to address this  demand of the KPs in the desired manner. It requires  amendments to the Constitution and other law. 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 an Assembly Constituency to facilitate a displaced person to cast vote, similarly constituencies could be carved out for them to   ensure their representation in the  Assembly.    

The head count of people  and geography are inalienably  integral to the whole electoral regime  of which the Delimitation of Assembly constituencies is an important component. Precisely, to mark the point, the Delimitation Act 2002  lays   emphasis on Census   (Section 8) and compactness of Geography (Section 9)   for   delineation of Assembly  or Parliamentary Constituencies.

For the  reasons mentioned  herein above both Census and the Geography    elude them. There has been no head count of them, nor  do they  have  the Geographic compactness   to live in  present. With the result KPs stand thrown out of the electoral regime. This amounts to their disenfranchisement and denial of   citizenry rights which are available to their compatriots in the country.

In addition, this constitutes a   grave  violation of  Human Rights. There can be no worse  example of a whole community being excluded from the electoral process. The situation goes against the letter and spirit of the Delimitation process.

The opinions expressed by the writer are solely his current opinions and Do Not reflect the opinions of Raisina Reports.

Ashok Bhan
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Ashok Bhan is a practicing Senior Advocate with extensive experience in arguing complex cases before Supreme Court of India ,all High Courts and various other courts in the country. He is a distinguished member of the Supreme Court Bar Association in India and is a well-recognised Arbitrator in the country.