Justice G D Sharma
Report of Delimitation Commission of the year 1995 is void ab nitio and setting up a new Delimitation commission is a constitutional requirement
Section 3 of THE JAMMU AND KASHMIR REPRESENTATION OF THE PEOPLE ACT, 1957 deals with the Constitution of Delimitation Commission and it reads:-
As soon as may be after the completion of each census, the Governor shall constitute a Commission to be called the Delimitation Commission which shall consist of 3 members namely:-
Two members, each of whom shall be a person who is or has been a judge of the Supreme Court or of a High Court in India; and
A Deputy Election Commissioner nominated by the Chief Election Commissioner;
Provided that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to constitute a Commission to determine the delimitation of Assembly Constituencies in the State under this sub-section.
The Governor shall nominate one of the members appointed under clause (a) of sub-subject (1) to be the Chairman of the Delimitation Commission. The Delimitation Commission shall determine the Delimitation of Assembly Constituencies in the State within such period as may be specified by the Governor.
Section 3-A deals with associate members and it requires that five members of the Legistative Assembly to be nominated by the Speaker should be associated with the Commission but none of the associate members shall have a right to vote or to sign any decision of the Commission.
It is worthwile to mention here that after the census of 1981, the State Government headed by Sheikh Abdullah constituted Delimitation Commission and Chief Justice (Retd.) Wazir Janki Nath was nominated its Chairman. After sometime Chief Justice (Retd.) Mian Jalal-ul-Din succeeded him as a Chairman who already was a member of the said Commission. He remained Chairman for long time but did not give his report. Meanwhile, militancy erupted in the State and under militant’s threat he resigned from the post of Chairman. He had a sitting Judge from Jammu Region namely, Justice K.K. Gupta as a member and after his resignation Justice (Retd.) K.K. Gupta was made the Chairman. In this Commission, Election Commissioner of India namely, Mr. T.N. Sheshan was the third member but for the reasons best known to him he neither attended any meeting nor signed the report which was prepared by the Chairman under his own signatures and of the second member namely, Justice A.M. Mir who was a sitting judge of J&K High Court. The State was at that time under Governor’s Rule (from 1990 to 1996). Prior to the nomination of Mr. T.N. Sheshan as third member his predecessor namely, Mr. Peeri Shastri was the third member who had been attending all the meetings. The President by way of an Ordinance amended sub clause (b) and instead of the Chief Election Commissioner, substituted Deputy Election Commissioner as a third member to be nominated by the Chief Election Commissioner of India. The Ordinance was made a law in the year 1997 by the State Legislature when it came into existence after the general elections of 1996. After the induction of Deputy Election Commissioner nominated by the Chief Election Commissioner as a third member, a new delimitation commission was constituted by substituting Justice (Retd.) G.A. Kuchhay as a member in place of Justice A.M. Mir. Justice (Retd.) G.A. Kuchhay after few days tendered his resignation as a member because he had been receiving threats to his life from militants. The resignation was accepted and Justice Bilal Nazki who was then a sitting judge of the J&K High Court was nominated as a member under Sub-Section 1 (a) of Section 3. Long back in the year 1988, Sub-Clause (2) of Section 4 had been amended and the number of seats in the Legislative Assembly was increased from 76 to 87.
Under Section 4 of the J&K Representation of People Act, the Delimitation Commission had to readjust the extent and boundaries of the Assembly Constituencies and determine the number of seats to be reserved for Schedule Castes. While doing so, Commission had to take due regard to the population of the last census which was held in the year 1981. In the census of 1981; Kashmir Region had a population of 31,34,409 while as, Jammu Region had 27,18,113 inhabitants. The difference of the population was 4,16,791. Ladakh Region had a population of 1,34,372. There were 42 Assembly Constituencies for Kashmir Region and 32 for Jammu Region. The Ladakh Region had 2 Assembly seats. In other words, there was a difference of 10 seats between two Regions namely, Jammu and Kashmir. At this material time, the Delimitation Commission had 11 more seats at its disposal to be distributed amongst the three Regions. The commission allotted 4 seats to Kashmir Region, 5 seats to Jammu Region and 2 seats to Ladakh Region. In this way, presently the Kashmir Region has 46 Assembly seats whereas, Jammu Region has 37 seats and Ladakh Region has 4 seats. Besides taking into account the population of the last preceding census four other factors had to be given due consideration by the Delimitation Commission which are geographical compactness; nature of terrain; facilities of communication; and the like consideration. The Commission had failed to take into consideration all the above stated ingredients of Section 4 and in a casual and perfunctory manner allotted five seats out of eleven seats in favour of Jammu Region. It is noteworthy that this Commission was the first local functional Delimitation Commission headed by a majority of two judges of the J&K High Court while as, the third member was Deputy Election Commissioner of India. They had the ground reality knowledge to adjust the seats by carving out the Assembly Constituencies after taking into consideration the injustice done in the past. It is worthwhile to mention here that first two elections of 1952 and 1957 in J&K were conducted under the control of State Election and Franchise Commissioner. Later, the elections of 1962, 1967, 1972, 1977, 1983 and 1987 were supervised and controlled by Election Commission of India. Before 1967, nominated members were sent to the Lok Sabha from the State of J&K. During 1960, a Delimitation Commission was constituted under the chairmanship of Justice G. I. Kapur with R.C. Soni, Retired Judges of the Punjab High Court and K. V. K. Sundram, Chief Election Commissioner as its members and P. S. Subramanian as Secretary of the Commission. The Delimitation Commission carved out the territory of Constituencies. The Constitution of J&K was enacted in the year 1957 by the Constituent Assembly which had its source from the Constitution of J&K of the year 1939 enacted by the Maharaja and that time; the Constitution of 1939 was still in force. Under the Constitution of 1939, Democratic Rights for holding elections of the ‘Praja Sabha’ for electing the representatives were conferred by the Maharaja on the basis of equality of number of voters. After the Accession of the State with Dominion of India, Constituent Assembly was constituted under the Maharaja’s Constitution of 1939 but Sheikh Abdullah’s administration without any basis carved out 30 seats for Jammu region and 43 seats for Kashmir Region and 2 seats for Ladakh Region. This basic Human Right of equality disappeared when reigns of powers were transferred in a democratic setup headed by Sheikh Mohammad Abdullah. The people of the State had no fundamental rights till the year 1954. They were extended when Bakshi Ghulam Mohammad had replaced Sheikh Mohammad Abdullah as Prime Minister of the State of J&K. The Constitution of J&K came into force on 26-01-1957. Prior to the Constitution of above stated Delimitation Commission, it is reiterated that elections were being held at the discretion of political executive headed by two successive Prime Ministers namely, Sheikh Abdullah and Bakshi Ghulam Mohammad. Already it stands discussed in this book how they were arbitrary and discriminatory in giving equal representation to other two Regions. When the first Delimitation Commission under the supervision of Election Commission of India was set up, the electorates of Jammu and Kashmir enjoyed the fundamental rights with some modifications as guaranteed in the Constitution of India alongwith other citizens of India. The first Delimitation Commission should have addressed itself to safeguard the fundamental rights such as Article’s 13, 19 and 21 but the ground reality reveals that they stand trampled down. Unfortunately, the second Delimitation Commission without showing any compliance to all the ingredients of Section 4 of the Representation of People’s Act perpetuated the injustice which already had been done. The result is that the report of the Commission of the year 1995, would have prospective adverse effect on the electorates of Jammu Region beyond the year of 2031 till new census would be held and the setting up of a Delimitation Commission thereafter takes place. In this way, the report of Delimitation Commission suffers from the vires of inherent patent illegality and as such is void ab nitio. Before the submission of the current Delimitation Commission’s report, elections were held in the year 1987. At that time, the electorate’s strength for Kashmir Region was 19,21,179 while that of Jammu Region was 15,39,269. Average number of electorate’s per Assembly seat for Kashmir Region was 45,742 and for Jammu Region was 48,102. After the submission of the Delimitation’s Commission’s report the electoral strength of 1996 Assembly elections for Kashmir Region was 23,81,859 and for Jammu Region was 22,40,769. Average number of electorates per Assembly seat for Kashmir Region was 51,780 and for Jammu Region 60,561. In the Elections held in the year 2002 for the State Legislative Assembly, the total number of electorates for Kashmir Region was 28,84,852 whileas for Jammu Region was 31,06,280. The average number of electorates per Assembly seat for Kashmir Region was 62,714 and for Jammu Region was 83,964.
In the elections held for Legislative Assembly of the year 2008, the total number of electrorate’s in Kashmir Region was 32,81,113 and in Jammu Region was 30,47,264. The Average number of electrorate’s for Kashmir Region was 71,329 and for Jammu Region 82,358.
From the above quoted figures; it becomes crystal clear that after the submission of the Delimitation Commission’s Report in the year 1995, the average number of electorates per Assembly seat for the Jammu Region is constantly on the increase. It is a matter of great concern that during the elections of 2002 Jammu Region had 2,21,428 more electrorate’s than Kashmir Region but thereafter an adverse trend started and since then the strength of electorates of Kashmir Region is constantly on the increase. Viewed from another angle on the basis of the available figures it is found that difference of average electorates per Assembly Constituency seat in the census of 1981 was much less as the difference of population between the two Regions was 4,16,791 and according to the census of 2011 the population of Kashmir Region has shown an abnormal increase and it has swelled upto 69,07,623 whileas, Jammu Region’s population has increased at a lower scale upto 53,50,811. In other words, Jammu Region has not even doubled its numbers of population. On the contrary, the population of Kashmir Region has reached more than double number of population from the census of 1981 to the census of 2011. To make it more clear the difference of population between the two Regions has gone upto 15,56,812 in the year 2011 from a difference of 4,16,791 in the year 1981. The adverse effect for the denial of fair treatment in respect of electorate’s rights is illustrated by a survey sample of the Assembly elections of 2008 while dealing with the elections of two capital cities of the Regions of Jammu and Kashmir. Assembly Constituency number 71 (Gandhi Nagar) had 143629 electorates whileas; Jammu West constituency number 73 had 139965 electorates. Khanyar constituency of Srinagar District had 48900 electorates and Habakadal Constituency had 49667 electorates. If the electorates of both these Constituencies are clubbed together the total comes to 98567 electorates which figure is less than 45062 electorates of single constituency of Gandhi Nagar. The scales of injustice has tilted in favour of Jammu Region because the Delimitation Commission had not given due regard to the five parameters enshrined in Section 4 of the Act while re-adjusting the extent and boundaries of the Assembly Constituencies. The ruling Party in the State took benefit of this lopsided report by perpetuating their political domination over the electorates of the Jammu Region. At that time, Regional Political Party (NC) had a majority in the Legislature. They amended Section 47 (3) of the Constitution of Jammu and Kashmir in the year 2002 and incorporated a proviso therein which States, “that 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”. The Legislature in the year 2002 resorted to a dubious device for depriving the due share of the electorates of Jammu Region that would have gone to them in accordance with the mandates of unamended Section 3 of the J&K Representation of People Act after the exercise of census of 2001. A Delimitation Commission would have been mandatorily constituted and its verdict had to be carried out. Section 3 (Representation of People’s Act) was amended along with Section 47 (3) of the Constitution of J&K and the bar for readjustment of the total seats available was imposed till the figures of the first census taken after the year 2026 have been published. In other words, the establishment of Delimitation Commission was totally banned at least upto the year 2031. Undoubtly, it is established law that there cannot be equality of the numbers of electorates in each and every constituency of the State because Section 4 of the Representation of The People Act prescribes the method to readjust the extent and the boundaries. This Section envisages that besides taking into account the population figure of the last census, the geographical compactness, nature of the terrain, facilities of communication and the like consideration have to be kept in mind by the Delimitation Commission. After the census of the year 1981, next two censuses were held in the State i.e. in the year 2001 and 2011. After the census of 2001, the electorate’s strength had gone up in Jammu Region because of large scale migration of population from Kashmir Region due to disturbed law and order conditions from the year 1990 onwards. Major chunk of the migrated population is still residing outside the limits of Kashmir Region. In this way, the population of Jammu Region has unimaginably increased but the census of 2011 has turned the table in favour of the electorates of Kashmir Region and the figure as published lacks credibility. The remaining four factors enumerated in Section 4 continuously weigh in favour of Jammu Region ever since the J&K People’s Representation Act was enacted. The gap of strength of electorates is constantly on the increase qua the electorates of Jammu Region per Assemble seat. The fundamental right of equality guaranteed to every Citizen of the Country under Article 14 of the Constitution without just classification cannot be taken away. Article 13 of the Constitution States those laws inconsistent with or in derogation of the Fundamental Rights shall be void to the extent of inconsistency. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. The State Legislature has amended Section 47 (3) and Section 3 of the J&K Representation of People Act by exercising its powers as conferred by Article 370 of the Indian Constitution. The above stated amendments were challenged by a political Party of the State by the name of J&K National Panther’s Party by filing a Public Interest Litigation in the High Court of J&K which was decided by the Division Bench in the case of J&K National Panther’s Party v/s Union of India and Others 2010 (1) SLJ 1. The plea of the petitioner that stoppage of readjustment of the extent and boundaries of the territorial Constituencies affects Democracy as enshrined in the Constitution was not accepted. By dismissing the writ petition, the court was swayed by the principle that “Delimitation for the purpose of dividing the State into single member territorial Constituencies to the extent of number of members of the Legislative Assembly is the mandate of the Constitution and is basic feature of democracy contemplated in the Constitution, but readjustment of the extent and boundaries of such territorial Constituencies upon completion of each census is not such a mandate, nor it is contemplated to be the basic structure of democracy contemplated in the Constitution”. It was further held that right of equality as guaranteed to the Citizens of India does not entail exact equality in the matter of weight of the voter by reasons of the other provisions contained in the Constitution of India.
The petitioner felt aggrieved from the judgment of the Division Bench and filed Civil Appeal No. of 2010 (arising out of SLP (C) No. 22224/09) in the Hon’ble Supreme Court which was dismissed on 09-11-2010. The appellant petitioner had challenged the vires of the amendment of Section 3 of the J&K Representation of the People Act and amendment of Section 47 (3) of the Constitution of J&K on the ground that in view of the postponing of the delimitation of the Constituencies, the growing imbalance in the matter of composition of various Constituencies would continue despite the census operation being carried out. It is an admitted fact that Delimitation Report was given in the year 1995. In the electoral history of the State it was the first judicial verdict when the Commission had two judicial members as Judges of the J&K High Court. One of them who was the chairman was a retired judge and the other was still a serving judge. Both of them were in a better position to know about the Regional aspirations of two Regions but none of them addressed himself to redress the existing imbalances. Under the J&K Representation of People Act, the aims and objects for setting up a new Delimitation Commission after the prescribed time limit was to distribute the Constituencies in the State by readjustment and extent to remove the imbalances caused due to demographical and other changes which subsequently had to occur in the normal course of events. Afterwards, because of amendments incorporated in the State Constitution and J&K Representation of People Act respectively, discriminatory and arbitrary distribution of Assembly seats already favouring the electorates of Kashmir Region would last at least till the year 2031 when blanket ban imposed upto 2026 by the amendments for carrying the census operation would expire. The Delimitation Report of the year 1995 should have been based on the mandates of Section 4 of the J&K Representation of People Act read with the relevant provisions of the Indian Constitution and Constitution of J&K which protect the Constitutional Rights and Statutory Rights of all the inhabitants of three Regions of the State but the factum of imbalances and injustice done to the electorates on Regional basis was allowed to continue unaltered. The first elections of Constituent Assembly were held in 1951. Thereafter the State Assembly Constituency elections were held in the year 1957 and at that time also the Political Executive power as well as Legislative power was overwhelmingly controlled by the leadership of Kashmir Region. During the elections of 1951 even fundamental rights were denied by Sheikh Abdullah to the residents of the State and in an arbitrary and despotic manner he had fixed 43 seats for Kashmir Region and 30 seats for Jammu Region. He had allotted 2 seats for Ladakh Region. Unfortunately, both the above mentioned Delimitation Commissions had failed to set aside the wrongs committed perpetually. To add insult to the injury the past adverse affects for the deprivation of Constitutional and Statutory Rights of the electorates of Jammu Region for 35 years more from the date of second Delimitation Commissions verdict would continue. During the year of 1991, the census operation was due but the same could not be held because of wide spread disturbed law and order conditions on account of onset of militancy. During that period, large scale migration of the population from Kashmir Region took place particularly of Hindu minority community as a whole and selectively amongst the members of the majority community who overtly or covertly had sided with national and secular forces of the Country.
The grievances which the appellant had projected before the Hon’ble Supreme Court have been high-lighted in the judgment and they are: – postponing of the Delimitation of Constituencies as a result of the aforesaid amendments, the growing imbalance in the matter of composition of various Constituencies would continue despite the census operations being carried out. That as a result of census operation, the composition of the population is reflected and that gives rise to an exercise in Delimitation for a proper Representation of the Rights of the People in a democratic polity. Without these demographical changes being properly reflected in the composition of the Constituencies by way of Delimitation exercise, the essence of democracy will be defeated in the elections. That last census was held in 2001 and without setting up a Delimitation Commission and accepting its report, the true voice and popular view of the democracy would not find proper representation. During the course of arguments, the counsel of the appellant had urged that out of 37 Constituencies in Jammu Region, some are reserved for Schedule Castes and Schedule Tribes whereas, of 46 Constituencies in Kashmir Region, not even a single seat is reserved for Schedule Caste and Schedule Tribes when in fact on the basis if electorates strength some Constituencies should have been reserved for Schedule Castes and Schedule Tribes. This means that reserved seats would not be rotated or changed for 35 years.
In para number 11 of the judgment, the Hon’ble Supreme Court has observed that no substantial challenge has been made to the amendment of the Constitution of J&K in the writ petition by the appellant. In para number 12 it is further mentioned, “We do not find adequate pleading challenging the amendment to Section 47 of the Constitution of J&K”. During the course of arguments it was pleaded that not holding of a Delimitation exercise immediately after the completion of the census as a result of the aforesaid amendment is unconstitutional. That amendment was itself violative of the basic structure of the Constitution of India as applicable to the State as well as to State Constitution.
The appeal was dismissed after holding that Delimitation Laws made under Article 327 of the Constitution of India, are immune from the judicial test of their validity and the process of allotment of seats and Constituencies is not liable to be called in question in any court by virtue of Article 329 (a) of the Constitution of India read with Section 142 (a) of the Constitution of J&K. In holding so, the Apex Court was guided by the law laid down by the Constitution Bench of the Supreme Court in the case of R.C. Poudyal and others V/s Union of India and others, (1994) Supp 1 SCC 324 wherein it is held that perfectly arithmetical equality of value of votes is not a Constitutionally mandated imperative of democracy and that even if the impugned provisions make a departure from tolerance limits and the Constitutionally permissible latitudes, the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evolution of Sikkim’s political institutions and same is true in case of J&K State.
Article 327 of the Constitution of India empowers the Parliament to make a law relating to Delimitation of Constituencies. The mandate of Article 329 (a) is that any law relating to the Delimitation of Constituencies or allotment of seats to such Constituencies shall not be called in question in any court. Identical provision has been made in Section 142 (a) of the Constitution of J&K. While dismissing the appeal, it was held that challenge regarding basic structure of the Constitution is also not based on a sound principle.
With due respect to the Division Bench judgment of the High Court as well as that of the Apex Court; it can reasonably be said that the petitioner of this case had failed to project its case in its true perspective on factual and legal matrix. The historical and political background as well as constitutional aspects should have been set out in the pleadings in detail and amendments incorporated in Section 3 of the J&K J&K Representation of People Act as well as in Section 47 (3) of the Constitution of J&K should have been dilated at the touch stone of their Constitutional propriety. At the outset, lopsided, arbitrary and discriminatory nature of the Delimitation Commission report which has shaken the Constitutional structure of the Constitution of India as well as Constitution of J&K should have been discussed in detail within the parameters of law. The injustice done in the report of Delimitation Commission for the fair exercise of voting by the electorates of Jammu Region had shown their adverse effects in the State Assembly elections of 1996, 2002 and 2008 whereby their fundamental rights were trampled. The injustice was done because of aforesaid amendments and the adverse effects whereof would last upto the year 2031 when census would be held and by way of fulfilling the statutory requirement a Delimitation Commission would be setup to readjust the Constituencies and the extent of their boundaries. The ratio decidendi of the case of Keshvananda Bharti v/s State of Kerala 1973 SC 1463 should have been reflected in the pleadings and reiterated in the arguments. The decision was rendered by the Constitution Bench of the Hon’ble Supreme Court consisting of 13 Judges, wherein the basic structure of the Constitution was held to be of unalterable nature. Adverting to the facts of the present case in hand, the amendments in question have violated the Secular Character of the Constitution of J&K as well as that of Constitution of India because the principle’s behind the fundamental rights, their essence and dignity of the electorates of Jammu Region are denied in violations of the guarantees of fundamental rights enshrined in Articles 13, 14, 15 and 21 of the Indian Constitution. The Secular Character is one of the hallmarks of the basic structure but there is discrimination with the electorates of Jammu Region in respect of the weight age of their votes on the basis of Religion and Domicile. Hindus are of minority status in the State but in Jammu Region they are in majority. Instead of protecting their minority status the value of their votes have been devalued. To add fuel to the fire, approximate equality in the voice of every voter irrespective of his/her religious faith in the Jammu Region is a cry in the wilderness. The fundamental right of equality without any justification or classification runs contrary to the Preamble of the Constitutions and basic fundamental structure. In other words, the electorates of Jammu Region can claim equal or more weight age of their votes because their case falls securely within the bounds of criteria laid down in Section 4 of the J&K Representation of People Act as they have more population in many defined areas of their respective Assembly Constituencies. This can be said so because they don’t have comparatable geographical compactness, existence of hilly areas inclusive of barren and inaccessible terrain and less facilities of communication as compared to Kashmir Region which has less number of electorates in their many Constituencies and they have an advantage of geographical compactness, plane nature of terrain and more facilities of communication. The population of Jammu Region is heterogeneous in contrast to the population of Kashmir Region which is homogenous. Statistical figures regarding the vastness of the area of Jammu Region along with other requisite criteria have been stated above and need not to be repeated. It is worthwhile to mention here; that State Legislature and Indian Parliament in the Centre have the powers to amend their Constitutions as well as Statutes falling respectively within their specified domains. This power is restricted to the extent of not rendering any fundamental right as redundant, extinct or abrogated but in the present case, the State Legislature has exercised this power without any justification or classification and thus basic features of the Indian Constitution under above said heads (c), (m) and (n) stand denied. The Constitution does not allow any such amendments under Article 368 of the Indian Constitution which goes against any of the basic feature. On the same basis the principle of free and fair elections as envisaged under above stated head (q) can also be not altered. The above stated heads (q) and (r) are to be given harmonious construction in contrast to contradictory construction. The conclusion arrived at by the Hon’ble Supreme Court in para 31 of the judgment in appeal is the result of not presenting the case on true facts. This discussion would remain incomplete without referring to the Constitution scheme on the basis of historical facts when Constitution of J&K State was enacted because in the judgment in appeal, historical facts of Sikkim State were taken into consideration by allowing the reservation on less number of voters as a whole.
(The author is former Chairperson of Foreign Exchange Management Appellate Tribunal, Govt. of India)
Trending Now
E-Paper
Follow our WhatsApp channel