Justice G D Sharma (Retd)
The Jammu and Kashmir Legislature is bicameral having 111 seats for sending representatives in the Legislative Assembly. Out of these, 87 seats are available for the voters of the Jammu and Kashmir inclusive of two nominated women members by the Governor in this part of the State which is within the Union of India, while the remaining 24 seats have been kept reserved for the elected members of the illegally occupied areas of J&K State by Pakistan. The legislative council has 36 seats as stated in Section 50 of the Constitution of J&K. Section 50 provides that there shall be 11 elected MLCs from Jammu Region as against 11 elected MLCs in the Legislative Council from Kashmir Region inclusive of 2 members from Ladakh Region. In this manner till date Jammu Region has 2 more seats of Legislative Members from Jammu Region than Kashmir Division including Ladakh out of a total of 36 MLCs.
The Delimitation Commission Report of the year 1995 which rules the roost has divided the assembly constituencies of J&K state into 87 segments providing 37 seats for Jammu region whereas, 46 seats to Kashmir valley and 4 to Ladakh region. The Jammu region has an area of 26000 sq. kms and Kashmir province comprises of 15120 sq. kms. The rest, which is more than 57000 sq. kms goes to the share of Ladakh region. According to the census of 1941, the population of the state exclusive of Ladakh and Gilgit areas is tabulated hereunder alongwith census reports of 1981, 2001 and 2011.
It is pertinent to mention here that the number of voters in 2001census was 29,00,000 in Kashmir region and number of voters was 30,59,000 in Jammu region.
Not only that, the difference between the population of Kashmir Region and Jammu Region in 1981 census was 416791 and now in the recent census of 2011 such difference has swelled upto 1140021. This un-phenomenal rise in Kashmir Region despite wide spread migration of 1990 raises a reasonable doubt about the authenticity of census and requires correction.
The J&K National Panthers Party filed PIL before the Division Bench of the J&K High Court wherein the report of the Delimitation Commission was challenged. The writ petition was dismissed but the principle was accepted by holding, “Delimitation Commission 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 territorial constituencies upon such completion of each census is not such a mandate, nor it is contemplated to be the basic structure of democracy contemplated in the Constitution.” The petitioner felt aggrieved and filed Civil Appeal No. 2010 (arising out of SLP (C) Number 22224/09) in Supreme Court. Sec 3 of the J&K Representation of the People Act and amendment of Sec 47(3) of the State Constitution were challenged. The appeal was dismissed and in Para no. 11 of Judgement, the Supreme Court had observed that no substantial challenge has been made to the amendment of the Constitution of J&K in the writ petition by
appellant. In para 12 it was also stated, “we do not find adequate pleading challenging the amendment to Section 47 of the Constitution of J&K.” The sheet anchor of the controversy which requires consideration at the threshold is the amendments engrafted in the year 2002 to the relevant provisions of the State Constitution and the J&K Representation of People Act respectively whereby discriminatory and arbitrary distribution of Assembly seats by Delimitation Commission already favouring the electorates of Kashmir Region would last at least till holding the census in 2031 when blanket ban imposed upto 2026 by the relevant provisions as stated above would expire.
While deciding the appeal the Supreme Court has referred Article 327 of the Constitution of India which says that Delimitation Laws 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 versus 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 (State) political institutions and the same is true in case of J&K State.
With due regard to the law laid down by the Supreme Court, which holds the field yet in the case of J&K there is still grey area for fresh consideration and adjudication because Delimitation Commission’s report suffers from inherent Constitutional defects thereby shaking the basic structure of the Constitution which is the law of the land laid down by 13 judges of the Supreme Court in the case of Kesavananda Bharati versus State of Kerala (1973)4 SCC 225.
In this case, the basic structure in its essential broader sense has been stated consisting of the following features:
Supremacy of the Constitution.
Republican and Democratic form of Government.
Secular Character of the Constitution.
Separation of powers between the Legislature, the Executive and Judiciary.
Federal character of the Constitution.
The Supreme Court in the above said appeal SLP 22224/09 in para number 29 of its judgment has elaborated the concept of the basic structure in a more explicit, transparent and exhaustive manner.
Shorn of unessential which are not germane to the present controversy the remaining are stated as under:
(b) The principles behind Fundamental Rights.
(c) The objectives specified in the Preamble to the Constitution.
(i) Freedom and dignity of the individual
(m) The ‘essence’ of other Fundamental Rights in Part III.
(n) The concept of social and economic justice- to build a welfare State.
(q) The principle of free and fair elections.
(r) Limitations upon the amending power conferred by Art. 368.
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 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 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 Constitution and the basic fundamental structure. In other words, the electorates of Jammu Region can claim equal or more weight of their votes because their case falls securely within the boundary 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 do not have comparable geographical compactness, existence of hilly areas inclusive of barren and inaccessible terrain and less facilities of communications as compared to Kashmir Region which has less number of electorates in their many constituencies and they have an advantage of geographical compactness, plain 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 be repeated. 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. This discussion would remain incomplete without referring to the Constitution scheme on the basis of historical facts when accession of the State was made in 1947 by the sole authority under law i.e. Maharaja Hari Singh and subsequently when Constitution of J&K State was enacted because in the judgment in appeal in the Supreme Court, historical facts of Sikkim State were taken into consideration by allowing the reservation on less number of voters as a whole. The findings of the Delimitation Commission also run contrary to the preamble of State Constitution as well as purport and mandate of Section 50 of the State Constitution. It also militates the relevant provisions of the J&K Representation of People Act.
Before concluding it is relevant to mention that only Jammu Region provides accommodation for the reservation of Schedule Caste quota which requires rotation in Kashmir Region also on the basis of floating population of nomadic tribes which remain for six months in Kashmir Region also. The Schedule Tribe electorates also stares at the face of Commissions findings.
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