The roots of injustice that has been meted out to the people of Jammu region can be traced back to the year 1951, when the Constituent Assembly was framed; The representatives were selected and got elected without any authentic number of population of the two divisions. Former judge of the J&K High Court, GD Sharma explains why delimitation of J&K is a necessity
In the 19th century, Maharaja Gulab Singh, a valiant Dogra soldier and statesman par excellence, had succeeded in building his kingdom from the debris of Maharaja Ranjit Singh’s empire after the latter’s demise. He falls in the line of great historical kings like Samrats Vikramaditya, Ashoka, and Napoleon to some extent, who had extended the boundaries of their kingdoms across the sub-continent. He organised Dogras of Jammu region belonging to all castes, creeds, and thus energised the inherent fighting spirit amongst them. His newly created kingdom was/is not only a landmass but it is territory inhabited by people professing different faiths, speaking different languages and dialects. He brought the heterogeneous population of three regions – Jammu, Kashmir, Ladakh inclusive of frontier “Illaquas of Skardu, Kargil (known as Baltistan) and Gilgit (Agency, consisting of some smaller principalities annexed-therein subsequently under his rule). In this manner, he carved out the biggest State in Indian History which existed till the time of Partition in 1947. This state was bigger in area than the areas of 111 free countries individually of the world. The State had/has a unique strategic position of exceptional importance as its boundaries touch the boundaries of the erstwhile British province of Punjab and Afghanistan, Russia, Tibet and China. During the rule of his great-grandson Maharaja Hari Singh, the area of the State was 222236 sq.kms. Freedom of the country was a boon for the Indian Nation but proved a bane for Dogras inhabitants of J&K State.
On the basis of 1941 census held during Maharaja Hari Singh’s time vide report dated 15-10-1940 and 16-10-1940, the population of the State, along with censuses held during 1941, 1981 and 2011 are tabulated here (see tables).
To make it clear, the Jammu Province has the additional quota of votes of 382002 voters and in case the mandate and spirit of Section 50 of the State Constitution is taken into account along with requirements of Section 4 of the J&K Representation Act, one additional Parliamentary Seat can be legally claimed along with corresponding increase in J&K Assembly Constituencies.
On 20th April, 1951, Dr Karan Singh being the Regent of the State proclaimed for constituting the Constituent Assembly (to frame Constitution of the State of J&K). In that proclamation, 75 Constituencies for elections were earmarked for the State of J&K and 25 Constituencies were reserved for the area which is illegally occupied by Pakistan by aggression.
On 31st Oct.1951, the first session of Constituent Assembly was held under the tenure of Sheikh Abdullah as Prime Minister. This Assembly was constituted under the Constitution of 1939 framed by Maharaja Hari Singh. After the aggression, there was no official record of the population but Sheikh Abdullah without consultation of the Maharaja who was ruler at that time carved out 75 Constituencies. In an arbitrary and capricious manner, he reserved 43 Constituencies for Kashmir Region, 30 for Jammu Region and 2 for Ladakh Region. At that time, there was only one regional political party in Jammu Region known as “Praja Parishad” which was challenging the autocratic behaviour of Sheikh Abdullah. Sheikh captured all the 75 constituencies in the Constituent Assembly. Yousef Korbel, in his Book “Danger in Kashmir” at Page 222 has recorded ‘such a success even a dictator cannot achieve’. This was a very calculated move of Sheikh Abdullah to place Kashmir Region at the dominant position over other two regions and then dictate terms to the Central Government for getting removed Maharaja Hari Singh as a ruler of the State and take all the reigns of governance in his hands as an Absolute Monarch.
The elections of 1951 had lost their credibility after the disturbances of 1947 when Hindu population stood uprooted from about half of the area from Jammu Region and from whole Muzaffarabad District and part of a Baramulla District from Kashmir region. Some of them were massacred in communal frenzy by the locals and some by Pakistani raiders. They were not allowed by Sheikh Abdullah to settle in Kashmir Province but pushed to Jammu Region. Similarly, Muslims of Jammu too equally suffered. A substantial number of them migrated to Pakistan. In a nutshell, there was no authentic electoral roll prepared by an independent agency to prepare an authentic report of eligible voters.
The elections of 1957 for Legislature Assembly were held under local Election Commission and Bakshi Ghulam Mohammad at that time was the Prime Minister. In that election, Praja Parishad could win only 5 seats despite 17 nomination papers were filed to contest the elections. There was great hue and cry over malpractices in these elections. Credible evidence was available that ballot boxes were defective and in them votes were tampered.
The jurisdiction of the Election Commissioner of India was extended to J&K only after 1960. Elections of 1951 and 1957 were conducted under the control of State Elections and Franchise Commissioner. Before 1967, nominated members were sent to Lok Sabha from the State of J&K. The Elections of 1962 were held under the control of Election Commission of India. During the elections of 1962/1977 Jammu Region had been able to secure 2 more seats in instalments at different times and thus number rose to 32. From the Kashmir region, one seat was decreased and it was made 42.
When the census of 1981 was held, Sheikh Abdullah was Chief Minister. Under political compulsions, he constituted Delimitation Commission and retired Chief Justice of J&K High Court Wazir Janki Nath was appointed as its Chairman and Justice Mian Jalal-ud-Din and S.L. Shakdar as Members. After the expiry of the term of Chairman J N Wazir Chief Justice (Retd.), Mian Jalal-ud-Din was made Chairman. He did not give his report and resigned in 1991. Then Justice K.K. Gupta was appointed Chairman. This was a heyday for militancy and some Muslims retired Judges from Kashmir Valley as members had to tender resignations under threats.
Finally, after a long drama of several years, the Delimitation report came on 27.04.1995. 46 segments of electoral constituencies were made for Kashmir region, 37 for Jammu region and 4 for Ladakh region. It is unfortunate for the inhabitants of Jammu region to remain deprived of getting their due share because of the amendment of Section 47 of the Jammu and Kashmir Constitution in 2002 (during Dr Farooq rule) and by virtue of it any addition or alteration of Constituencies upto the year 2026 stands freezed. In this way, the domiciles of Jammu region has to face the injustice of having equal rights of voting till 2031 when census would be held and the Delimitation Commission constituted.
The political party, JKNPP, challenged the amendments of the relevant provisions of J&K Representation of People Act as well as Section 47(3) of the J&K Constitution by a PIL in High Court of J&K which was decided by the Division Bench reported in (2010 (1) SLJ Page 1). The writ petition was dismissed.
The plea of the petitioner was that the stoppage of readjustment of the extent and boundaries of territorial constituencies affects democracy as enshrined in the Constitution was not accepted. The Court was swayed by accepting the principles 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 the 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 then filed Civil Appeal Number of 2010 (arising out of SLP (C) No 22224/09 in the Supreme Court which was dismissed on 9 Nov. 2010. The main thrust in the appeal was a challenge to the vires of the amendment of Section 3 of the J&K Representation of People Act and amendment of Section 47 (3) of the Constitution of J&K on the ground that composition of various constituencies would continue despite the census operation being carried out. It was also pleaded that without giving a proper representation of people of the State, the assurance of delimitation will be defeated in the elections and that the figures of the census of 2001 had required setting up of a Delimitation Commission after accepting it so that true and popular view of the democracy could surface. It was also pleaded that against the 37 constituencies of the Jammu Region, some are reserved for SC & ST whereas out of 46 constituencies in Kashmir Region not even a single seat is reserved for them. It would result in that reserved seats would not be rooted or changed for 35 years. The appeal was rejected.
By and large, on behalf of the domiciles of Jammu, a correct and true factual and legal matrix was neither set out in the pleadings nor advanced during the arguments. In my view the ratio decided in the above-referred Judgments is not applicable to the case of the J&K.
Injustice was done to the domiciles of Jammu Region from the year 1951 when the Constituent Assembly was framed as without any authentic number of population of the two divisions, the representatives were selected and got elected. Also, the mass migration of Hindu population from Kashmir Region estimated about 3.5 lakhs inclusive of migration faced by some patriotic members belonging to majority community on the onset of militancy during 1990 have not been taken into account by Delimitation Commission. Not only that, the remaining three requirements of Section 4 of the Act were not considered. In this manner, the report of the Delimitation from the very beginning was void ab initio.
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. As an instance, the electorates strength of Gandhi Nagar and East Constituency of Jammu region of the year 2008 are taken as an example in contrast with two constituencies of Srinagar City (Khanyar and Habakadal) the total of the two constituencies of Srinagar City remains behind by 45,062 electorates of single constituency of Gandhi Nagar. Same is the case of Jammu City East Constituency. To add fuel to the fire, appropriate equality in the voice of every voter irrespective of his/her religious faith in the Jammu region remains a cry in the wilderness. The fundamental right of equality without any justification or classification runs contrary to the Preamble of the Constitution and basic fundamental structure. In other words, the electorates of Jammu region can claim equal or more weight of their votes because their case falls within the bounds of criteria laid down in Section 4 of the Act as they have more population in many defined areas of their respective Assembly Constituencies. It is worthwhile to mention here that State Legislature and the Parliament have 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 stand denied. The Constitution does not allow any such amendments under Article 368 which goes against any of the basic features.
A democratic polity is governed by a written Constitution and rule of law is paramount. Judiciary is regarded as a sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the hope and faith of the people in the constitutional system are not atrophied.
(The writer is Retd judge of J&K High Court and is a Member of Governing Council of National Foundation for Communal Harmony Government of India)