Ashok Bhan-
Ashok Bhan is a senior advocate, Supreme Court of India, and a geo-political analyst. The views expressed are his own.
The Delimitation or Boundary Commission of India is a body set up by the government under the Delimitation Commission Act, 2002, to redraw, in consultation with the Election Commission of India, boundaries of assembly and Lok Sabha constituencies based on the latest census.
The representation from a state is not changed in this exercise, but the number of SC (scheduled caste) and ST (scheduled tribe) seats may change in keeping with the census figures. The present constituencies were demarcated on the basis of the 2001 census.
The commission is a powerful and independent body whose recommendations cannot be challenged in any court of law. Its report is laid before the Lok Sabha and the respective state legislative assemblies. No modifications are permitted.
Delimitation commissions have been set up four times in the past — 1952, 1962, 1972 and 2002 — under the 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 programs 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 fewer than 50,000.
After Articles 370 & 35-A of the Constitution were made inoperable in 2019 and the state of Jammu & Kashmir was reorganized into the Union territories of J&K and Ladakh, the J&K Reorganization Act, 2019, mandates redrawing of assembly constituencies.
The process is underway. A commission constituted under Section 3 of the Delimitation Act, 2002, is on the job. Need for delimitation of constituencies arose because the number of seats in the new J&K assembly has been increased to 114.
The process has generated hope among the people, especially the displaced Pandits, that a way will be found to ensure their political representation and empowerment. Accordingly, they have approached the commission with their case for a share for them in the new assembly.
Social Aspect
The three-member commission, set up in March 2020 and headed by retired Justice Ranjana Prakash Desai, has proposed six more seats in the Jammu region and one additional seat in Kashmir in the new 90-member house. Kashmir will thus have 47 seats and the Jammu region 43.
The commission put its report in the public domain recently and invited objections and suggestions from the people. The proposals have been published in the gazettes of India and Jammu & Kashmir.
The displaced Pandits have put up their case for reservation of assembly seats for them. Their representatives consist of various social organizations like AIKS, Kashmir Samiti, Jammu Kashmiri Sabha and Panun Kashmir. The most vocal representation, presented by social activists, former top civil servants, thought leaders and cultural activists led by erudite columnist and prominent leader Ashwani Chrangoo, articulated their cause comprehensively and submitted laws and facts about the specially placed population elsewhere in the country having been accommodated in the constitutional scheme of the country as an exception.
The last memorandum submitted to the commission by Chrangoo, Yoginder Kaul, IPS, and Panun Kashmir president Virender Raina, said, ‘The issue of the displaced Kashmiri Pandits can’t be ignored so far as the political representation of the community is concerned. It will be a worse tragedy than… our genocide and exile. In case this community is left behind, it will be a constitutional sin…. A section of society that is indigenous to the land can’t remain unrepresented in a representative parliamentary democracy in its own state….’
The Pandits have urged the commission to recommend at least three nominated seats in the J&K assembly and a nominated seat in Parliament for them. The community also submitted memoranda to Prime Minister Narendra Modi and Home Minister Amit Shah to move the required amendments to the Constitution.
Case for Amendment
Among the many ethno-cultural, religious and other groups that exist in the melting pot called India, the place of the numerically small but significant Kashmiri Pandit community has stood out as one of privilege. The community which through the ages has made immense contribution to the social, political and religious life of our country is today facing an existential threat. Away from home, it is fast losing its identity and, as a distinct race, is on the verge of extinction.
How the Pandit identity can survive as a distinctive and distinguished cultural group is the moot point. Primarily for this reason, it should come within the ambit of the United Nations Declaration on Rights of Minorities, which the General Assembly adopted recalling Resolutions 46/115 of July 17, 1991, 1992/16 of Feb 21, 1992, and 1992/4 of July 20, 1992, of the U.N. Commission on Human Rights.
Art 1.1 of the U.N. Declaration casts a duty on the State to protect the existence and ethnic, cultural, religious and linguistic identity of minorities within their respective territories and 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 the right for a person belonging to the minorities to participate in the decision-making process at national and appropriate regional levels, wherein they live.
It is pertinent to recall that the National Commission for Minorities (NCM) has expressed concern on the dwindling number of Kashmiri Pandits. Former NCM chairperson Tahir Mehmood wrote to then J&K Chief Minister Farooq Abdullah in 1999, inviting his attention to the miserable plight of the minorities in the state. He wrote, “Our Hindu brethren are in a 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 Jan 21, 1999).
Another NCM chairman, Gayural Hassan Rizvi, told reporters June 13, 2017, “If the definition of minorities has to be revisited, it is my opinion that Kashmiri Pandits should be the first people to be accorded minority status. When minorities in the entire country have that status, privilege and opportunities, why should Kashmiri Pandits, who are a minority in the state, be left out?”
These references are made to assert the right of the Pandits 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 affirmative action in their favor, by reserving seats in the assembly. The following instances should be a guide in the matter.
Four Models
The Sikkim Legislative Assembly has one seat reserved for Buddhist monks who live in monasteries across the Himalayan state. This constituency is not limited by geographical boundaries.
The Supreme Court has, in RC Poudial & Another versus Union of India & Others (1994 SCC Sup 1 324) upheld the constitutionality of this provision on the grounds that though these monasteries are religious in nature, they form a section of society.
The court appreciated Sikkim’s Sangha assembly seat and characterized it as a perfect example of the state’s unique political process to protect minority rights.
The Puducherry Legislative Assembly has 30 elected members. In addition, the government of India is empowered to nominate three members (with voting rights) from among the sections of society that don’t have a chance to reach there by way of election. This model could be replicated in the Union territory of Jammu & Kashmir, too, to facilitate Pandit representation.
In the now defunct assembly of the erstwhile state of Jammu & Kashmir, there was a provision to nominate two women to the house to correct the gender balance.
On a similar principle, demographic balance in the upcoming assembly must be maintained by ensuring representation of all sections, particularly the minorities of Kashmir.
Article 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. The rationale was that the Anglo-Indian community constituted a religious, social as well as linguistic minority, and being numerically small and spread all over India, it wasn’t possible for them to get represented in a general election.
The Pandits are similarly situated, so the logic for Anglo-Indian reservation applies to their case. True, reservation for Anglo Indians lapsed in 2020, but the logic behind it remains intact. The reservation lapsed because only 296 Anglo-Indians remained in the country at that point.
Democracy, a Basic Feature
In Indira Gandhi versus Raj Narain (AIR 1975 SC 2299), the Supreme Court added the following to the list of basic features laid down in the Keshavananda Bharati case (AIR 1973 SC 1461): ‘Democracy which means free and fair election’.
In Union of India versus Association of Democratic Reforms (2002) (SCC 294), the court held that a “democratic republic is part of the basic structure of the Constitution. For this, free and fair periodical elections based on adult franchise are a must.”
In the People’s Union for Civil Liberties case (2013 (6) Supreme 673), the court observed that the decision by a voter to vote or not is his right of expression under Article 19(1)(a) of the Constitution. It said, “The voter’s participation in election is indeed participation in democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign for a growing democracy.”
The Pandits’ right to vote is adversely affected by not having a proper vehicle for representation in the assembly. The candidate who stands in a constituency where exiled Pandits once lived is not known to them, nor does he bother to make himself known to the displaced voters, leave alone inquiring about their problems and concerns. In such a situation, the exile’s right to vote is effectively scuttled. Once a group of voters is excluded from participating in the voting process, it no longer remains a participatory democracy.
If clause A could be added to section 36 of the now repealed JK Representation of Peoples Act to have polling booths away from the jurisdiction of an assembly constituency to allow displaced persons to vote, constituencies can also be carved out for them to ensure their representation in the assembly.
It is hoped that an amendment to the Constitution would be considered by Prime Minister Modi, whom the exiles look up to as one who would deliver them their due, to empower the community politically and bring it back into the country’s constitutional process.
