Analysis - Question if how to amend Section-47(3) of J&K Constitution for appointing a new Delimitation Commission
    08-Jun-2019

 
Media was hit with leads “Government planning to redraw Jammu and Kashmir assembly constituency borders”…. “Home Minister Amit Shah considering delimitation of constituencies in J&K” and like on 4rth June just a few days after Modi lead NDA Government was sworn for the 2nd term. Although in May 2014 too BJP Government was sworn in with sufficiently large mandate but not much expectations were shown by the people of J&K as regards appointment of a new Delimitation Commission for delimiting the single member territorial constituencies ( MLAs) of the J&K Legislative Assembly before conducting the assembly polls that were also due in Oct 2014, not only that even after BJP-PDP Agenda for Alliance of date 01-03-2015 was adopted in presence of PM Modi at Jammu that had also included appointment of delimitation commission no any steps were taken by the local government for appointment of a new delimitation commission atleast to ensure some rational distribution of Assembly segments of J&K Legislative Assembly (LA) before next elections that would have been in routine due atleast by 2020 ( now have become due after June 2018).
 
But now after 2019 Lok Sabha Polls where too BJP has secured large majority talks about redistribution of Single Member Segments of J&K Legislative Assembly ( LA) are in air particularly making some references to Mr. Amit Shah Union Home Minister.
 
No doubt it would be a fair justice to the people of J&K in case a new delimitation commission is appointed before elections to J&K LA and the Delimitation Commission this time does its duty truthfully in line with the ‘soul’ of J&K Representation of the People Act 1957 ( Act No IV) that rests in delimiting parameters as laid in Section- 4, Sub Section –2 Clause –a ( i ): Population Clause- a (ii ) : Geographical Compactness Clause – a ( iii) :Nature of terrain Clause – a ( iv) : Facilities of Communication Clause - a ( v) : And the like considerations.
 
 
With the news just flashing ( though with no official confirmation from Union Home Minister ) some sections have hopefully started hoping and demanding (i) new delimitation before holding elections to J&K LA (ii) allocation of 4-5 seats to 1947 Displaced Families from POJK ( even when those claiming to be voice / well wishers of 1947 POJK DPs have not cared to get restored the status of 1947DP of POJK to those families ( 5300 families POJK DPs of 1947 times as per government records) who are staying in other Indian states but were denied the same in 2016 by GOI on the recommendations of J&K Government) (iii) reservation of 2-3 seats in the Assembly for 1989/90 Kashmiri Migrants and the like. But the issue needs to be discussed patiently keeping in view the constitutional provisions / administrative requirements instead of becoming immediately so enthusiastic since even a new delimitation commission can not be appointed without amending The Constitution of J&K ( Section-47) what to talk of reserving seats for POJK DPs & Kashmir Valley Migrants ( that too needs amendment of J&K Constitution Section 48).
 
So, for ordering even appointment of a new delimitation commission in 2019 the first requirement is to amend the Constitution of J&K making use of Section 147 of J&K Constitution so as to undo the ban imposed by 29th Constitution Amendment to J&K Constitution { (THE CONSTITUTION OF JAMMU AND KASHMIR (TWENIY-NINTH AMENDMENT) ACT, 2002 of23rd April_ 2002 amending Sub Section-3 of Section 47 of J&K Constitution so to put practically a bar on fresh delimitation ( distribution) of single member constituencies in the Legislative Assembly till census data after 2026 is made known and that could be only after 2031}
 
 
Let us see how the first requirement, that is of amending THE CONSTITUTION OF JAMMU AND KASHMIR, is met by present BJP headed Union Government / J&K Administration under President Rule to enable appointment of a new Delimitation Commission. Even after that is done it will have to be seen how fairly the New delimitation Commission redistributes the single member segments of J&K legislature assembly over all the areas of J&K keeping in view the J&K Representation of the People Act No. IV of 1957 which allegedly the then Justice K. K. Gupta Commission had not done while issuing it's order in 1995 ( In 1994 I had also submitted a note to the commission in person where in I had made a detailed delimitation exercise keeping in view the guiding parameters as enshrined in J&K Representation of the People Act .1957 as per which areas falling in Jammu province could get atleast 45-46 MLAs and that falling in Kashmir Region could get 38-36 MLA's out of total 87 MLAs with ofcourse Ladakh region getting 4-5 MLAs . Where as the distribution as was ordered by Delimitation Commission in 1994-95 locating 46 MLAs over Kashmir Valley areas and 37 MLAs over Jammu Division areas had so clearly failed the test of logistics looking at the then existing constitutional provisions in Section-50 of J&K Constitution allocating just 12 elected members in J&K Legislative Council to Kashmir Region and instead 14 elected members in J&K Legislative Council for Jammu Region/ Province ( Division ) i.e constitutionally Jammu Region has more elected MLCs (14) and Kashmir region has less elected MLCs ( 12 ) where as inspite of so clear norms laid down in J&K Representation of the People Act 1957 the Delimitation Commission had so erroneously distributed less MLAs ( 37) over Jammu Region in comparison to Kashmir Region (46) .
 
As regards relocation/ rotation of seats reserved for SC and increasing the present number of 7 reserved seats from 7 to 8-9 in view of seats for elections to J&K LA having been increased from 76 to 87 in 1987 can be done by the DC once it is appointed. To have more information in the subject may refer my book "History of Delimitation in J&K" by Daya Sagar .available from Jammu and Kashmir Study Center.
 
Similarly also for reserving seats for Schedule Tribe in J&K LA as is in other Indian states here too Section -49 of The J&K Constitution is to be amended and how can it be got done immediately by Government / Parliament like amending Section-47 of THE J&K Constitution too has to be seen.
The constitutional / legal route to be adopted has to be / might have been traced out by Government / National leadership , so let us wait to know what the present Government has in mind before making any more observations.