Delimitation in JK: Agenda and Realities
A A Latief UZaman Deva
With the de-operationalisation of Article 370 of the Constitution of India all the provisions of the Constitution without any exceptionor modificationbecame applicable to the erstwhile State of Jammu and Kashmir, later downgraded into two union territories of J&K and Ladakh. Under section 14(3) read with section 60(1) of the J&K Reorganisation Act, 2019 (Act of 2019) 114 seats have been provided for the J&K Legislative Assembly out of which 24 are reserved for the territories which are currently with Pakistan [section 14(4a)]. It is worth noting that under section 14(4)(b) of the Act of 2019 such 24 seats are to be excluded for the purposes of carrying out delimitation of constituencies in the new union territory and therefore the delimitation restricted to 90 seats only.
Law and the precedents in J&K
By virtue of 84th Constitution amendment Act 2001,enactedduring the Vajpayee regime, in Article 170 of the Constitution the delimitation of constituencies of all the State Assemblies has been frozen till 2026 when the relevant data of Census 2021 is supposed to be available but the votaries of ‘One Nation and One Law’ chose to make an exception in case of J&K on spurious grounds including the one related to the reservation of seats in the Assembly for STs which could have been settled without reopening the delimitation itself. With a view to bypass the prohibition laid down under Article 170, Article 239 has been applied to J&K under the Act of 2019 which originally has application to the UT of Pondicherry with implications for application of a law notwithstanding being contrary to the Constitution. On the strength of section 62(2) of the Act of 2019 the Delimitation Act 2002 applies to the union territory of J&K and for the purposes of delimitation reference to the population is to be construed as population determined by the 2011 census [section 62(1)(b)]. The population of the erstwhile state in accordance with the 2011 census was 1,25,41,302 and by excluding 2,74,289 as the population of the Ladakh, the population of the union territory of Jammu and Kashmir comes down to 1,22,67,013. Article 170(2), for the purposes of delimitation in states prescribes that “each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State.” This suggests that as a primary criterion the average population should be the same throughout the constituencies. Given the total number of seats in the legislative Assemblyof the union territory (90) and the total population (1,22,67,013), the average population that each constituency must have is 1,36,300. Even though Article 170 does not talk of union territories, but as the highest law of the land, it provides the primary guiding principle governing the delimitation law i.e. population is to act as the principal factor for delimitation of constituencies.
The “other factors’’ that are to be employed for delimitation are contained in section 60(2) of the Act of 2019 namely “(a) all the constituencies shall be single-member constituencies; (b) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them, regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and conveniences to the public; and (c) constituencies in which seats are reserved for the Scheduled Castes and the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total population is the largest.” Sub-clauses (b) and (c) are important.Sub-clause (b) mandates that the delimited constituencies based on population must be geographically compact areas, and while delimiting them, factors such as physical features, boundaries of administrative units, facilities of communication and public conveniences are to be taken into consideration. Sub-clause (c) is self-explanatory.
In the delimitation of Jammu and Kashmir legislative Assembly constituencies by the Delimitation Commission headed by Justice KK Gupta in 1995, the number of seats in the legislative assembly was increased from 76 to 87 and dispersal thereof made on the basis of population across the state except in districts of Leh and Kargil where the number of assembly segments was increased from one each to two each on the basis of distinct and unique geographical factors separating the two from rest of the state but despite being constituents of Kashmir Division the relaxed standards stood applied to the areas concerned only and not to the entire Kashmir Division. The concept was further implemented in districts Baramulla (now Bandipora) and Kupwara where new assembly constituencies namely Gurez and Karnah were carved out respectively on the strength of reasons aforementioned. Relevant to mention that ethnically and linguistically the people in the two districts of Leh and Kargil and assembly segments Gurez and Karnah are separate and together with the isolation imposed by geographical conditions resulting in their areas remaining out of bounds for six to eight months from rest of the erstwhile state.
National-level positions
The population as a preponderant factorhas been the hallmark in the delimitation of parliamentary constituencies which is illustrated down below by the number of parliamentary (Lok Sabha) constituencies allotted to Uttar Pradesh, Madhya Pradesh, Assam, Jharkhand and NCT of New Delhi:
S. No. State/UT No. of parliamentary (Lok Sabha) constituencies Total Population (2011) Area (kms) Average Population per parliamentary constituency Average area per parliamentary constituency
1. Uttar Pradesh 80 19,98,12,341 2,40,928 24,97,654 3,011.6
2. Madhya Pradesh 29 7,26,26,809 3,08,245 25,04,372 10,629.134
3. Assam 14 3,12,05,576 78,438 22,28,969 5,602.72
4. Jharkhand 14 3,29,88,134 79,714 23,56,295 5,693.85
5. NCT of New Delhi 7 1,67,87,941 1,483 23,98,277 211.85
In recent years the delimitation was undertaken in the states of Gujarat and Uttarakhand where Patwar Halquas to Revenue sub-divisions as administrative units were broadly adopted without splitting them for delineating the boundaries of Assembly segments on the basis of average population worked out by dividing the state population with the number of Assembly Segments and departures made as exceptions to the general criteria regardless of the size of population wherever the geographical contiguity and other factors in mapping of a Constituency made it apart and distinct from the surrounding areas owing to mountains, river systems and communications impediments.
Malafide narratives
Known Dogra centric contrarians in Jammu City have already vitiated the environment for dispassionate debates by questioning the veracity of Census 2011 by demanding the factors like number of voters and expanse of area to be adopted as the main criteria for delimitation of Constituencies. These three planks are examined as under:
Population: As in the past right from 1891, the Census of India 2011 was also undertaken in the States by the Office of the Registrar General India through the Regional Directorates under the supervision and control of the former. The animosity against Muslim population has been the traditional disposition of thriving bigotry but this time around even central government’s institutions are not being spared little realizing about the all-pervading non- existence of Muslims in the hierarchy more so at decision-making rungs in the whole country.
Out of 125 lakh persons listed as State population 6.05 lakh persons have returned such mother tongues as are neither prevalent nor spoken in J&K nor specified as regional languages in the Constitution of erstwhile State.
Evidently these persons are employees of GOI or migrant workers or both which is corroborated by the mismatch in their gender break up and incidentally overwhelmingly co-religionists of hate mongers. This Segment of population doesn’t fall in the category of permanent residents of the State and don’t even qualify for domicile status under the new rules in force.
The percentage of population by religion for Hindus shall reduce to 24.98 from 28.44 once these non-natives are set apart. Out of these 6.05 lakh persons 32223, 1,65,083 and 4,03,024 are in Ladakh, Kashmir and Jammu Divisions respectively with mother tongues like Assamese, Bengali, Bodo, Gujarati, Kannada, Konkani,Maithili ,Malayalam, Manipuri Marathi, Nepali, Odia, Santali,Sindi, Tamil ,Telugu, Hindi, Urdu and many more other scheduled and non- scheduled languages.
The question raised about this segment of population is best answered in the electoral rolls of the pair districts of Ladakh reflecting as they just 50 (35+15) Hindu voters and not 19,334 @ 60:40 criteria applicable to Hindu population 32,223 figuring in the census of 2011. These persons are obviously non-natives working in the union territory and the same applies pari passu to J&K. However the official Census shall be the basics in various projections and conclusions of this write up but then who should ring alarm bells about the genuineness of the total population of J&K?
Voters and their numbers: Generally 35 to 40 % of the total population fall in the age group of 0 to 18 and hence the number of voters not to exceed 60% of the population except in specific categories of people for reasons of life expectancy being beyond 70 and highly lowest rate of infant mortality but the persons above the age of 08 during the Census enumeration becoming eligible for registration as voters by the next phase of the enumeration of following decadal Census doesn’t make substantial difference in the projections due to the rate of deaths, migrations and uneven population growth rates in various communities.
While the percentage of voters is 71.29 against the population of 5236348 in Jammu Division; it is 58.33 in Kashmir Division for population of 7023665 and by excluding the persons not speaking such mother tongues as are in J&K the percentage in former grows to 77.23 and in latter 59.73. Individual cases of district of Reasi, Kathua and Jammu depict voter percentage to Census population at 83.75, 79.80 and 71.55 respectively. By excluding 91733 migrants from the population of Jammu District, being registered voters in respective Assembly Constituencies in Kashmir Division, the percentage of voters jumps to 76.11 from 71.55.
The uprising like situation accompanied with total apathy of eligible persons for being registered as voters in Greater Kashmir witnessed quite negligible accretion in voter lists from 1986-87 to 2002-03 when quite on heels of Assembly elections 2003 under the subterfuge of voter identity cards the mobile population in the Valley was left with no option except to get enrolled in the Voter lists resulting into the substantial upsurge in the no of voters which continues thereafter but large sections of society still not in mainstream politics has led to shortfalls in the number of voters viz .the population on the analogy of standards at national level about percentage of voters over the population (above 60%).
Let the protagonists of ‘foulness’ find the subtext detailed above against the vicious propaganda unleashed by frontal organizations of the Hindutva& answer about the mismatch between the population and no of voters in Dogra Loop of Jammu Division.
Area: J&K is undoubtedly an excellent example of unity in diversity as otherwise its 04 constituent units have nothing in common excepting administrative exigency with origin to the formation of the State way back in 1846.Geographically, ethnically and linguistically being apart from one another excepting commonalities between the Kashmir Valley and Chenab Valley the 04 regions are Jehlum Valley (Kashmir Division), Chenab Valley(outer Hills), Peer Panchal(Jhelum basin) and the sub-mountainousand semi- mountainous tract of Kathua, Samba, Jammu, Udhampur and Reasi Sub-Division. Nowhere in the world the quantum of area in itself is the bedrock for apportionment of seats in the legislative bodies and even the position at national level as expatiated elsewhere in the write up does point towards the population as the sole determining factor essentially as it is people who are to be represented in the Assembly and not lifeless immoveable land mass.
The law laid down for J&K envisages the population as the determinant pivotal factor for fixing the number of Constituencies for the legislative Assembly and while doing so an area inaccessible, for larger parts of the year due to the geographical factors or isolated owing to canals, effusive and fiercely flowing rivers or highways with vehicular traffic of high density or linguistic majorities as an exception to the ethnic and linguistic background of surrounding areas could be delineated by properly fixing the boundaries for constituting as a separate Constituency whether the criteria for average population arrived at is met with fully or not.
The Division or region as a unit is alien to the law of delimitation but by assuming it to be a relevant indices the benefits as outcome of the exercise should percolate down to the area itself. Chenab Valley with population of 924345 spread over the highly mountainous and relatively rugged terrains has on an average 1948.5 Sq kms per Constituency in contrast with Jammu District with 1438225 population(less by migrants) on area to the extent of 3097 Sq kms representing 1.30 lakh population on an average for an average area of 281 Sq kms and it is in this behalf maintained that the benefit of topography and vast inaccessible areas if at all made admissible contrary to the germane of law and rules should go to the area concerned.
From another angle of total geographical area and population of Jammu loop from Patnitop to Lakhanpur as a distinct geographical region the average population and area per Constituency in all the 04 districts is 1.39 Lakhs and 452 Sq kms and in Kashmir Division it is 1.52 lakh population and 347 Sq kms respectively. The difference of 5.98 Lakh population favouring Kashmir Valley is off-set by the area factor in Jammu Loop even though contrary to the law but somehow Valleyites having acquiesced with the patent distortion no further comments offered.
On the basis of law the benefit for areas attracting the application of ‘’ other factors’ while mapping the Constituencies it is Marwah and Wardwan, Padder and Gool in Chenab Valley qualifying for separate Constituencies as already such dispensation extended to Gurez and Karnah in the districts of Bandipora and Kupwara together with Leh and Kargil districts by Delimitation Commission in 1995 but as the accord of such treatment has to be intra-Districts the same may lead to indefensible outcries in the concerned areas by communities losing even the existing advantages. (To be continued)
(The write-up will figure in two episodes. This portion will be followed by another one tomorrow. The author is an IAS (Retd ) and former Chairman of the J&K Public Services Commission. He can be reached on aaluzdeva_221256@ymail.com)
